MOREN v. HIGH POINT INSURANCE COMPANY

NOT FOR PUBLICATION

PER CURIAM.

Joshua M. Moren died on June 21, 2008, as the result of injuries suffered in a head-on collision with a motor vehicle operated by Laura Lippie, who was intoxicated. Plaintiff Grace Moren, his mother and the administratrix of his estate, filed a wrongful death action against Laura Lippie and her husband, Paul Lippie.1 In addition, she filed a declaratory judgment action against High Point Insurance Company (High Point), the Lippies' homeowners insurance carrier. Plaintiff appeals from an order that granted summary judgment to High Point. We affirm.

The wrongful death complaint alleged that Laura was driving her Chevrolet Trailblazer in a careless and negligent manner northbound on Route 47 in Middle Township when she swerved into the ongoing traffic in the southbound lane and struck Joshua Moren's motorcycle in a head-on collision, causing him to suffer fatal injuries. In a separate count against Paul, the complaint alleged

When he arrived at the accident scene, Paul told a detective that Laura was "a recovering alcoholic" and had relapsed about a month and a half earlier. He left the accident scene to go to the hospital where Laura had been taken and later provided a formal statement.

In his formal statement, Paul told the detective that the family planned to start a week-long vacation in Wildwood on the day of the accident. He and his son left earlier and Laura was to drive later. Paul said that before he left for the shore, he asked his wife if she was "ok to drive" because over the past couple of days she had been kind of wheezy. Paul told the detective that he was not sure if her wheezing was due to her medication or something else. After speaking with Laura, he felt she was fine. He stated further that Laura had been in a rehabilitation center and attended AA meetings, but had relapsed and started drinking vodka, which she believed was easy to disguise.

In his deposition, Paul testified that he questioned Laura on the evening before the accident about the "wheeziness" he had observed in her in the last couple of days. That evening, he looked in some of the different spots that she had hidden alcohol in the past and did not find anything. He stated that she told him "it was the medication she was on." Paul stated that it was usual for Laura to be irritable and argumentative when she was drinking. Because she was not irritable and argumentative at the time, he did not associate her wheeziness with drinking alcohol. On the morning of the accident he checked her old hiding spots again, looking for water bottles with alcohol in them. When asked if he had any "clue or suspicion that it might be alcohol versus medication[,]" Paul answered, "[n]o clue." After the accident, however, he suspected she had been drinking.

The detective executed a search warrant of the Lippie vehicle. Among the items in the vehicle were several bottles of medication2 and a bottle of vodka.

Laura was diagnosed with cirrhosis of the liver in 2001 and died before the declaratory judgment action was filed in July 2010.

The Lippies had an automobile insurance policy at the time of the accident with New Jersey Manufacturers Insurance Company (NJM). In addition to this plaintiff's wrongful death action, a personal injury action was filed against the Lippies by Denis and Colleen Beaulieu. A second personal injury action was filed by Orlando and Omayra Vega on behalf of themselves and their minor children.3 All three actions were consolidated. NJM deposited its policy limits of $300,000 with the court and is providing Paul with a defense in that matter.

In July 2010, plaintiff filed the instant declaratory judgment action.

The declaratory judgment complaint alleges, inter alia:

Plaintiff's declaratory judgment action and a similar action filed by the Beaulieu plaintiffs were consolidated with the wrongful death and personal injury actions.

High Point issued a homeowners policy to Laura and Paul Lippie which includes the following Exclusion:

High Point filed a motion for summary judgment in the consolidated declaratory judgment actions, which was granted. Plaintiff filed this appeal, in which she argues that High Point has a duty to defend and indemnify Paul and that the High Point policy fails to exclude damages having a nexus to alcoholism. After reviewing these arguments in light of the record and applicable legal principles, we are satisfied that they lack sufficient merit to warrant discussion in a written opinion beyond the following comments. R. 2:11-3(e)(1)(E).

In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J.Super. 219, 228 (App. Div. 2009). We view the evidence in the light most favorable to the non-moving party and determine whether the moving party was entitled to summary judgment as a matter of law. R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

To determine whether High Point had a duty to defend, we compare "the allegations set forth in the complainant's pleading and the language of the insurance policy." Flomerfelt v. Cardiello, 202 N.J. 432, 444 (2010). The allegation against Paul that he was negligent in entrusting Laura with driving his automobile falls squarely within the exclusion relied upon by High Point.

Exclusionary clauses are presumed valid if they are "specific, plain, clear, prominent and not contrary to public policy." Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997). The insurer bears the burden of showing the exclusion applies and, "if there is more than one possible interpretation of the language, courts apply the meaning that supports coverage rather than the one that limits it[.]" Flomerfelt, supra, 202 N.J. at 442. If, however, "the words used in an exclusionary clause are clear and unambiguous, a court should not engage in a strained construction to support the imposition of liability." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 528 (2012) (internal quotation marks omitted).

Despite the clear language of the exclusion and its application to the allegation against Paul, plaintiff argues that High Point has a duty to defend because a concurrent cause of the injury was alleged and High Point's policy does not contain an exclusion for injuries having a substantial nexus to alcoholism or caused by a spouse's negligence in dealing with a spouse suffering from alcoholism. In support of this argument, plaintiff relies upon Flomerfelt and Salem Grp. v. Oliver, 248 N.J.Super. 265 (App. Div. 1991), aff'd, 128 N.J. 1 (1992). However, these cases are distinguishable because they involved allegations that the insured had served alcohol or drugs to a visibly intoxicated person and that the consumption of such alcohol or drugs was a cause of injury.

Even viewing the evidence most favorably to plaintiff, there is no evidence here that Paul served any alcohol to Laura. Although he had concerns about her "wheeziness," those concerns were allayed after he checked her usual hiding spots for alcohol, asked her about her condition, and also because she was not argumentative, a characteristic he associated with her drinking.

Plaintiff seeks to remove the complaint from the exclusion by asking us to explore the facts relating to Laura's alcoholism and Paul's alleged negligence in letting her drive under the circumstances. However, in making the comparison between the claim alleged and the policy provisions to determine whether there is a duty to defend, "it is the nature of the claim asserted, rather than the specific details of the incident or the litigation's possible outcome, that governs the insurer's obligation." Flomerfelt, supra, 202 N.J. at 444. We are satisfied that the allegation that Paul was negligent in entrusting his automobile to Laura falls within the "plain and ordinary meaning" of the exclusion clause.

Affirmed.