COLIN YURCISIN v. RYAN FLEMING (L-0691-17 and L-2053-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3750-20
COLIN YURCISIN,
Plaintiff,
v.
RYAN FLEMING, JUSTIN
MAGARIELLO, MARK
MAGARIELLO, and CAROL
MAGARIELLO,
Defendants.
___________________________
NEW JERSEY
MANUFACTURERS
INSURANCE COMPANY,
Plaintiff-Appellant,
v.
RYAN FLEMING, COLIN
YURCISIN, JUSTIN
MAGARIELLO, MARK
MAGARIELLO, and CAROL
MAGARIELLO,
Defendants-Respondents.
___________________________
Argued February 9, 2022 – Decided March 21, 2022
Before Judges Hoffman, Whipple, and Geiger.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Mercer County,
Docket Nos. L-0691-17 and L-2053-17.
Stephen J. Foley, Jr., argued the cause for appellant
New Jersey Manufacturers Insurance Company
(Campbell, Foley, Delano & Adams, LLC, attorneys;
Stephen J. Foley, Jr., on the briefs).
Scott A. Krasny argued the cause for respondent Ryan
Fleming (Furlong and Krasny, attorneys; Scott A.
Krasny, on the brief).
Kenneth W. Elwood argued the cause for respondent
Colin Yurcisin (Blume, Forte, Fried, Zerres &
Molinari, PC, attorneys; Kenneth W. Elwood, on the
brief).
PER CURIAM
These consolidated cases arise from the physical assault of a guest by
another guest at a party, and the resulting dispute between New Jersey
Manufacturers Insurance Company (NJM) and its insured regarding whether
NJM owed a duty to defend and indemnify the guest who committed the
assault.
We derive the following facts from the motion record. Ryan Fleming
and Colin Yurcisin were guests at a party hosted by Justin Magariello at the
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home of his parents, Mark and Carol Magariello. Yurcisin alleged that
Fleming, who was intoxicated, punched him in the face multiple times, causing
serious injuries.
Fleming was charged with second-degree aggravated assault. As part of
his entry into pretrial intervention (PTI), Fleming pled guilty pursuant to Rule
3:28-5(b)(2). At the plea hearing, Fleming testified that Yurcisin was sitting at
a chair at the party, "minding his own business" when Fleming struck Yurcisin
approximately six times in the face. Fleming further acknowledged at the plea
hearing that his conduct was a "purposeful and knowing act." Fleming's
admissions at the plea hearing were made under a civil reservation that the
plea would not be evidential in any civil proceeding pursuant to Rule 3:9-2.
On April 3, 2017, Yurcisin filed a personal injury action against Fleming
and the Magariellos (Docket No. L-691-17). In his eight-count complaint,
Yurcisin alleged that Fleming is liable for "negligently and/or intentionally
caus[ing] injury to [Yurcisin] for his improper, unauthorized and/or illegal
conduct" (count four), and "maliciously and/or negligently assault[ing]"
Yurcisin (count five). The remaining aspects of count four and the other six
counts are directed against the Magariellos. 1
1
The complaint alleges the Magariellos: (a) negligently "created or caused to
be created certain dangerous and hazardous conditions that led to [Yurcisin's]
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Fleming was insured under his parents' NJM homeowner's policy (the
policy). Fleming requested that NJM provide him with a defense and
indemnify him against Yurcisin's claims. NJM denied coverage and the
obligation to provide a defense for Fleming's acts, claiming the incident
between Fleming and Yurcisin was not a covered occurrence as defined in the
policy.
NJM contended that the incident between Fleming and Yurcisin "would
not be classified as an accident." NJM asserted that because Yurcisin was
claiming bodily injury and emotional damages which was "expected or
intended" by an insured, coverage for the incident was excluded. NJM
considered Fleming's actions "entirely intentional." NJM also noted that
injuries" by "serving, providing or otherwise making available, alcohol to
[Fleming], while he was 'visibly intoxicated'" (count one); (b) were liab le as a
social host for not providing a reasonable and safe premises to Yurcisin (count
two); (c) were liable as social hosts for negligently, recklessly and unlawfully
serving alcoholic beverages to Fleming, and knew or should have known he
was under the influence or impaired by the consumption of alcoholic
beverages (count three); (d) were vicariously liable for the negligent and/or
intentional acts of Fleming by serving alcohol to Fleming, (count four); (e)
failed to warn or alert Yurcisin to the dangers of being present (count six); (f)
created and/or maintained a nuisance that resulted in Yurcisin's injuries (count
seven); and (g) are liable for negligently hiring, training, overseeing, and
supervising the persons who served alcoholic beverages to Fleming, which
facilitated and/or permitted Fleming's wrongful conduct (count eight). The
Magariellos are covered by a different homeowner's policy. Mark and Carol
Magariello were granted summary judgment dismissing the claims against
them. The Magariellos have not participated in this appeal.
