Cigna v. Exec. Risk Indemnity and Nutmeg Ins. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CIGNA CORPORATION, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EXECUTIVE RISK INDEMNITY, INC. AND
NUTMEG INSURANCE COMPANY,
Appellees No. 3538 EDA 2013
Appeal from the Order October 21, 2013
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: February, Term, 2012 No. 003993
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 03, 2015
Appellant, Cigna Corporation, appeals from the order granting
summary judgment in favor of Appellees, Executive Risk Indemnity, Inc. and
Nutmeg Insurance Company, and dismissing Appellant’s complaint with
prejudice.1 Appellant sought a declaration of coverage under a fiduciary
liability policy for ERISA2 violations found in an underlying federal class
action. Appellees denied coverage under a policy exclusion for deliberately
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*
Retired Senior Judge assigned to the Superior Court.
1
Although the order appealed from is dated October 18, it was docketed on
October 21. We have amended the caption accordingly.
2
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–
1461.
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fraudulent or criminal acts or omissions. Appellant challenges the trial
court’s application of the fraudulent acts exclusion. We affirm.
The material facts of the underlying litigation are not in substantial
dispute, although the parties disagree markedly on the legal consequences.
(See Appellant’s Brief, at 5-18; Appellees’ Brief, at 4-14). However, this
protracted course of litigation has extended longer than a decade. We
summarize only the facts most relevant to this appeal.3
On December 21, 1998 Cigna amended its retirement plan, retroactive
to January 1, 1998. In simplified terms, Cigna converted its traditional
defined benefit pension plan to a cash balance plan. Cigna assured plan
participants in the notification materials that the conversion would not affect
benefits accrued as of December 31, 1997. In fact, the conversion was
presented as an enhanced benefit. Nevertheless, there is no dispute on
appeal that under certain circumstances some plan participants would have
their expected benefits or accruals reduced or frozen, in a process
designated “wear away.”4 Furthermore, there is no dispute that to avoid an
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3
A more complete factual account is contained in Amara v. CIGNA Corp.,
534 F.Supp.2d 288 (D. Conn. 2008), and Amara v. CIGNA Corp., 559
F.Supp.2d 192 (D. Conn. 2008), as well as the Supreme Court’s discussion
of the case in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). To avoid
confusion, and aid in clarification, rather than employ sequential numerals,
we will continue to provide citations for the various stages of the Amara
litigation, unless the specific case cited is otherwise clear in context.
4
“Wear away occurs when an employee continues to work at a company but
does not receive additional benefits for those additional years of service.”
(Footnote Continued Next Page)
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anticipated employee backlash at the wear away phenomenon (and the
possible reduction in retirement benefits), Appellant withheld or declined to
provide documentation which would have confirmed the risk of reduced
benefits.
In 2001, plan participants brought a class action lawsuit on behalf of
some 27,000 employees, alleging in essence that the plan amendments had
the net effect of reducing benefits or benefit accruals for some plan
participants in violation of ERISA. Eventually, Judge Mark R. Kravitz, of the
federal district court in Connecticut, decided that Appellant’s changes were
permitted under ERISA, but that Appellant or its affiliate pension plan had
violated ERISA-required notice provisions by providing misleading summary
plan descriptions (SPD’s) and Summaries of Material Modifications (SMM’s)
_______________________
(Footnote Continued)
Amara v. CIGNA Corp. 2014 WL 7272283, *4 (C.A.2 (Conn. (C.A.2
(Conn.), filed December 23, 2014).
Wear away means that there are periods of time in which the
employee’s account balance is less than the employee's
minimum benefit. What wear away means in practice is that
even though an employee is continuing each year to receive pay
and interest credits under Part B, and the employee's account
balance may even be growing, it nonetheless remains less than
the minimum benefit earned as of December 31, 1997; in effect,
where there is wear away, even though the employee continues
to work for CIGNA and continues to receive benefit credits, the
employee’s expected retirement benefits have not grown beyond
what the employee was entitled to under Part A as of December
31, 1997.
