NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2376-23
JESSE DE CHACON and LAURA GREER,
Plaintiffs-Appellants,
v.
CAESARS ENTERTAINMENT CORP., CAESARS ATLANTIC CITY and BALLY'S ATLANTIC CITY,
Defendants,
and
MICHAEL NIEVES,
Defendant-Appellant,
UNITED SERVICES AUTOMOBILE ASSOCIATION.
Defendant-Respondent. ____________________________
Argued October 28, 2025 – Decided December 16, 2025 Before Judges Mayer, Gummer, and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0953-19.
John E. Keefe, Jr., argued the cause for appellants (Keefe Law Firm, attorneys; John E. Keefe, Jr. and Stephen T. Sullivan, Jr., of counsel and on the briefs).
Walter F. Kawalec, III, argued the cause for respondent (Marshall Dennehey, PC, attorneys; Barbara J. Davis, David D. Blake and Walter F. Kawalec, III, on the brief).
PER CURIAM
Plaintiffs Jesse De Chacon and Laura Greer appeal from orders granting
the motions of defendant United Services Automobile Association (USAA) to
dismiss plaintiffs' claims and defendant Michael Nieves's cross-claim against it
and denying plaintiffs' motions for reconsideration and to intervene in Nieves's
cross-claim against USAA. Plaintiffs fault the trial court for, among other
things, applying New York law to interpret the USAA homeowners insurance
policy at issue. Perceiving no error or abuse of discretion in that determination
or the orders under appeal, we affirm.
I.
On March 7, 2019, plaintiffs filed a complaint in the Law Division,
seeking damages from Caesars Entertainment Corp., Caesars Atlantic City, and
A-2376-23 2 Bally's Atlantic City (the casino defendants), and Nieves for injuries De Chacon
had sustained during a physical altercation between De Chacon and Nieves.
They alleged Nieves had "negligently and carelessly made physical contact"
with De Chacon while they were at Bally's Casino in Atlantic City on September
16, 2018. In their first amended complaint, plaintiffs included counts in which
they alleged Nieves's actions constituted assault and battery.
On August 22, 2022, plaintiffs filed a second amended complaint in which
they named USAA as an additional defendant. Plaintiffs alleged Nieves was an
insured under a homeowners insurance policy issued by USAA to Nieves's
parents. They asserted a direct claim against USAA, seeking a judgment
declaring USAA had breached its contractual duty to defend and indemnify
Nieves and was "liable for the entire amount of any judgment or settlement"
plaintiffs obtained against Nieves. In his October 7, 2022 answer to plaintiffs'
second amended complaint, Nieves included a cross-claim against USAA,
seeking a judgment declaring USAA was required to defend and indemnify him
and awarding punitive damages for USAA's alleged "bad faith denial of
coverage."
USAA answered Nieves's cross-claim, asserting he was not entitled to a
defense or indemnity under the insurance policy at issue. It moved to dismiss
A-2376-23 3 the second amended complaint, contending plaintiffs had no standing to bring a
claim directly against it, any claims against USAA were premature because no
judgment had been entered against any party, and plaintiffs' claims against
USAA were moot because Nieves had filed a cross-claim for coverage,
indemnification, and defense. After hearing argument, the trial court granted
USAA's motion and dismissed the second amended complaint against USAA
with prejudice in a November 9, 2022 order and memorandum of decision. The
court found plaintiffs did not have standing to bring a direct claim against USAA
and that the issue of whether Nieves was insured by USAA would "be handled
within the cross-claim."
On November 30, 2022, plaintiffs moved for leave to intervene in Nieves's
cross-claim against USAA. After hearing argument, the court denied the motion
in a December 16, 2022 order, holding plaintiffs had failed to meet the
requirements for intervention as of right under Rule 4:33-1 and permissive
intervention under Rule 4:33-2. The court found plaintiffs' interests were
protected given Nieves's cross-claim and plaintiffs' ability to participate in
discovery and motion practice.
USAA moved for summary judgment on Nieves's cross-claim. In its
motion papers, USAA admitted it had issued a homeowners insurance policy to
A-2376-23 4 Nieves's parents and had denied him coverage under the terms of the policy. In
support of its motion, USAA submitted copies of portions of the policy, a
transcript of a plea hearing that took place on November 19, 2020, in State v.