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Fleming never provided a statement explaining what happened at the party,
and for those reasons, could not defend him in the personal injury action.
The policy provides coverage and indemnifies, holds harmless, and
defends claims "brought against an insured for damages because of bodily
injury or property damage caused by an occurrence to which this coverage
applies[.]" "Occurrence" is defined as "an accident, including continuous or
repeated exposure to substantially the same general harmful conditions, which
results, during the policy period in . . . bodily injury; or . . . property damage."
"Bodily injury" is defined as "bodily harm, sickness or disease,
including required care, loss of services and death that results." The policy
also provides coverage for "the necessary medical expenses that are incurred
or medically ascertained within three years from the date of an accident
causing bodily injury" by a person "off the insured location, if the bodily
injury . . . [i]s caused by the activities of an insured."
For occurrences that are covered, the policy affords a defense to insureds
at NJM's expense by counsel of NJM's choice, "even if the suit is groundless,
false or fraudulent."
The policy excludes coverage and the duty to defend for the intentional
acts of insureds, stating that coverage for bodily injury, property damage, and
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medical expenses, and the duty to provide a defense to such claims, does not
apply to:
Expected Or Intended Injury
Bodily injury or property damage, with respect to all
insureds which is expected or intended by an insured
even if the bodily injury or property damage:
(a) Is of a different kind, quality, or degree than
initially expected or intended; or
(b) Is sustained by a different person, entity, real or
personal property than initially expected or intended.
Yurcisin and Fleming do not dispute that the policy does not provide coverage
or a duty to defend for Fleming's intentional acts.
NJM filed a complaint for a declaratory judgment that it had no
obligation to provide a defense or liability coverage to Fleming for Yurcisin's
claims (Docket No. L-2053-17). Fleming was defended in the personal injury
and declaratory judgment actions by privately retained counsel, Scott A.
Krasny. Fleming and the Magariellos filed answers contesting the declaratory
judgment action and Fleming filed a counterclaim against NJM.
The trial court consolidated the actions and granted summary judgment
to Carol and Mark Magariello. Those rulings are not part of this appeal.
Yurcisin moved for summary judgment in the declaratory judgment
action to compel NJM to defend and indemnify Fleming against Yurcisin's
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claims. In turn, NJM cross-moved for summary judgment for a ruling that it
had no obligation to cover Fleming against Yurcisin's claims, and thus, had no
duty to defend, indemnify, and hold Fleming harmless from those claims.
Fleming then moved for summary judgment to compel NJM to defend and
indemnify him against Yurcisin's claims.
The court issued three orders on August 2, 2019. It denied all three
motions for summary judgment but still required NJM to defend Fleming
against Yurcisin's claims. The court found there was a genuine issue of
material fact whether Yurcisin's injuries were caused by Fleming's negligent,
reckless, or intentional acts. The court noted Fleming's testimony at the plea
hearing was admissible for impeachment purposes despite the civil reservation.
The court also directed that the declaratory judgment action be tried before the
personal injury action.
Counsel appointed by NJM to defend Fleming moved to compel Krasny
to withdraw from the personal injury action. Fleming cross-moved to compel
NJM to provide him with counsel in both the personal injury and declaratory
judgment actions, and to pay Krasny's counsel fees and costs. Yurcisin filed a
similar motion against NJM.
Despite denying summary judgment, the court found NJM had a duty to
defend Fleming and was responsible for Fleming's attorney's fees in the
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consolidated actions. The court ordered NJM to assign counsel to defend
Fleming and to pay the attorney's fees and costs he had incurred in the
consolidated actions. Krasny submitted a certification of fees and costs and a
substitution of attorney in the personal injury action.