Amara v. Cigna Corp., 534 F.Supp.2d 288, 303-04 (D. Conn. 2008).
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in an apparent effort to forestall objections from plan participants. See
Amara v. Cigna Corp., 534 F.Supp.2d 288, 296 (D. Conn. 2008) (referred
to by the parties as Amara I).5 In pertinent part, the district court
summarized its findings of fact and conclusions of law as follows:
[I]n effectuating the conversion to the cash balance plan, CIGNA
did not give a key notice to employees that is required by
ERISA; and CIGNA’s summary plan descriptions and other
materials were inadequate under ERISA and in some instances,
downright misleading. ERISA gives employers substantial
leeway in designing a pension plan, and the Court believes that
CIGNA’s Plan complies with the relevant statutory provisions.
However, ERISA also emphasizes the importance of disclosure by
employers to employees regarding the details of the company’s
pension plan, to enable employees to plan for their retirement
and to make decisions of profound importance for their lives.
This is where CIGNA failed to fulfill its obligations; the company
did not provide its employees with the information they needed
to understand the conversion from a traditional defined benefit
plan to a cash balance plan and its effect on their retirement
benefits.
Id. (emphasis added).
In a subsequent opinion, Judge Kravitz ordered the reformation of the
contract (the pension plan) as a remedy for Appellant’s violations. See
Amara v. CIGNA Corp., 559 F.Supp.2d 192, 222 (D. Conn. 2008). The
parties cross-appealed. The Second Circuit affirmed in an unpublished
opinion. See Amara v. CIGNA Corp., 348 Fed. Appx. 627, 2009 WL
3199061 (C.A.2 (Conn.) 2009).
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5
This decision is also variously referred to by the parties and the trial court
as the “Liability Opinion.”
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However, the United States Supreme Court vacated and remanded.
See CIGNA Corp. v. Amara, 131 S. Ct. 1866 (U.S. 2011). In reviewing
whether the district court applied the correct legal standard for relief, the
High Court reasoned, in part, that the district court relied on the wrong
ERISA remedy provision. See id. at 1871.
On remand, because Judge Kravitz had died in the meantime, the case
was reassigned to District Court Judge Janet Bond Arterton. Judge Arterton
decided in pertinent part that the remedy of contract reformation was
appropriate. Specifically, she decided that:
CIGNA engaged in fraud or similarly inequitable conduct.
See 3 John N. Pomeroy, A Treatise on Equity Jurisprudence
§ 873 at 421 (5th ed. 1941) (stating that while “fraud” has no
precise definition in equity, it generally consisted of “obtaining
an undue advantage by means of some intentional act or
omission that was unconscientious or a violation of good faith”);
see also Tokio Marine & Fire Ins. Co. v. Nat'l Union Fire
Ins. Co., 91 F.2d 964, 966 (2d Cir. 1937) (reformation was
appropriate based on one party’s unilateral mistake combined
with the fact that the court could infer that the other party knew
of the mistake, knowledge which alone qualified as the
“inequitable conduct” necessary to reform the contract).
CIGNA’s deficient notice led to its employees' misunderstanding
of the content of the contract, and CIGNA did not take steps to
correct their mistake. Instead, CIGNA affirmatively misled and
prevented employees from obtaining information that would
have aided them in evaluating the distinctions between the old
and new plans. See Amara I, 534 F.Supp.2d at 343 (finding
that CIGNA informed its benefits department and consulting
company not to provide benefits comparisons under the old and
new plans). Furthermore, CIGNA sought and obtained an
advantage from its inequitable actions. See id. (finding that
CIGNA intentionally and successfully avoided adverse employee
reactions, which had caused other employers to modify their
intended cash balance plans).
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As a result of CIGNA’s fraud, its employees were mistaken
as to their retirement benefits.