Nieves, No. ATL-18-003818 (Law Div.), a criminal case based on the
September 16, 2018 incident; a judgment of conviction entered in that case on
May 4, 2021; and portions of a transcript of a deposition taken of Nieves.
Under the "Personal Liability" provision of the "Liability Coverages"
section of the policy, USAA agreed to pay "damages" up to its "limit of liability"
and provide a defense "[i]f a claim is made or a suit is brought against any
'insured' for 'damages' because of 'bodily injury' or 'property damage' caused by
an 'occurrence' to which this coverage applies . . . ." The policy defined
"[o]ccurrence" as "an accident, including continuous or repeated exposure to
substantially the same general harmful conditions, which results, during the
policy period, in: a. 'Bodily injury'; or b. 'Property damage.'" The policy
excluded from personal-liability coverage "bodily injury" that:
is reasonably expected or intended by any "insured" even if the resulting "bodily injury" or "property damage":
(1) is of a different kind, quality or degree than initially expected or intended; or
A-2376-23 5 (2) is sustained by a different person, entity, real or personal property, than initially expected or intended.
That exclusion contained the following exception: "However, this exclusion
does not apply to 'bodily injury' resulting from the use of lawful reasonable force
by any 'insured' to protect persons or property."
At the November 19, 2020 plea hearing in his criminal case, Nieves
pleaded guilty to a charge of third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(7), in connection with the September 16, 2018 incident. Plaintiffs have
acknowledged Nieves pleaded guilty "freely and voluntarily." N.J.S.A. 2C:12-
1(b)(7) provides that a person is guilty of aggravated assault if the person
"[a]ttempts to cause significant bodily injury to another or causes significant
bodily injury purposely or knowingly or, under circumstances manifesting
extreme indifference to the value of human life recklessly causes such
significant bodily injury." At the hearing, Nieves acknowledged he had
"attempt[ed] to cause or . . . purposely, knowingly, or recklessly" caused De
Chacon "significant bodily injury." He admitted he had struck De Chacon in the
head, causing him to fall and hit his head again, which resulted in significant
bodily injury. He acknowledged he had not been "under the influence" when he
hit De Chacon and had understood what he was doing at the time.
A-2376-23 6 As memorialized in the June 4, 2021 judgment of conviction, the Criminal
Part judge subsequently accepted Nieves's guilty plea and imposed a five-year
probationary term, conditioned on a 364-day jail term, plus fines and restitution.
The judge included the following in the "Statement of Reasons" section of the
judgment of conviction: "This conviction stems from a dispute at a casino bar.
[Nieves] appears to have violently attacked another bar patron. [Nieves] claims
that the victim was engaged in offensive behavior related to [Nieves's] female
companion."
During his deposition in this case, Nieves described the September 16,
2018 incident. According to Nieves, De Chacon and two men with him
approached Nieves, his girlfriend, and two women with them. Nieves described
the men as "being a little extra aggressive as far as . . . interacting with them.
. . . [I]t wasn't flirting, it was a little more than that. They were trying to get
them upstairs." When Nieves asked the men to leave them alone, De Chacon
walked away and the other two men stayed there but "were less aggressive" and
"were friendlier and . . . seemed to get the hint." Nieves did not express any
concerns about De Chacon to casino security or other employees. Nieves
testified about what had happened just before he hit De Chacon.
Q. What is your next interaction with Mr. De Chacon?
A-2376-23 7 A. So he comes back at this point in time and, again, the same thing. We asked him to leave. He's . . . harassing the girls. We asked him to leave.
He then proceeds to grab my girlfriend . . . below the waist. From there she mushes him. [1]
I then get involved. I asked him to leave again, and then he does not. We have words. And then from there he . . . tells me, "What are you going to do?" And then . . . that's when I struck Mr. De Chacon at that point in time.
....
Q. And when Mr. De Chacon said, "What are you going to do," did you say anything to Mr. De Chacon or you just struck him right away?
A. I struck him.
Q. At any point in time did Mr. De Chacon physically touch you before you struck Mr. De Chacon?
A. No, ma'am.
Q. Did any of these two gentlemen that appeared to be with Mr. De Chacon physically touch you before you struck Mr. De Chacon?
1 In his answers to interrogatories, which were submitted by Nieves in opposition to USAA's motion, Nieves stated his girlfriend had "pushed [De Chacon] away." A-2376-23 8 Q. And would you agree that when Mr. De Chacon said, "What are you going to do," you and the girls could have walked away, correct?