NJM moved for reconsideration of the order compelling it to pay
Fleming's attorney's fees and to provide counsel for him in the consolidated
actions. NJM raised a two-fold argument. First, NJM claimed that ordering it
to pay its own counsel and its adversary's counsel in the same case created a
conflict of interest. Second, NJM claimed it was error to require it to pay
attorney's fees before Fleming prevailed in the declaratory judgment action.
The court denied reconsideration and awarded $12,240 in attorney's fees and
costs to Krasny in the consolidated actions through April 9, 2020.
By leave granted, NJM appeals from the orders: (1) directing it to
provide counsel to Fleming in the consolidated actions and to pay the
attorney's fees and costs incurred for the services rendered by Krasny in both
actions; and (2) denying its motion for reconsideration and directing it to pay
attorney's fees and costs to Krasny. This appeal followed.
NJM raises the following points for our consideration:
POINT I
NJM'S HOMEOWNERS POLICY DOES NOT
PROVIDE COVERAGE TO DEFENDANT
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FLEMING FOR DEFENSE OF THE
DECLARATORY [JUDGMENT] ACTION FILED
AGAINST HIM.
POINT II
THE TRIAL COURT ORDERS COMPELLING NJM
TO PROVIDE DEFENDANT FLEMING WITH A
DEFENSE TO THE ACTION FOR DECLARATORY
JUDGMENT VIOLATES THE LONGSTANDING
AND WELL-ESTABLISHED "AMERICAN RULE"
REGARDING THE PAYMENT OF ATTORNEY[']S
FEES.
POINT III
ENFORCEMENT OF THE TRIAL COURT'S
INTERLOCUTORY ORDERS REQUIRING NJM TO
NOW PAY DEFENDANT FLEMING'S COUNSEL
FEES WILL DEPRIVE NJM OF THE ABILITY TO
APPEAL FROM THOSE ORDERS AND RECOUP
ANY PAYMENTS MADE FOLLOWING A
VERDICT IN ITS FAVOR IN THE DECLARATORY
ACTION. REVERSAL OF THE ORDERS
REQUIRING PAYMENT OF FEES IN ADVANCE
OF THE ENTRY OF FINAL JUDGMENT,
THEREFORE, IS REQUIRED AT THIS TIME. (Not
Raised Below).
"An insurance policy is a contract that will be enforced as written when
its terms are clear in order that the expectations of the parties will be fulfilled."
Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010) (citing Kampf v. Franklin
Life Ins. Co., 33 N.J. 36, 43 (1960); Scarfi v. Aetna Cas. Sur. Co., 233 N.J.
Super. 509, 514 (App. Div. 1989)). "In considering the meaning of an
insurance policy, we interpret the language 'according to its plain and ordinary
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meaning.'" Ibid. (quoting Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165,
175 (1992)). "If the plain language of the policy is unambiguous, we will 'not
engage in a strained construction to support the imposition of liability or write
a better policy for the insured than the one purchased.'" Templo Fuente de
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 200 (2016)
(quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231,
238 (2008)). Where the terms are ambiguous, they are construed against the
insurer and in favor of the insured. Flomerfelt, 202 N.J. at 441.
Insurance policies commonly include exclusions from coverage.
"Exclusionary clauses are presumptively valid[,]" ibid., and will be enforced if
the clauses are "'specific, plain, clear, prominent, and not contrary to public
policy,' notwithstanding that exclusions generally 'must be narrowly
construed,' and the insurer bears the burden to demonstrate they apply."
Abboud v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 450 N.J. Super. 400,
407 (App. Div. 2017) (quoting Flomerfelt, 202 N.J. at 441-42).
The parties do not dispute that the policy does not afford coverage for
intentional conduct, such as an intentional assault. However, Yurcisin's
complaint asserts causes of action against Fleming based upon both intentional
and negligent conduct. The complaint alleges that Fleming is liable for
"negligently and/or intentionally caus[ing] injury to [Yurcisin] for his
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improper, unauthorized and/or illegal conduct" (count four), and "maliciously
and/or negligently assault[ing]" Yurcisin (count five). Despite his testimony
during factual basis for his guilty plea, Fleming now contends that he "blacked
out" during the incident and has no memory of the event.
