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Cumberland Mutual Fire Insurance Co. v. Murphy5/23/2005
Argued February 15, 2005
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ, and JUSTICES LONG and ZAZZALI concur in the judgment of the Court. JUSTICE WALLACE filed a separate dissenting opinion, in which JUSTICES LaVECCHIA and RIVERA-SOTO join. JUSTICE RIVERA-SOTO also filed a separate dissenting opinion, in which JUSTICE LaVECCHIA joins. JUSTICE ALBIN did not participate.
JUSTICE LONG, concurring.
This case involves the actions of a fourteen-year-old boy who foolishly shot some BBs to "ding" passing vehicles. As a result, the driver of one of the vehicles sustained an injury. The boy's parents sought coverage under their homeowner's policy. Although all parties agree that there is no direct evidence that the boy subjectively intended or expected to cause an injury, the insurer declined coverage on the basis of two exclusionary clauses in its policy. We are here called upon to determine the meaning of those clauses.
I.
The facts established during discovery are as follows. On January 20, 2001, fourteen-year-old Timothy Murphy, III, and his thirteen-year-old friend Eric Kovalchek, visited the home of fifteen-year-old Eric Elder. At around 11:00 p.m., the boys decided to shoot BBs at passing cars. They retrieved a BB gun from the Elders' shed, and climbed onto a ten-foot high wooden platform in a tree at the edge of the Elders' property, twenty-five yards from the road. The night was dark and moonless, and it was sleeting. Visibility was poor.
According to Murphy, he and Elder took turns firing. By listening to the sound of the BBs ricocheting off the vehicles, Murphy estimated that he hit four or five of them. Kovalchek did not remember Elder hitting any cars, though he did recall Murphy hitting two or three, including a Jeep. By all accounts, Kovalchek did not shoot the BB gun.
Murphy admitted to shooting intentionally at the cars, but he denied that he intended to hurt anyone and claimed that he did not understand at the time that someone could get hurt. When asked why he thought that shooting BBs at moving cars would not cause injury, Murphy responded, "Because I never thought that it would hit a person, I was just seeing like to get it to hit the car. I never thought it would go inside of them." Murphy also conceded that, at the time, he knew that what he was doing was "wrong," "illegal," and might subject him to "juvenile court." Despite understanding those risks, Murphy thought at the time that he was just "hav fun with friends." He acknowledged that the boys talked "a little bit" during their time on the platform, but he could not remember what they had discussed.
For the most part, Elder and Kovalchek confirmed Murphy's version. Elder testified that he never thought that they could hurt anyone and that "it seemed harmless at the time." Elder also stated that nothing was said on the platform that indicated that any of the boys expected or feared that someone would be hurt. Kovalchek said that he told the others, "I don't feel like this is the right thing, I don't think we should be doing this," but, when asked whether Elder or Murphy said or did anything that gave him the idea that they wanted to harm someone, Kovalchek answered, "No, not at all." Further, Kovalchek indicated that no one expressed concern that the BBs could penetrate one of the cars.
At some point that night, Gina Santiago drove her soft-top Jeep along the road in front of the Elders' property. Her husband, Ferdinand, was a passenger in the vehicle. A BB, shot from the platform, struck the Jeep, pierced its plastic window, and entere
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