A. I can't agree to that.
Q. And why not?
A. I feel like I had to make a split decision in order to protect myself and [my girlfriend]. So I felt like at that point in time that was the only one course of action I had.
Q. And after Mr. De Chacon initially touched [your girlfriend] and [she] said she was with you, did Mr. De Chacon touch [her] again?
A. No.
Plaintiffs opposed the summary-judgment motion, arguing genuine issues
of material fact existed as to Nieves's subjective intent and USAA was obligated
to defend and indemnify Nieves because the policy's intentional-act exclusion
did not apply and, if it did, the lawful-reasonable-force exception to that
exclusion applied. Plaintiffs submitted with their opposition copies of
additional portions of the policy and deposition transcript. The additional
transcript pages included Nieves's testimony that he had "felt threatened for
[himself] and [his] girlfriend at the time" and had viewed himself as "protecting
[his] girlfriend and [him]self . . . and that was [his] only course of action." The
additional transcript pages also included Nieves's response when asked if he
A-2376-23 9 disputed he had committed an aggravated assault: "My intentions were never to
hurt him in that sense except it was a freak, freak situation."
In a reply brief, USAA admitted Nieves was an insured under the policy
and contended New York law applied to the interpretation of the policy because
Nieves, a New York resident, was "seeking coverage under a New York
homeowner's insurance policy that insured his parent[s' New York] home"
where he resided at the time of the incident. USAA asserted the sentencing
judge in the criminal case had rejected any suggestion Nieves "acted in the
defense of others" on the day of the incident based on its findings regarding
mitigating factors. Despite Nieves's urging, the sentencing judge found "no
basis to credit" mitigating factors two through five. See N.J.S.A. 2C:44-1(b)(2)
("The defendant did not contemplate that the defendant's conduct would cause
or threaten serious harm"); N.J.S.A. 2C:44-1(b)(3) ("The defendant acted under
a strong provocation"); N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds
tending to excuse or justify the defendant's conduct, though failing to establish
a defense"); and N.J.S.A. 2C:44-1(b)(5) ("The victim of the defendant's conduct
induced or facilitated its commission"). USAA argued the incident was not an
"occurrence" under the terms of the policy and, thus, was not covered under the
policy; the "intentional act exclusion" in the policy barred coverage; and Nieves
A-2376-23 10 was "collaterally estopped from now asserting that he did not intend bodily
injury" given his guilty plea to the charge of aggravated assault and was
"estopped from asserting that he acted in the defense of others under New York
insurance contract law."
After hearing argument, the court entered a January 25, 2024 order and
memorandum of decision granting USAA's motion and dismissing with
prejudice Nieves's cross-claim against it. The court found USAA did not have
a duty to defend Nieves from any claims arising out of the September 16, 2018
incident; was not required to indemnify Nieves for any damages assessed against
him as a result of the incident; and De Chacon was not entitled under the policy
to reimbursement of damages for any judgment obtained. In the memorandum
of decision, the court conducted a conflict-of-law analysis and found a
substantive difference existed between New York and New Jersey law on
whether an insured who had pleaded guilty to a crime was estopped from
asserting the incident at issue was an accident. Applying choice-of-law rules,
the court found New York law governed its interpretation of the policy because
"the State of New York has the most meaningful connections with the
transaction and the parties at issue" in that Nieves and his parents resided in
A-2376-23 11 New York; the homeowners policy was issued in New York; and the insured
property was located in New York.
Applying New York law, the court found the September 16, 2018 incident
did not constitute an occurrence under the policy because Nieves's actions could
not be considered accidental or unintentional. The court found:
Mr. Nieves[ had] acted intentionally when he drew back his arm, clenched his fingers into a fist, and swung his fist at Mr. De Chacon's head. Moreover, because Mr. Nieves[] acted intentionally, his actions do not fit the definition of "accident" which inherently requires an "unintentional" act.
Furthermore, the injuries Mr. De Chacon suffered were both "expected and intended" results of being punched in the head. Specifically, in punching someone in the head, it is to be expected that the injured person would sustain some type of injury, at minimum, to the face or, at worst, to the brain. In this case, the worst-case scenario occurred with Mr. De Chacon sustaining injuries to the brain. We recognize that Mr. Nieves[] did not intend to cause such severe injuries[;] however, that does not negate that a brain injury can be reasonably expected after being punched in the head.