Amara v. CIGNA Corp., 925 F.Supp.2d 242, 253 (D. Conn. 2012) (one
citation omitted; emphasis in original).
The Second Circuit affirmed. See Amara v. CIGNA Corp., 2014 WL
7272283 (C.A.2 (Conn.) filed December 23, 2014). In specifically
addressing the issue of fraud, the Second Circuit explained:
(a) Fraud
While no “single statement . . . accurately define[s] the
equitable conception of fraud,” it generally consists of “obtaining
an undue advantage by means of some act or omission which is
unconscientious or a violation of good faith.” 3 John N.
Pomeroy, A TREATISE ON EQUITY JURISPRUDENCE § 873 at 420–
21 (5th ed. 1941). Here, defendants misrepresented the terms
of CIGNA’s new pension plan and actively prevented employees
from learning the truth about the plan. As Judge Kravitz put it in
Amara I, “CIGNA employees suffered from the lack of accurate
information in CIGNA’s disclosures, and CIGNA was aware of this
fact.” Amara I, 534 F.Supp.2d at 342; see also id. at 349(deciding that CIGNA made “materially misleading statements”
about wear away). CIGNA’s misbehavior was designed to “ease
the transition to a less favorable retirement program.” Id. at
343. As a result, the district court did not err in finding that
defendants obtained undue advantage through these actions by
avoiding adverse employee reactions. See Amara IV, 925
F.Supp.2d at 253 (ruling that “CIGNA engaged in fraud or
similarly inequitable conduct”).
Id. at *13.
During the relevant time period, Appellant was insured under a multi-
line insurance policy, including professional liability and fiduciary liability.
The primary insurer was Certain Underwriters of Lloyd’s of London.
Appellees were excess carriers whose obligations were determined on a
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follow-form basis to the Lloyd’s of London policy (i.e., tracking the terms,
conditions, and exclusions of the primary Lloyd’s policy).6
In 2012, Appellant filed the complaint at issue in this appeal, seeking,
inter alia, a declaratory judgment to declare coverage under the fiduciary
liability provisions of the policy for claims made against it in the underlying
class action, Amara v. Cigna Corp., 534 F.Supp.2d 288 (D. Conn. 2008)
(and its progeny). Appellees filed a motion for summary judgment. The
trial court granted the motion for summary judgment, and dismissed
Appellant’s complaint with prejudice in an order and opinion dated October
18, 2013, and docketed on October 21, 2013. Appellant filed a motion for
reconsideration, which the trial court denied.7 This timely appeal followed.8
Appellant raises two questions for our review on appeal:
1. Did the trial court commit an error of law or abuse of
discretion in applying the “deliberately fraudulent acts” exclusion
to preclude coverage under the Fiduciary Liability coverage part?
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6
Other excess carriers settled separately. (See Appellant’s Brief, at 16 n.7;
see also Appellees’ Brief, at 14 n.3).
7
In any event, it would appear, as argued by Appellees, that Appellant’s
motion for reconsideration was untimely. See Pa.R.C.P. No. 227.1(c)
(“Post-trial motions shall be filed within ten days . . . .“); (see also
Appellees’ Brief, at 14).
8
The trial court did not order a statement of errors. See Pa.R.A.P. 1925(b).
The trial court filed an opinion on January 2, 2014, referencing and adopting
its order and opinion of October 18, 2013, as its opinion on appeal. See
Pa.R.A.P. 1925(a).
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2. Did the trial court commit an error of law of abuse of
discretion in finding that Amara v. CIGNA Corp. 925 F.Supp.2d
242 (D. Conn. 2012) . . . constitutes a “final judgment” sufficient
to effectuate the application of the “deliberately fraudulent acts”
exclusion?
(Appellant’s Brief, at 4).
Our review on an appeal from the grant of a motion for
summary judgment is well-settled. A reviewing court may
disturb the order of the trial court only where it is established
that the court committed an error of law or abused its discretion.
