http://blog.cuyler.com/2008/04/24/appellate-division-sides-with-insurer-in-denying-coverage-in-sex-abuse-case/ Musings on New Jersey Law or "A buncha lawyers rowing and blogging..." Wed, 07 Jan 2009 01:09:40 +0000 http://wordpress.org/?v=abc http://blog.cuyler.com/2008/04/24/appellate-division-sides-with-insurer-in-denying-coverage-in-sex-abuse-case/#comment-304 Blake Palmer Tue, 13 May 2008 18:53:23 +0000 http://blog.cuyler.com/?p=57#comment-304 NJ Court Rules Part II govern appeals to the New Jersey Supreme Court from a final judgment of the Appellate Division. In this case there appears no basis for further appellate review as of right, and thus review by the Supreme Court would require the Supreme Court to review it on certification under Rule 2:12. Under Rule 2:12-3 a party seeking certification must file a petition for certification within 20 days from the entry of the Appellate Division ruling. A petition for certification is granted on the affirmative vote of 3 or more of the justices of the Supreme Court (New Jersey's Supreme Court has 7 justices). R. 2:12-10. The applicable standard is that "[c]ertification will be granted only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court; if the decision under review is in conflict with any other decision of the same or a higher court or calls for an exercise of the Supreme Court's supervision and in other matters if the interest of justice requires...." R. 2:12-4. As you note, there would appear to be some conflict in New Jersey's appellate case law regarding the applicability of homeowners insurance to torts involving sexual misconduct. NJ Court Rules Part II govern appeals to the New Jersey Supreme Court from a final judgment of the Appellate Division. In this case there appears no basis for further appellate review as of right, and thus review by the Supreme Court would require the Supreme Court to review it on certification under Rule 2:12. Under Rule 2:12-3 a party seeking certification must file a petition for certification within 20 days from the entry of the Appellate Division ruling. A petition for certification is granted on the affirmative vote of 3 or more of the justices of the Supreme Court (New Jersey’s Supreme Court has 7 justices). R. 2:12-10. The applicable standard is that “[c]ertification will be granted only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court; if the decision under review is in conflict with any other decision of the same or a higher court or calls for an exercise of the Supreme Court’s supervision and in other matters if the interest of justice requires….” R. 2:12-4. As you note, there would appear to be some conflict in New Jersey’s appellate case law regarding the applicability of homeowners insurance to torts involving sexual misconduct.

]]> http://blog.cuyler.com/2008/04/24/appellate-division-sides-with-insurer-in-denying-coverage-in-sex-abuse-case/#comment-292 Rich Crooker Thu, 24 Apr 2008 17:24:56 +0000 http://blog.cuyler.com/?p=57#comment-292 I will wait to see how the substance of this ruling is addressed at the Supreme Court level (in this or a subsequent case) before expressing confidence that this holding will be the law. Reasons include (a) whether a "subjective" or "objective" standard of intent is applied, the record on the husband's intent is difficult to square with the burden typically required for a finding of noncoverage under these provisions -- the real facts are not reported, but the opinion gives no suggestion of any evidence of actual knowledge or culpability on his part; (b) the Supreme Court may have a different opinion on whether an innocent homeowner would "reasonably expect" coverage for allegations of negligence notwithstanding that the direct cause of harm was unquestionably criminal behavior by others within the home, even if the perpetrator was the insured's spouse not entitled to coverage under the circumstances; and (c) the Supreme Court may have a different opinion on whether the availability of coverage for the innocent spouse would incentivize or disincentivize that person from reporting sexual misconduct by a spouse when discovered. Maybe we'll find out. Do you know if certification is being sought? I will wait to see how the substance of this ruling is addressed at the Supreme Court level (in this or a subsequent case) before expressing confidence that this holding will be the law. Reasons include (a) whether a “subjective” or “objective” standard of intent is applied, the record on the husband’s intent is difficult to square with the burden typically required for a finding of noncoverage under these provisions — the real facts are not reported, but the opinion gives no suggestion of any evidence of actual knowledge or culpability on his part; (b) the Supreme Court may have a different opinion on whether an innocent homeowner would “reasonably expect” coverage for allegations of negligence notwithstanding that the direct cause of harm was unquestionably criminal behavior by others within the home, even if the perpetrator was the insured’s spouse not entitled to coverage under the circumstances; and (c) the Supreme Court may have a different opinion on whether the availability of coverage for the innocent spouse would incentivize or disincentivize that person from reporting sexual misconduct by a spouse when discovered. Maybe we’ll find out. Do you know if certification is being sought?

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