The court found persuasive USAA's argument that "no reasonable jury could
conclude that USAA ha[d] an obligation to provide insurance coverage for the
claims asserted against [] Nieves." The court held "no reasonable jury could
conclude that the physical altercation between the parties [fell] under the
definition of 'occurrence' because Mr. Nieves['s] actions during the fight were
A-2376-23 12 intentional" or that De Chacon's "injuries were not 'expected or intended'
because it is reasonably expected that an individual would receive a brain injury
after being punched in the head."
In a March 7, 2024 order, the court denied plaintiffs' subsequent
reconsideration motion. Plaintiffs resolved their claims against the casino
defendants and Nieves, who previously had assigned to De Chacon his claims
and rights for coverage under the USAA policy in connection with this case. On
March 28, 2024, the court entered an order of dismissal. This appeal followed.
II.
On appeal, plaintiffs assert they were permitted to bring a direct claim
against USAA for declaratory relief and, thus, the court erred in dismissing their
claim against USAA in the November 9, 2022 order. Plaintiffs argue the court
erred in denying their motion to intervene in Nieves's cross-claim against USAA
in the December 16, 2022 order, contending they had satisfied the standard for
intervention under Rule 4:33-1. Plaintiffs also argue the trial court erred in
granting USAA summary judgment on Nieves's cross-claim against it in the
January 25, 2024 order and in denying their motion for reconsideration of that
order in the March 7, 2024 order, asserting the court mistakenly applied New
York law and failed to consider the lawful-reasonable-force exception to the
A-2376-23 13 intended-act exclusion in the policy. Plaintiffs ask this court to reverse all orders
"under appeal and enter a [d]eclaratory [j]udgment that: 1) New Jersey [law]
applies to all issues; and 2) [p]laintiffs have established sufficient evidence to
trigger the exception to the exclusion in USAA's [p]olicy as a matter of law, and
Nieves was entitled to coverage under the [p]olicy." Unpersuaded by plaintiffs'
arguments, we affirm.
A.
We first address plaintiffs' appeal of the January 25, 2024 order granting
USAA summary-judgment on Nieves's cross-claim.
We review a grant of summary judgment de novo, using the same standard
that governed the trial court's decision. Statewide Ins. Fund v. Star Ins. Co., 253
N.J. 119, 124-25 (2023). Under that standard, we "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Id. at
125 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
"We accord no special deference to the trial court's legal conclusions."
Birmingham v. Travelers N.J. Ins. Co., 475 N.J. Super. 246, 255 (App. Div.
2023).
A-2376-23 14 Because "[c]hoice-of-law questions involve legal determinations," we
review a trial court's resolution of those questions de novo. Cont'l Ins. Co. v.
Honeywell Int'l, Inc., 234 N.J. 23, 46 (2018). "[W]hen a civil action is brought
in New Jersey, we use New Jersey choice-of-law rules to decide whether this
state's or another state's legal framework should be applied." Ibid.
Under New Jersey's choice-of-law rules, "the first inquiry 'is whether the
laws of the states with interests in the litigation are in conflict.'" In re Accutane
Litig., 235 N.J. 229, 254 (2018) (quoting McCarrell v. Hoffman-La Roche, Inc.,
227 N.J. 569, 584 (2017)). "A conflict of law arises when the application of one
or another state's law may alter the outcome of the case . . . or when the law of
one interested state is 'offensive or repugnant' to the public policy of the other
. . . ." Ibid. (quoting Honeywell, 234 N.J. at 46). If no conflict exists, "'there is
no choice of law issue to be resolved,' . . . and the forum state applies its own
law . . . ." Ibid. (quoting P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 143
(2008)). If a conflict exists, the court must then determine which state's
substantive law applies. Id. at 257.
In State Farm Mutual Auto Insurance Co. v. Estate of Simmons, 84 N.J.
28 (1980), our Supreme Court "rejected the mechanical and inflexible lex loci
contractus rule in resolving conflict-of-law issues in liability-insurance
A-2376-23 15 contracts." Gilbert Spruance Co. v. Pa. Mfrs.' Ass'n Ins. Co. of N. Am., 134 N.J.
