NJ Sup.Ct. Finds Exclusion "arising out of" Ambiguous.

In Flomerfelt v. Cardiello, the plaintiff attended a party hosted by the defendant where she became unresponsive and was ultimately treated for kidney and liver failure. A hospital toxicology report identified alcohol, marijuana, opiates and cocaine in her system. No expert determined the levels of each substance in plaintiff’s system however, the hospital found the injuries “probably secondary to drug overdose.” The defendant’s expert suggested her injuries may have resulted from prior drug abuse.

The defendant sought coverage under his parents homeowners policy which was denied, with the carrier relying on an exclusion in the policy for claims “arising out of” the use, transfer or possession of controlled dangerous substances. The trial court found coverage, the Appellate Division reversed and the New Jersey Supreme Court reversed and remanded finding the insurer’s use of the phrase ” arising out of” with no further qualification, made the exclusion ambiguous, requiring an interpretation consistent with the insured’s reasonable expectation. In remanding, the Court noted that the coverage issue could not be resolved because the record failed to answer questions about the sequence of events leading to the plaintiff’s injuries and the cause or causes of her injuries.

http://www.judiciary.state.nj.us/opinions/supreme/A409FlomerfeltvCardiello.pdf

Please contact Robert Ball with any questions regarding this post at rball@wcmlaw.com.