As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof
. . . establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418,
429 (Pa. 2001) (citations and quotation marks omitted). Furthermore,
[W]e apply the same standard as the trial court, reviewing all
the evidence of record to determine whether there exists a
genuine issue of material fact. . . . Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [his] cause of action.
Summary judgment is proper if, after the completion of
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discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial would require
the issues to be submitted to a jury. Pa.R.C.P. 1035.2. Thus, a
record that supports summary judgment will either (1) show the
material facts are undisputed or (2) contain insufficient evidence
of facts to make out a prima facie cause of action or defense
and, therefore, there is no issue to be submitted to the jury.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions. The
appellate Court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Where the discretion exercised by the trial court is challenged on
appeal, the party bringing the challenge bears a heavy burden.
[I]t is not sufficient to persuade the appellate court that it
might have reached a different conclusion if . . . charged
with the duty imposed on the court below; it is necessary to
go further and show an abuse of the discretionary power.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill
will, as shown by the evidence or the record, discretion is
abused.
Nat’l Cas. Co. v. Kinney, 90 A.3d 747, 752-53 (Pa. Super. 2014) (case
citations and quotation marks omitted).
The interpretation of an insurance policy is a question of
law that we review de novo.
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Our purpose in interpreting insurance contracts is to
ascertain the intent of the parties as manifested by the
terms used in the written insurance policy. When the
language is clear and unambiguous, we must give effect to
that language. However, when a provision in the policy is
ambiguous, the policy is to be construed in favor of the
insured to further the contract’s prime purpose of
indemnification and against the insurer, as the insurer
drafts the policy and controls coverage.
Lexington Ins. Co. v. Charter Oak Fire Ins. Co., 81 A.3d 903, 908 (Pa.
Super. 2013) (citations omitted).
Whether [the insurer] breached a duty imposed by contract is a
legal conclusion. Mellon Bank, N.A. v. Nat'l Union Ins. Co. of
Pittsburgh, PA, 768 A.2d 865, 869 (Pa. Super. 2001) (“A legal
conclusion is a statement of a legal duty without stating the facts
from which the duty arises. A statement of the existence of a
fact could be a legal conclusion if the fact stated is one of the
ultimate issues in the proceeding.”). We must, therefore,
examine the factual averments to determine whether they
support the conclusion.
Joyce v. Erie Ins. Exchange, 74 A.3d 157, 168 (Pa. Super. 2013).
Commonwealth v. Hawkins, 294 Pa. Super. 57, 439 A.2d 748,
751 (1982); and Commonwealth v. Eackles, 286 Pa. Super.
146, 428 A.2d 614, 618 (1981), which both define fraud as
being “a false representation of a material matter made with
knowledge of its falsity and with the intent to deceive.” Id. This
definition does not include the element of detriment. In
Hawkins, the underlying crime was theft by unlawful taking and
because there was no requirement to prove a false
representation to convict on that charge, the fraud extension did
not apply. In Eackles, the underlying crime was receiving
stolen property. Again, there was no requirement to prove a
false representation to prove the crime, so the exception was
irrelevant. However, here, the crime specifically includes making
a false representation. For purposes of this appeal, [the
appellant] admits there was a false statement knowingly made
with the intent to deceive. Therefore the definition of fraud as
relied upon in Hawkins and Eackles has been established.
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Commonwealth v. Riding, 68 A.3d 990, 996-97 (Pa. Super. 2013)
(footnote omitted).
In this Commonwealth the rule is so firmly established that the
Superior Court has said it is irrelevant whether or not [the
insured] intended to be bound by the [policy’s] exclusion for
intentional torts, since it is against the public policy of this
Commonwealth to provide insurance coverage for
intentional acts.
State Farm Mut. Auto. Ins. Co. v. Martin, 660 A.2d 66, 67-68 (Pa. Super.