96, 102 (1993). Instead, the Court "adopted a more flexible approach that
focuses on the state that has the most significant connections with the parties
and the transaction." Ibid. As the Court explained in Simmons, that approach:
calls for recognition of the rule that the law of the place of the contract ordinarily governs the choice of law because this rule will generally comport with the reasonable expectations of the parties concerning the principal situs of the insured risk during the term of the policy and will furnish needed certainty and consistency in the selection of the applicable law. . . . At the same time, this choice-of-law rule should not be given controlling or dispositive effect. It should not be applied without a full comparison of the significant relationship of each state with the parties and the transaction. That assessment should encompass an evaluation of important state contacts as well as a consideration of the state polices affected by, and governmental interest in, the outcome of the controversy.
[84 N.J. at 37.]
See also Century Indem. Co. v. Mine Safety Appliances Co., 398 N.J. Super.
422, 436 (App. Div. 2008) (acknowledging the choice-of-law principles
articulated by the Court in Simmons apply to the interpretation of liability
insurance contracts).
Under that standard, a court considers which state "has the most
meaningful connections with the transaction and the parties in issue," evaluating
A-2376-23 16 "several relevant contacts, such as the domicile of the parties and the places of
contracting and performance." Century, 398 N.J. Super. at 436 (quoting
Simmons, 84 N.J. at 34) (internal quotation marks omitted). A court also
considers the following factors:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
[Ibid. (quoting Restatement (Second) of Conflict of L. (Restatement) § 6 (Am. Law Inst. 1971))].
Applying that law to this case, we perceive no error in the court's conflict-
of-law analysis and application of New York law in interpreting the policy. The
issue in Nieves's cross-claim against USAA and plaintiffs' attempted direct
claim against USAA was whether Nieves was entitled to coverage for the
September 16, 2018 incident under the USAA policy. A conflict exists between
the states' substantive applicable law. Under New York law, an insured who
pleaded guilty to assault is not entitled to insurance coverage for damages
caused by the assault because the issue of his intent to inflict bodily injury on
the other person is no longer in question. See United Servs. Auto. Ass'n v.
A-2376-23 17 Iannuzzi, 28 N.Y.S.3d 878, 878 (N.Y. App. Div. 2016); Home Mut. Ins. Co. v.
Lapi, 596 N.Y.S.2d 885, 887 (N.Y. App. Div. 1993). Under New Jersey law, an
insured who pleaded guilty to assault may still be entitled to insurance coverage
for damages caused by the assault. See State Farm Fire & Cas. Co. v. Connolly,
371 N.J. Super. 119, 125 (App. Div. 2004). Because the application of one or
the other state's law potentially could alter the outcome of the case, a conflict
exists. In re Accutane Litig., 235 N.J. at 254.
Plaintiffs acknowledge that difference between New York and New Jersey
law but fault the court for "perform[ing] one analysis for all issues" and contend
the court should have found a conflict only on that particular point of law and
should have applied New Jersey law. We reject plaintiffs' overly-narrow
approach to the choice-of-law issue before the court. We recognize that "in
multi-party actions, choice-of-law principles may call for the application of a
different state's laws from party-to-party or claim-to-claim." Fairfax Fin.
Holdings Ltd. v. S.A.C. Cap. Mgmt., LLC, 450 N.J. Super. 1, 34 (App. Div.
2017); see also Erny v. Est. of Merola, 171 N.J. 86, 94 (2002) ("Ordinarily,
choice-of-law determinations are made on an issue-by-issue basis . . . ."). But
the claim here -- the issue here -- is whether Nieves is entitled to coverage for
the September 16, 2018 incident under the USAA policy. And an analysis of
A-2376-23 18 that issue demonstrates a conflict exists and New York law should be applied in
deciding it.
The insureds named in this homeowners policy were Nieves's parents.
They resided in New York. The property insured under the policy is their home,
which is located in New York. Nieves was insured under the policy because he
lived in that home. Thus, he was a New York resident. New York has a clear
interest in protecting the expectations of insured policyholders who are citizens
of New York regarding homeowners insurance policies covering property and
people located in New York. New York also has an interest in procuring
predictable and uniform results for insurance-coverage claims made under those
policies.
That the punch was thrown in New Jersey doesn't diminish those interests.
