Original
Wordprocessor Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 371 N.J. Super. 119, 854 A.2d 917.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, L-3502-01.
Stone Mandia, attorneys for appellant (Richard
B. Stone, of counsel and on the brief).
Campbell, Foley, Lee, Murphy and Cernigliaro,
attorneys for respondent (Stephen J. Foley,
Jr., on the brief).
The opinion of the court was delivered by
R. B. Coleman, J.A.D.
Defendant Teague Hibbard, who sued in the underlying civil action to recover compensatory
and punitive damages for bodily injuries sustained as a result of an assault,
is appealing from an order granting summary judgment to plaintiff State Farm Fire
& Casualty Company (State Farm) in this declaratory judgment action brought by State
Farm for a determination that it has no duty to defend or to
indemnify defendant Vincent Connolly under the terms of a homeowner's insurance policy issued
to Connolly's parents.
See footnote 1 We reverse and remand for further proceedings.
The policy in question extends liability insurance coverage to an insured for bodily
injuries caused by an "occurrence." It defines an "occurrence" as "an accident .
. . which results in bodily injury . . . during the policy
period." The policy excludes from coverage bodily injuries which are "either expected or
intended by an insured" and those which result from the "willful and malicious
act of an insured." The motion judge concluded that the injuries sustained by
Hibbard were expected and intended by the insured, Connolly and, therefore, the policy
exclusion applied to deny coverage.
Connolly was charged with second degree aggravated assault in connection with an August
21, 1999 attack on Teague Hibbard at Club XS, a night club in
Seaside Heights. On July 23, 2001, the State amended that charge to third
degree aggravated assault, causing "significant bodily injury under circumstances manifesting extreme indifference to
the value of human life in a reckless manner."
N.J.S.A. 2C:12-1b(7). Connolly pled
guilty to that charge in exchange for which the prosecutor recommended and the
judge imposed a probationary sentence. During the plea hearing on July 23, 2001,
Connolly admitted that he was in the bathroom at Club XS where there
was a fight involving Hibbard. He also provided the following response to his
attorney's questioning:
Q. At that time, did you act in a reckless manner, causing --
with extreme indifference to Mr. Hibbard, causing him significant bodily injury?
A. Yes.
The trial court found that this was an adequate factual basis for the
plea which was accepted pursuant to R. 3:9-2. In accordance with the negotiated
plea agreement, Connolly received a non-custodial sentence to five years probation.
Five months later in his December 20, 2001 deposition in the civil action
brought by Hibbard, Connolly denied that he was present at Club XS on
the night of the assault. When reminded of his admission at the plea
hearing, he explained that he entered the guilty plea for two reasons --
one, economic and the other pragmatic:
I entered the plea for two reasons; one, it was an economic reason.
I was already fifteen thousand into my lawyer. The second was if, in
fact, somehow we took it to trial and I was guilty, there was
a jail term of seven years [the presumptive term for a second degree
offense]. So the prosecutor and my lawyer came up with if I took
the plea there was going to be no jail time, it was going
to be probation. But for those reasons I took the plea.
Connolly also provided certified answers to interrogatories in which he averred that he
was not the individual who attacked and beat up Hibbard in the bathroom
at Club XS. His answers to interrogatories 2 and 3 were as follows:
2. I have no knowledge of the occurrence set forth in the complaint,
as I did not participate in any assault on the plaintiff.
* * *
3. I have no facts in connection with the alleged assault on the
plaintiff, except to state that if the plaintiff was assaulted, it was by
some third person unknown to me.
The motion judge concluded that Connolly was estopped from taking a position contrary
to that which he had taken at the plea hearing in the criminal
matter. He ruled:
The bare assertions that he was not the assailant or the evidence creates
an issue of fact as to who may have been the assailant are
unpersuasive before this court. The record clearly imputes the assault upon him. He
pleaded guilty before Judge Citta to an act placing himself squarely there. In
addition thereto, the plaintiff himself clearly presents the defendant there. The only evidence
to refute this inference is from Connolly's subsequent reversal of his original story
in his interrogatory responses and deposition. Such evidence is not dispositive in the
face of the overwhelming evidence indicating that he, in fact, was the assailant.
I am satisfied he cannot take inconsistent positions before this court. He is
collaterally estopped from so doing.
We disagree. Based upon his understanding that Connolly was estopped from denying that
he assaulted Hibbard, the motion judge impermissibly decided issues of fact. Brill v.
Guardian Life Ins. Co. of America,
142 N.J. 520, 540 (1995).
Although Connolly's admission in the plea hearing certainly is admissible as bearing upon
his credibility in the civil action, a jury should be permitted to consider
his explanation in evaluating his credibility. N.J.R.E. 803(c)(22); N.J.R.E. 803(a); N.J.R.E. 803(b) and
N.J.R.E. 613. Contrary to the motion judge's determination, our Supreme Court has held
that collateral estoppel and other issue preclusionary doctrines do not preclude a person
in a civil proceeding from taking a position inconsistent with his guilty plea.