1995), appeal denied, 678 A.2d 366 (Pa. 1996) (citation and quotation
marks omitted) (emphasis added).
Here, preliminarily, we note that Appellant fails to divide its argument
“into as many parts as there are questions to be argued; and shall have at
the head of each part─in distinctive type or in type distinctively
displayed─the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a);
(see also Appellant’s Brief, at 21-40).9 In general support of its first claim,
Appellant argues that it has coverage under the policy provision for wrongful
acts. (See Appellant’s Brief, at 15, 26).
Notably, Appellant does not dispute that “the Liability Opinion,”
Amara, supra (534 F.Supp.2d 288), found that its (Cigna’s) summary plan
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9
We could find both of Appellant’s claims waived on this basis alone, but we
will review them on the merits in the interest of juridical economy.
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descriptions and summary of material modifications were “affirmatively and
materially misleading.” (Appellant’s Brief, at 29).10
Nevertheless, Appellant maintains that the fraudulent acts exclusion
does not apply. Appellant posits that the policy covers its conduct as a
“Wrongful Act,” defined in the policy to include “‘any actual or alleged . . .
misstatement, misleading statement, act, omission’ [sic] on the part of the
insured.” (Appellant’s Brief, at 26). We disagree.
We begin by observing that “[u]nder Pennsylvania law . . . the court’s
duty is to ascertain the intent of the parties as manifested in the language of
the written instrument. In discharging this duty, the court must view the
policy in its entirety, giving effect to all of its provisions. Cont’l Cas. Co. v.
Pro Machine, 916 A.2d 1111, 1121 (Pa. Super. 2007) (internal quotation
marks and citation omitted) (emphasis added). “Also, the words of the
insurance policy must be construed in their natural, plain, and ordinary
sense. Moreover, an insurance policy, like every other written contract,
must be read in its entirety and the intent of the policy is gathered from
consideration of the entire instrument.” Ins. Co. of Evanston v. Bowers,
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10
Specifically, the court found that “CIGNA sought to negate the risk of
backlash by producing affirmatively and materially misleading notices
regarding Part B. As a result, its § 204(h) notice failed to meet ERISA’s
stringent standards.” Amara v. Cigna Corp., 534 F.Supp.2d 288, 344 (D.
Conn. 2008).
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758 A.2d 213, 216 (Pa. Super. 2000) (internal quotation marks and citation
omitted).
Appellant’s argument, in effect, would have us (and the trial court)
read the wrongful acts provision as negating the fraudulent acts exclusion.
(See Appellant’s Brief, at 25) (“Further, there is no exclusion for deliberately
or intentionally misleading statements, acts, or omissions.”). We disagree.
To the contrary, the plain meaning of the policy is that the fraudulent or
criminal act exclusion operates as an exception to the more general wrongful
acts coverage provision. We read the insurance policy in its entirety, not
piecemeal, “giving effect to all of its provisions.” Pro Machine, supra at
1121.
We further note that both the federal district court, and the Second
Circuit in affirmance, expressly concluded that Appellant’s conduct was
fraudulent. See Amara v. CIGNA Corp., 925 F.Supp.2d at 253 (“CIGNA
engaged in fraud or similarly inequitable conduct.”); see also Amara, WL
7272283 at *13, affirming. In affirming, the Second Circuit concluded,
“Based on our review of the record as a whole, we conclude that the district
court did not err—much less clearly err—in determining that the plaintiffs
established “a basis for [the court] to reform the CIGNA Pension Plan due to
CIGNA’s fraud paired with Plaintiffs’ unilateral mistake.” Id. at *12-13
(emphasis added).
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In addition to an unequivocal finding of fraud in the Amara litigation,
we observe that Appellant’s conduct, including affirmative efforts at
concealment and intentionally misleading representations that the benefits
under the previous plan would not be disturbed, would clearly qualify as
fraudulent under Pennsylvania law. See Commonwealth v. Riding, 68
A.3d 990, 996-97 (Pa. Super. 2013) (“a false representation of a material
matter made with knowledge of its falsity and with the intent to deceive.”)
