Leonard, Seidman and Bischoff. The opinion of the court was delivered by Leonard, P.J.A.D.
Plaintiffs filed a complaint alleging that defendant Blair (defendant) committed an unprovoked assault and battery upon infant plaintiff Mark Raday by punching him in the face in the hallway of the school wherein both were enrolled as students. (Defendant board of education is not involved in this appeal).
Appellant Glens Falls Insurance Company (Glens Falls), with which company defendant's parents had a homeowners
insurance policy, upon receipt of the above complaint and accompanying summons, refused coverage and also refused to defend said suit. Thereupon defendant, through his own counsel, filed an answer to the complaint denying the allegations thereof and asserting the separate defenses of self-defense and provocation.
At or about the same time defendant filed a third-party complaint against Glens Falls seeking damages for all sums that might be adjudged against him in favor of plaintiff Mark Raday in the tort action, plus legal fees expended by him in defense of it. Glens Falls, in its answer, admitted the existence of the policy but disclaimed coverage and refused to defend the original action.
Thereafter, the tort action was tried with a six-man jury and a unanimous verdict of no cause of action was returned. Subsequently, however, the judge, "in the interest of justice," ordered a new trial. Approximately seven weeks thereafter defendant moved for a "declaratory judgment" requiring Glens Falls to pay his legal fees, costs and expenses "to date and in the future" incurred in the original action, and further authorizing him to have his private counsel continue to represent him therein. Following oral argument and a hearing to settle the form thereof, the order was entered May 15, 1974 granting defendant the relief he sought and fixing counsel fees and disbursements to date in the amounts of $3,675 and $4,065 respectively. Glens Falls, with leave first granted, appeals therefrom.
At the outset it is to be noted that the controverted order applies only to Glens Falls' obligation to pay defendant the legal fees and costs incurred by him in defending the main action in the past and in the future. We are not now specifically concerned with the ultimate issue of coverage or the obligation of Glens Falls to pay a judgment against defendant if one is entered. As a matter of fact, the trial judge refused to rule on that issue, declaring that it was not included in the motion before him.
Nevertheless, Glens Falls contends that it is obligated to defend an action only when the complaint filed therein alleges a basis of liability within the covenant to pay. It asserts that because the claim presented in the instant case is one for assault and battery -- an intentional tort -- which is excluded from coverage by the terms of the policy, the company was not obligated to provide a defense for defendant in the main action nor responsible for fees expended by him in providing his own defense.
Defendant first maintains that the exclusionary clause of the policy which denies coverage for "bodily injury * * * which is either expected or intended from the standpoint of the insured" is vague at best and therefore the policy should be construed to sustain coverage in accordance with his expectations as a purchaser thereof. He also maintains that in no event does that clause bar coverage in the main action. He argues that since, in that action, he has raised the defense of self-defense, he could demonstrate that in physically defending himself he did not commit a willful or intentional injury but that any such injury was only the unintended result of his conduct in defense of himself or the result of his negligence. See Lyons v. Hartford Ins. Group, 125 N.J. Super. 239, 245-247 (App. Div. 1973), certif. den. 64 N.J. 322 (1974).
As previously noted, the only issue involved in defendant's motion for a declaratory judgment was Glens Falls' obligation to defend him in the main action. Generally, a carrier is obligated to defend this type of an action whenever the complaint alleges a basis of liability within the covenant to pay. However, when that duty to pay cannot be resolved by the trial of the third party's action against the insured, the duty to defend may depend upon the actual facts and not upon the allegations in the complaint. Burd v. Sussex Ins. Co., 56 N.J. 383, 388 ...