Our Supreme Court has addressed the complications that may arise when
an insured is sued on alternate theories of liability, such as negligent and
intentional torts. The Court recognized that "if there are multiple theories of
liability, only some of which would be covered, the interests of the insured and
insurer may not coincide." Flomerfelt, 202 N.J. at 446 (citing Burd v. Sussex
Mut. Ins. Co., 56 N.J. 383, 389-90 (1970)). Because the Yurcisin's complaint
alleges Fleming is liable for negligent and intentional conduct, we address the
principles governing an insurer's duties to defend and indemnify its insureds.
Those duties are neither identical nor coextensive, and
therefore, must be analyzed separately. Although a
definitive conclusion that a policy by its terms affords
no coverage, and therefore that there is no duty of
indemnification, also means that there is no duty to
defend, coverage questions may not have clear
answers in advance of discovery or trial. As a result,
courts are often required to evaluate whether the
insurer owes its insured a duty to defend in advance of
a conclusive decision about coverage. In those
circumstances, the separate principles that govern the
duty to defend must be considered and applied.
An insurer's duty to defend an action brought
against its insured depends upon a comparison
between the allegations set forth in the complainant's
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pleading and the language of the insurance policy. In
making that comparison, it is the nature of the claim
asserted, rather than the specific details of the incident
or the litigation's possible outcome, that govern the
insurer's obligation.
In evaluating the complaint for this purpose,
doubts are resolved in favor of the insured and,
therefore, in favor of reading claims that are
ambiguously pleaded, but potentially covered, in a
manner that obligates the insurer to provide a defense.
Similarly, if a complaint includes multiple or
alternative causes of action, the duty to defend will
attach as long as any of them would be a covered
claim and it continues until all of the covered claims
have been resolved.
[Flomerfelt, 202 N.J. at 444 (citations omitted).]
Stated another way, the duty to defend arises when a comparison of the
allegations in the complaint with the language of the policy
reveals that, if the allegations of the complaint are
sustained, the insurer will be required to pay any
resulting judgment. Any doubts are resolved in favor
of the insured. Liability of the insured to the plaintiff
is not the criterion; it is the allegation in the complaint
of a cause of action which, if sustained, will impose a
liability covered by the policy. When multiple
alternative causes of action are stated, the duty will
continue until every covered claim is eliminated.
[S.T. Hudson Eng'rs, Inc. v. Pa. Nat. Mut. Cas. Co.,
388 N.J. Super. 592, 606 (App. Div. 2006) (citations
and internal quotation marks omitted).]
Our Supreme Court has explained that when there are covered and
uncovered claims alleged in a complaint, the insurer has two options: (1) it can
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"assume the defense if the insured agreed, with a reservation of its right to
dispute coverage"; or (2) it can "refuse to defend and dispute its obligations
later, so as to 'translate its obligation into one to reimburse the insured if it is
later adjudged that the claim was one within the policy covenant to pay. '"
Flomerfelt, 202 N.J. at 446 (quoting Burd, 56 N.J. at 390).
In Burd,"the Court recognized that it might be appropriate to decide the
coverage question, and thus the insurer's duty to defend, before trial of the
underlying claim." Flomerfelt, 202 N.J. at 446. The Court reasoned:
Whenever the carrier's position so diverges from
the insured's that the carrier cannot defend the action
with complete fidelity to the insured, there must be a
proceeding in which the carrier and the insured,
represented by counsel of their own choice, may fight
out their differences. That action may, as here, follow
the trial of the third party's suit against the insured.
Or, unless for special reasons it would be unfair to do
so, a declaratory judgment proceeding may be brought
in advance of that trial by the carrier or the insured, to
the end that the third-party suit may be defended by
the party ultimately liable.
[Burd, 56 N.J. at 391.]
Accordingly, in instances where "the underlying coverage question
cannot be decided from the face of the complaint, the insurer is obligated to
provide a defense until all potentially covered claims are resolved, but the
resolution may be through adjudication of the complaint or in a separate"
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declaratory judgment action "between insured and insurer either before or after
that decision is reached." Flomerfelt, 202 N.J. at 447.
Here, given the nature of the underlying facts and allegations, it is not
surprising that NJM's position diverges from Fleming's position. Pursuant to
the trial court's order, NJM provided Fleming with defense counsel. In turn,
Krasny provided a substitution of counsel in the personal injury action.