(citing Commonwealth v. Hawkins, 439 A.2d 748, 751 (Pa. Super. 1982);
and Commonwealth v. Eackles, 428 A.2d 614, 618 (Pa. Super. 1981).
We also reject Appellant’s suggestion that the Amara trial court’s
finding of fraud on remand was mere dictum. (Appellant’s Brief, at 39).
“Black’s Law Dictionary defines obiter dictum as [a] judicial comment
made during the course of delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential
(though it may be considered persuasive). Black’s Law Dictionary 1100 (7th
ed. 1999).” C.B. v. J.B., 65 A.3d 946, 959 (Pa. Super. 2013), appeal
denied, 70 A.3d 808 (Pa. 2013) (internal quotation marks omitted).
Here, the Amara trial court’s determination of fraud was integral, if
not critical, to its finding of the appropriateness of the remedy, as well as to
the Second Circuit’s reasoning in affirmance. Appellant’s first claim does not
merit relief.
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In its second question, Appellant posits that the trial court erred or
abused its discretion because the federal court’s finding of fraud was not a
final judgment. (See Appellant’s Brief, at 4). We disagree.
In addition to Appellant’s argument that the finding of fraud by Judge
Arterton was mere dictum, which we categorically reject, it appears to argue
further that because the federal courts occasionally referred to fraud in
conjunction with “other inequitable conduct,” in part by reference to a
learned treatise, that “the court did not reach a final judgment that Cigna’s
conduct was fraudulent.” (Appellant’s Brief, at 39). We emphatically
disagree.
“[N]o ‘single statement . . . accurately define[s] the equitable
conception of fraud[.]’” Amara v. CIGNA Corp. 2014 WL 7272283, *13
(C.A.2 (Conn.) filed December 23, 2014). Here, we conclude for purposes of
our review that the federal courts were entitled to discuss fraud in the
context of prior authority, and their adoptive use of alternative formulations
does not detract from their unequivocal finding of fraud. Appellant offers no
controlling authority in support of its argument for a legal distinction. (See
Appellant’s Brief, at 30, 39). The claim has no merit.
Finally, on the issue of finality, we note that under Pennsylvania law,
the federal courts’ finding of fraud would clearly constitute a final judgment.
“[W]hat effect a civil appeal has on an otherwise final judgment has been
answered. A judgment is deemed final for purposes of res judicata or
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collateral estoppel unless or until it is reversed on appeal.” Shaffer v.
Smith, 673 A.2d 872, 874-75 (Pa. 1996) (citations omitted).11
Appellant’s second claim is without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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11
Moreover, we reject Appellant’s assertion that coverage of intentional acts
would not be precluded by public policy in Pennsylvania. (See Appellant’s
Brief, at 37). Pennsylvania caselaw is unequivocal that reimbursement from
insurance for intentional acts is against the public policy of the
Commonwealth. See Blackman v. Wright, 716 A.2d 648, 650 (Pa. Super.
1998), appeal withdrawn, 727 A.2d 1115 (Pa. 1998) (“in the context of
contracts for insurance, it is against the public policy of this Commonwealth
to provide insurance coverage for intentional acts”) (quoting State Farm v.
Martin, supra at 68). Appellant attempts to distinguish numerous cases
reflecting this policy, and draws a universal conclusion that “there is no
blanket public policy in Pennsylvania against insurance coverage for
intentional acts.” (Appellant’s Brief, at 37; see also id. at 32-38). We are
unpersuaded. While many of these cases, and cases holding similarly, arose
in the context of deliberate motor vehicle collisions, or assaults, and the like,
our caselaw does not limit the policy preclusion to these types of cases. We
perceive no reason or basis to read an exception into the public policy under
the facts of this case.
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