If where the punch was thrown were the determinative factor in what law
applies, the policy at issue potentially could be interpreted based on the laws of
all fifty states. That conclusion is directly contrary to the concern for "certainty,
predictability and uniformity of result." Century, 398 N.J. Super. at 436
(quoting Restatement § 6(f)). Given New York's significant and dominant
interests, New York law applies.
A-2376-23 19 Under New York law, Nieves is not entitled to coverage for the September
16, 2018 incident under the USAA policy. His guilty plea is a determinative
factor under New York law. See Iannuzzi, 28 N.Y.S.3d at 878; Lapi, 596
N.Y.S.2d at 887. But even in cases that did not involve a guilty plea, New York
courts have consistently held the insureds were not entitled to coverage because
the physical altercations at issue did not constitute an occurrence under policy
terms identical or similar to those present in this case.
For example, in Tangney v. Burke, 800 N.Y.S.2d 44, 45 (N.Y. App. Div.
2005), the court affirmed an order granting summary judgment in favor of the
third-party defendant insurer. The court held the insurer did not have a duty to
indemnify or defend an insured for bodily injury sustained by another person as
a result of a physical altercation with the insured because the intentional conduct
could not be classified as an "occurrence" for which the homeowners policy
would provide coverage. Ibid. The court found the injuries allegedly sustained
"were inherent in the activity [the insured had] engaged in" and the insure d's
actions could not "be construed as an accident within the definition of
'occurrence' for which [the] policy affords coverage." Ibid. The court concluded
that even "[w]ere there coverage under the definition of 'occurrence' in [the]
policy, then an exclusion would apply for bodily injury 'which is expected or
A-2376-23 20 intended by any insured,' including [the insured in that case]." Ibid.; see also
Nationwide Mut. Fire Ins. Co. v. Nelson, 220 N.Y.S.3d 157, 158-59 (N.Y. App.
Div. 2024) (in case involving a claim for coverage for injuries sustained by
someone when the insured "punched and kicked" him and a policy that defined
"'occurrence'" as "'bodily injury . . . resulting from an accident[,]'" court affirmed
order granting the insurer summary judgment because "the incident at issue was
not an 'occurrence' giving rise to policy coverage" but "was an intentional act,
which did not constitute an 'occurrence' within the meaning of the policy") ;
Rinaldi v. Wakmal, 123 N.Y.S.3d 156, 158-59 (N.Y. App. Div. 2020) (court
affirms order granting summary judgment to insurer, holding the insured's action
in striking someone twice in the face during a physical alteration "was an
intentional act, which did not constitute an 'occurrence' within the meaning of
[the homeowners] policy"); Ward v. Sec. Mut. Ins. Co., 597 N.Y.S.2d 227, 227-
28 (N.Y. App. Div. 1993) (in case involving a claim for coverage for injuries
sustained by someone "as the result of a beating" the insured had inflicted on
her, court affirmed order granting the defendant insurer summary judgment
because the policy provided coverage for "an occurrence, defined in the policy
as 'an accident . . .'" and the beating was "an intentional act and as such cannot
constitute an accident").
A-2376-23 21 Applying New York law to the policy language and facts in this case, no
reasonable factfinder could conclude the September 16, 2018 incident was an
occurrence under the policy. Thus, Nieves was not entitled to coverage under
the USAA policy.
Plaintiffs focus on what they call the "defense of others" exception to the
intentional-act exclusion. That focus is misplaced. Because we conclude the
September 16, 2018 incident was not an "occurrence" giving rise to coverage
under the policy, we do not address the policy provisions regarding what is
excluded from coverage. But even if that exception to the exclusion were at
issue, no reasonable factfinder, based on the evidence in the record including
Nieves's testimony, could conclude De Chacon's injuries resulted from "the use
of lawful reasonable force by any 'insured' to protect persons or property ."
Finally, in the interest of completeness, we analyze the case under New
Jersey law and conclude that summary judgment was appropriate even under
New Jersey law. When deciding whether circumstances constitute an
"occurrence" under a policy defining that term as an "accident," New Jersey
courts determine "the accidental nature of an occurrence . . . by analyzing
whether the alleged wrongdoer intended or expected to cause an injury . If not,
then the resulting injury is 'accidental,' even if the act that caused the injury was
A-2376-23 22 intentional." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 183 (1992).