In State, Dept. of Law and Pub. Safety v. Gonzalez,
142 N.J. 618,
623 (1995), the Court concluded that, "because of the strong public policy of
maintaining integrity in the casino industry, a casino employee may not present evidence
contradicting his or her convictions." Likening a casino employee license revocation hearing to
an attorney disciplinary proceeding, the Court reached the same conclusion based on the
doctrine of judicial estoppel, a doctrine that "'bar[s] a party to a legal
proceeding from arguing a position inconsistent with one previously asserted.'" Id. at 631-32,
(citing N.M. v. J.G.,
255 N.J. Super. 423, 429 (App. Div. 1992); and
Levin v. Robinson, Wayne & LaSala,
246 N.J. Super. 167, 178-79 (Law Div.
1990)). "Judicial estoppel, however, is an 'extraordinary remedy' that courts invoke 'only when
a party's inconsistent behavior will otherwise result in a miscarriage of justice.'" State
v. Jenkins,
178 N.J. 347, 359 (2004) (quoting Kimball Int'l, Inc. v. Northfield
Metal Prods.,
334 N.J. Super. 596, 608 (App. Div. 2000), certif. denied,
167 N.J. 88 (2001) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d
355, 365 (3d Cir. 1996))). Despite its refusal to permit the defendant in
State, Dept. of Law and Pub. Safety v. Gonzalez, supra, to deny his
prior representations as he sought to retain his casino license, the Court recognized
that in other contexts, a collateral attack of a guilty plea is permissible.
It stated:
It is beyond dispute that in a trial involving a cause of action
based on tort or contract, a party's guilty plea may be used as
affirmative, substantive evidence against that party. Eaton v. Eaton,
119 N.J. 628, 643,
575 A.2d 858 (1990); Stoelting v. Hauck,
32 N.J. 87, 106,
159 A.2d 385 (1960). In such civil proceedings, the guilty plea is introduced into evidence
as an admission, but it does not constitute conclusive proof of the facts
underlying the offense. Eaton, supra, 119 N.J. at 644,
575 A.2d 858. In
that context, "the party who has entered the plea may rebut or otherwise
explain the circumstances surrounding the admission." Ibid. (citations omitted). Consequently, the doctrine of
issue preclusion does not prevent the pleading party in the trial of a
tort or contract claim from contesting the admitted facts.
[State, Dept. of Law and Pub. Safety, supra, 142 N.J. at 629.]
In addition to the doctrine of judicial estoppel, it is also apparent that
collateral estoppel does not apply. See, e.g., Garden State Fire & Casualty Co.
v. Keefe, 172 N.J. Super. at 53, 60-61 (App. Div.), certif. denied,
84 N.J. 389 (1980), observing that "a plea-entry proceeding is not and does not
purport to constitute a full and fair litigation of the issues. To the
contrary, it represents a defendant's option to forego such litigation and usually for
reasons having little or nothing to do with the nature of the issues
themselves."
We do not perceive that a miscarriage of justice will result from Connolly's
attempt in this declaratory judgment action to repudiate his admission at the plea
hearing. He has the onus of the criminal conviction and the administration of
civil justice is not prejudiced by his seeking a determination of coverage.
Moreover, where, as here, an innocent third party, such as Hibbard, who is
seeking compensation for injuries received as a result of the alleged conduct which
is the subject of the guilty plea, we have shown a reluctance to
treat the guilty plea as preclusive. See, e.g., Prudential Property and Casualty Ins.
Co. v. Kollar,
243 N.J. Super. 150 (App. Div. 1990) (holding that defendant's
plea of guilty to aggravated arson not conclusive on insurer's attempt to disclaim
coverage in subsequent subrogation action brought on behalf of victim); and Garden State
Fire and Casualty Co. v. Keefe, supra, 172 N.J. Super. at 55 (holding
that defendant's plea of guilty to atrocious assault and battery not conclusive on
insurer's attempt to disclaim coverage in subsequent negligence actions brought by victim of
shooting). See alsoBurd v. Sussex Mutual Ins. Co.,
56 N.J. 383 (1970)
(declining to accord preclusionary effect to the insured's conviction of atrocious assault and
battery to establish the insured's intent to harm the victim and recognizing that
the victim had an interest in the liability policy sufficient to be heard
on questions of coverage and that he should not be estopped by a
judgment entered in a proceeding begun after he was injured if he was
not a party to it).
Because he concluded that the guilty plea could not be collaterally attacked, the
motion judge failed to recognize that material issues of fact actually existed as
to whether Connolly was or was not at Club XS at the time
of the attack upon Hibbard, and if he was there, whether he committed
acts which would come within the exclusionary provisions of the policy. Based upon
our review of the record, the evidence against Connolly is not as overwhelming
as the motion judge obviously believed. In his own answers to interrogatories, Hibbard
stated that he "went to the men's room and while standing at the
urinal, I was struck from behind. The next thing I realized was when
I woke up on the steps located in the alley." Also, the police
reports included in the record make it fairly clear that Hibbard did not
see who or what struck him.
Connolly was not immediately arrested and he was not arrested in Club XS.