NJM contends Yurcisin's injuries were caused by Fleming's intentional
assault, not negligence. If NJM prevails on that issue, NJM does not owe a
duty to defend or indemnify Fleming from Yurcisin's claims since the
occurrence would be excluded from coverage.
The trial court directed that the declaratory judgment action shall be
tried before the personal injury action. We discern no abuse of discretion by
so ruling. Under these circumstances, the better course is for the declaratory
judgment action to be decided on the merits before the personal injury actio n.
Whether coverage exists for the occurrence is a legal issue to be decided by the
court, not a jury. See Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super.
363, 375 (App. Div. 2008) ("The interpretation of contracts and their
construction are matters of law for the court subject to de novo review.").
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We affirm the ruling that the declaratory judgment action should be tried
and decided before the trial of the personal injury action. We remand for that
purpose and stay the personal injury action until that decision is rendered.
We part company with the trial court's order directing NJM to provide
counsel to Fleming in the consolidated actions. An insurer is obligated to
provide the insured with a defense against all actions covered by the insuranc e
policy. Hartford Accident & Indemn. Co. v. Aetna Life & Cas. Ins. Co., 98
N.J. 18, 22 (1984). An insurer's duty to defend arises only "when the
complaint states a claim constituting a risk insured against." Voorhees v.
Preferred Mut. Ins. Co., 128 N.J. 165, 173 (1992) (quoting Danek v. Hommer,
28 N.J. Super. 68, 77 (App. Div. 1953), aff'd o.b., 15 N.J. 573 (1954)).
Here, the declaratory judgment action has not yet been tried and the
issue of whether the incident was a covered occurrence remains undecided.
Moreover, the language of the policy does not obligate NJM to provide
Fleming with a defense to the declaratory judgment action. Because the
declaratory judgment will be tried first, we vacate the order requiring NJM to
provide defense counsel in the personal injury action. NJM is only obligated
to provide defense counsel in the personal injury action if Fleming prevails in
the declaratory judgment action. We express no position on the outcome of
the declaratory judgment action.
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We reverse the orders directing NJM to provide counsel to Fleming in
the declaratory judgment action. We hold that NJM owes no such duty.
We also part company with the trial court's award of counsel fees and
costs to Krasny privately retained counsel in the consolidated actions. "In an
action upon a liability or indemnity policy of insurance," attorney's fees may
be awarded "in favor of a successful claimant." R. 4:42-9(a)(6). "The term
successful claimant is broadly defined as a party that 'succeed[s] on any
significant issue in litigation which achieves some benefit the parties sought in
bringing suit.'" Occhifinto v. Olivo Constr. Co., 221 N.J. 443, 450-51 (2015)
(alteration in original) (quoting R.M. v. Supreme Ct. of N.J., 190 N.J. 1, 10
(2007)). Here, Fleming is not a successful claimant until he prevails on the
coverage issue as the result of expending counsel fees. Id. at 451 (quoting
Transamerica Ins. Co. v. Nat'l Roofing, Inc., 108 N.J. 59, 63 (1987)).
Accordingly, when an insured prevails in a declaratory judgment action
by a finding of coverage for the incident, an award of counsel fees to the
insured is appropriate. Sears Mortg. Corp. v. Rose, 134 N.J. 326, 356 (1993)
(citing R. 4:42-9(a)(6)); accord Aquino v. State Farm Ins. Cos., 349 N.J.
Super. 402, 410 (App. Div. 2002). Conversely, counsel fees will not be
awarded to an insured in prosecuting or defending a declaratory judgment
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action where it is later determined that no coverage exists. W9/PHC Real Est.
LP v. Farm Family Cas. Ins. Co., 407 N.J. Super 177, 203 (App. Div. 2009).
Because the coverage issue remains undecided, Fleming is not yet "a
successful claimant" entitled to a counsel fee award under Rule 4:42-9(a)(6).
The counsel fee awards in both actions were premature. We vacate those
awards without prejudice to Fleming renewing his claim for counsel fees and
costs if he prevails in the declaratory judgment action.
In light of our ruling, we do not separately address the denial of NJM's
motion for reconsideration.
We affirm the denial of Fleming's motion for sanctions against NJM.
The application for sanctions lacks sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, vacated in part, and remanded for
further proceedings consistent with this opinion. We do not retain jurisdiction.
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