"When the actions are particularly reprehensible, the intent to injure can be
presumed from the act without an inquiry into the actor's subjective intent to
injure." Id. at 184. "Absent exceptional circumstances that objectively establish
the insured's intent to injure, we will look to the insured's subjective intent to
determine intent to injure." Id. at 185.
"[O]nce it is established the wrongdoer 'subjectively intends or expects to
cause some sort of injury, that intent will generally preclude coverage.'"
Hammer v. Thomas, 415 N.J. Super. 237, 246 (App. Div. 2010) (quoting SL
Indus., Inc. v. Am. Motorists Ins. Co., 128 N.J. 188, 212 (1992)). "If there is
evidence that the extent of the injuries was improbable, however, then the court
must inquire as to whether the insured subjectively intended or expected to cause
that injury." SL Indus., 128 N.J. at 212.
Because Nieves's actions were not "particularly reprehensible," we look
to his "subjective intent to determine intent to injure." Voorhees, 128 N.J. at
184-85; cf. Atl. Emps. Ins. Co. v. Tots & Toddlers Pre-Sch. Day Care Ctr., 239
N.J. Super. 276, 283 (App. Div. 1990) (rejecting application of a subjective test
of intent in case in which insured allegedly sexually assaulted children). The
evidence in the record, particularly Nieves's testimony, demonstrates Nieves
A-2376-23 23 intended or expected "to cause some sort of injury" when he punched De
Chacon. SL Indus., 128 N.J. at 212. He may not have intended, as he testified,
to hurt De Chacon "in that sense," but he clearly intended or expected to hurt
him when he punched him. No reasonable factfinder could conclude otherwise.
Because the record contains no evidence the extent of De Chacon's injuries was
improbable, our inquiry ends there. Because the September 16, 2018 incident
was not an "occurrence" under the terms of the policy, summary judgment would
have been appropriate even if the trial court had applied New Jersey law.
For all of these reasons, we affirm the January 25, 2024 order granting
USAA's summary-judgment motion. Given our affirmance of that order, we
perceive no abuse of discretion in the court's denial of plaintiffs' reconsideration
motion and, accordingly, affirm the March 7, 2024 order. See Branch v. Cream-
O-Land Dairy, 244 N.J. 567, 582 (2021) (applying abuse-of-discretion standard
when reviewing a trial court's order on reconsideration motion).
B.
We turn briefly to the remaining orders under appeal: the order granting
USAA's motion to dismiss the second amended complaint and the order denying
plaintiffs' motion for leave to intervene in Nieves's cross-claim against USAA.
A-2376-23 24 We do not address the substance of plaintiffs' arguments regarding those
orders because any alleged error has been rendered harmless by our affirmance
of the order granting USAA summary judgment. Lanzo v. Cyprus Amax Min.
Co., 467 N.J. Super. 476, 508 (App. Div. 2021) ("Any error deemed harmless
should be disregarded"). Even if the court had allowed plaintiffs' direct claim
against USAA to proceed or permitted plaintiffs to intervene, plaintiffs
ultimately would not have prevailed. As the trial court found when it granted
the motion to dismiss the second amended complaint, the issue of whether
Nieves was insured by USAA for the September 16, 2018 incident was "handled
Moreover, plaintiffs participated in discovery and motion practice in the
case and had an opportunity to present their position regarding the insurance-
coverage issue before the court, which the court fully considered. See N.J. Dep't
of Env't Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 295 (App. Div. 2018)
(finding "any error in denying intervention . . . was not prejudicial and did not
bring about an unjust result" because the court permitted the parties that sought
intervention "to assert their claims as if they had intervened, and [it] considered
fully the arguments they raised . . . ."). We perceive no prejudice or unjust result
in the dismissal or intervention order.
A-2376-23 25 Because any alleged error was harmless, we affirm the November 9, 2022
order granting USAA's motion to dismiss the second amended complaint and
the December 16, 2022 order denying plaintiffs' motion for leave to intervene in
Nieves's cross-claim against USAA.
C.
In sum, we affirm the November 9, 2022 order granting USAA's motion
to dismiss the second amended complaint, the December 16, 2022 order denying
plaintiffs' motion for leave to intervene in Nieves's cross-claim against USAA,
the January 25, 2024 order granting USAA's summary-judgment motion, and
the March 7, 2024 order denying plaintiffs' reconsideration motion.
Affirmed.
A-2376-23 26