Rather, he was arrested after he had allegedly fled to avoid apprehension when
friends of Hibbard supposedly identified him as the assailant. According to one police
report, an unknown witness stated that four males repeatedly kicked Hibbard about the
head and body while he was unconscious on the floor. Statements given by
two of Hibbard's friends to the Seaside Heights Police Department were included in
the record on the motion, however, the record does not include affidavits or
certifications of these individuals. Neither of their statements was recorded on the date
of the event. The statement of Erick Hnyda was given on January 7,
2000, approximately four and one-half months after the incident. The statement of Brian
Marsh was given even later, on May 12, 2000.
Hnyda disclosed that he was in the bathroom waiting in line when "in
the corner of my eye, we see somebody getting punched by at least,
at least three different people and it went on for at least a
couple of minutes until the kid crawled up into a ball on the
floor and they kept beating him and then we, we all realized that
it was . . . enough." Hnyda indicated that after the police arrived,
he and his friends went through the club and then went out front
where they saw two people across the street who ran when they were
pointed out. His friends gave chase and he believed the individuals were apprehended
by the police. He felt he could identify one of the actors [Connolly]
based upon photographs shown to him.
According to his statement, Brian Marsh was on his way to the bathroom
and saw a bunch of people running, trying to get out and trying
to get in at the same time. He saw a bunch of kids
in there "waltzing around whatever but the kid that was on the ground
was being kicked by . . . the kid I picked out on
the picture [Connolly]." He observed the kicker leave as the bouncers came in.
He went outside to get the police and to get an ambulance and
said " . . . as we went in front of the club,
towards the end of the night, we seen (sic) the kids just walking
across the street, all shady and somebody pointed at them and they started
running, and so a bunch of people started running after them." It was
his understanding that at least one of the assailants was apprehended after he
hopped over a fence. He identified a photograph of Connolly as one of
the kickers in the bathroom.
The motion judge rejected the request by Hibbard's counsel for a plenary hearing
to determine the coverage issue. He reasoned,
. . . if in fact, his story is true that he wasn't
in that bathroom and did not commit the assault, there is no coverage
for you here. They will not pay a dime, this carrier, because he
wasn't there, did nothing wrong, played no part, could not have been negligent.
If, on the hand, the other side of the coin, he was there
and kicked him in the head, there's a closed head injury, and I
find that under the Voorhees case and . . . under the cases
before the court, the Harleysville case and the like, that the act is
so closely related to the injury that I don't need a factual injury
inquiry, you don't get coverage there either.
Contrary to the judge's reasoning, if Connolly's current story that he was not
at Club XS is true, he is entitled to a defense under the
policy and to exoneration by the trier of fact. On the other hand,
if he was there and assaulted Hibbard, the judge was correct -- he
would not be entitled to be indemnified.
In Voorhees v. Preferred Mutual Ins. Co.,
128 N.J. 165 (1992) and it
companion case, SL Industries, Inc. v. American Motorists Ins. Co.,
128 N.J. 188
(1992), the Supreme Court reiterated that the duty to defend is generally determined
by comparing the allegations in the complaint with the language of the policy.
When the two correspond, the insurer must defend the suit. Voorhees, supra, 128
N.J. at 173; SL Industries, Inc., supra, at 197. When multiple alternative causes
of action are stated, the duty to defend will continue until covered claims
are eliminated. In this case, the complaint alleges causes of action against Connolly
for negligence and recklessness as well as for willfully, intentionally and wantonly committing
an assault and battery.
The exclusionary provision of the policy in SL Industries was the same as
that involved in this case. It defined an "occurrence" as an "accident .
. . which results in bodily injury . . . neither expected nor
intended from the standpoint of the insured." In that case, the Supreme Court
agreed with our emphasis on the insured's intent to cause injury rather that
on his intent to commit the act that resulted in the injury. In
other words,
[a]ssuming the wrongdoer subjectively intends or expects to cause some sort of injury,
that intent will generally preclude coverage. If there is evidence that the extent
of the injuries was improbable, however, then the court must inquire as to
whether the insured subjectively intended or expected to cause that injury. Lacking that
intent, the injury was "accidental" and coverage will be provided.
[SL Industries, supra, 128 N.J. at 212.]
In this case, the motion judge concluded that if Connolly did kick Hibbard,
that act would have had an inherent probability of causing the degree of
injury actually inflicted. Consequently, a factual inquiry into the actual intent of the
actor to cause that injury was not necessary. We agree with that proposition;
however, we disagree that the threshold determination that Connolly was the actor is
conclusively established by the guilty plea. That is not a determination which can
be made as a matter of law on the record which currently exists.
We reverse and remand for further proceedings.
Footnote: 1
State Farm's initial complaint was only against Vincent Connolly. On November 26,
2001, it amended its complaint to name as defendants all remaining parties to
the underlying tort action, plaintiff Teague Hibbard, defendant Fred Caruso and defendant Club
XS (incorrectly identified in the caption as "Club X's"). A voluntary Stipulation of
Dismissal with prejudice was filed as to defendant Fred Caruso before State Farm's
motion for summary judgment was filed. Connolly opposed State Farm's motion, but Teague
Hibbard is the only party who appealed from the grant of summary judgment
in favor of State Farm.
