Carton, Crane and Kole. The opinion of the court was delivered by Kole, J.A.D.
[134 NJSuper Page 541] A complaint was filed in the United States District Court by four individuals, Capelas, Lopez, Israel Santiago and Johnny Santiago, against, among others, Keegan, Keogh and Romaniello, police officers of the City of Newark. To the extent here relevant, the complaint charged violations under color of law of the civil rights of the plaintiffs by these police officers under the Federal Civil Rights Act, 42 U.S.C.A. § 1983 et seq. It claimed that the police officers unlawfully arrested, searched, detained, imprisoned, assaulted and battered, and conspired to, and did, maliciously prosecute Lopez and the Santiagos. It also
charged that Keegan refused and neglected to prevent the commission of these acts although knowing of the conspiracy to commit them. Claims were made for compensatory and punitive damages.*fn1 Apparently Keegan, Keogh and Romaniello answered in the federal court through personal counsel, although at oral argument we gained the impression that the city either had undertaken their defense or had assigned counsel for that purpose.
At the times involved by the federal action defendant Hartford Accident & Indemnity Company (Hartford) had in effect a liability insurance policy designating as "named assureds" the "City of Newark Police Department, City of Newark, Police Director of City of Newark, Mayor of the City of Newark, Arson Squad (17 members) of City of Newark and Judges and Clerks of Newark Municipal Courts." The policy also describes as an "insured" a named insured designated in the declarations as (1) an individual, (2) a partnership or joint venture, including any partner or member but only with respect to his liability as such, and (3) any other "organization," including any executive officer, director or stockholder thereof while acting within the scope of his duties as such.
The coverage provided personal injury liability to the extent of $100,000 each person "aggregate" and $300,000 total "general aggregate." The policy expressly provides that the carrier will pay on behalf of the "insured" all sums which the insured shall become legally obligated to pay as damages because of injuries sustained by any person arising
out of one or more of the following offenses committed in the conduct of the "named insured's business": false arrest, detention or imprisonment or malicious prosecution, and assaults and batteries committed or alleged to have been committed at the time of making or attempting to make an arrest or in resisting an overt attempt to escape by a person under arrest. It excludes from coverage all claims arising as a result of any act on the part of "the assured" after the claimant has been placed in jail or other place of lawful confinement.
The insurance carrier under the policy has the "right and duty to defend any suit against the insured seeking damages on account of such personal injury even if any of the allegations of the suit are groundless, false or fraudulent." In addition to assaults or batteries occurring while a person is in lawful confinement, the policy excludes coverage for personal injuries arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge and consent of an insured or arising out of riot, civil commotion or mob action or any act or omission in connection with the prevention or suppression of the same. A $5,000 deductible with respect to each claim to be paid by the insured is provided and under no circumstances is the carrier required to pay in excess of the $300,000 "general aggregate."
The premium paid for the insurance coverage by plaintiff city is not insubstantial. It is about $216,000 for a three-year period.
The city instituted this action seeking a declaration of coverage to the individual policemen defendants in the federal civil rights action and requiring the insurer to provide them with a defense. The trial judge, on motion for summary judgment by plaintiff, ordered Hartford to defend the police officers for "any offenses alleged in the complaint" in the federal court action which are covered by the policy and "enumerated therein."
Hartford appeals the judgment against it on a number of grounds. We discuss them, but not necessarily in the order presented.
We agree with the conclusion of the trial judge that the individual policemen are named insureds and ...