On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Approved for Publication April 2, 1997.
Before Judges King, Keefe and Conley. The opinion of the Court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion of the Court was delivered by
Defendant Peter Coppola appeals from an order granting summary judgment to plaintiff Merrimack Mutual Fire Insurance Company (Merrimack). The judgment declared that Merrimack was not obligated to defend or indemnify defendant for his acts of abuse against his former wife under a homeowners policy. The issue to be decided is whether defendant's subjective intent with respect to the consequences of his alleged abusive behavior toward his wife is relevant in determining if coverage exists under his homeowner's policy that excludes indemnity for injuries expected or intended.
On May 20, 1992, Joann Coppola (Joann) filed for divorce. The First Count of the Complaint demanded a judgment of divorce on the ground of extreme cruelty, based on emotional and physical abuse throughout the marriage. The last specific allegation of physical threats and emotional abuse were Joann's accounts of incidents in March 1990. The Second Count of the Complaint, incorporated the allegations of the First Count, and demanded judgment of divorce based on defendant's chronic alcoholism.
The Third Count of the Complaint incorporated the allegations of the First Count and demanded compensatory and punitive damages based upon the defendant's intentional physical and emotional abuse of Joann throughout the course of the parties' marriage, from July 17, 1965 to the date upon which the defendant was removed from the marital residence by a Restraining Order, on or about March 20, 1990. More specifically, Joann alleged 29 instances of physical and emotional abuse against herself and her children. She sought compensatory and punitive damages for her emotional and physical injuries. The Fourth Count of the Complaint alleged, in the alternative, that defendant negligently physically and emotionally abused Joann throughout the course of the parties' marriage. She sought compensatory injuries under that count. (The claims asserted against defendant in counts three and four of Joann's complaint will be referred to herein as the Tevis claims. *fn1 )
Defendant made a demand upon Merrimack for coverage of the Tevis claims in Joann's complaint. Merrimack had issued a homeowner's policy to defendant, insuring premises located in Caldwell, New Jersey (not defendant's marital home), having a policy period from July 11, 1989 until July 11, 1990. Merrimack denied coverage, and filed this declaratory judgment action on April 26, 1993 against defendant and Joann.
Defendant filed his answer and counterclaim to Merrimack's complaint. Joann also filed an answer to the complaint. The declaratory judgment matter was consolidated with the divorce proceeding but severed for trial. *fn2
The divorce complaint was tried first, and a Dual Judgment of Divorce was entered as a result of a settlement arrived at between Joann and defendant during the course of the trial. In Paragraph 16 of the judgment, defendant was required to transfer the sum of $20,000 from his IRA to Joanne's IRA. In paragraph 20, the judgment provided that Joann's Tevis claim was deemed satisfied by defendant's assumption and satisfaction of the mortgage on the marital home and the $20,000 roll-over from defendant's IRA into Joanne's IRA. Defendant claims in his appellate brief that the total settlement value was $30,000.
Subsequently, Judge Rocco D'Ambrosio granted Merrimack's motion for summary judgment, declaring that Merrimack did not cover defendant for the claims asserted by Joann, and dismissed defendant's counterclaim. This appeal followed. *fn3
A more complete understanding of Joann's Tevis claim is revealed by the record from the divorce action which was submitted to the motion Judge in connection with Merrimack's summary judgment motion. Plaintiff's complaint alleged a litany of physical and emotionally abusive behavior commencing shortly after their wedding in 1965 up to and including March of 1990. For example, in November 1979, defendant verbally abused and physically assaulted Joann twice in one night. The second time defendant hit her, Joann was holding their six-year old daughter, who defendant also hit and injured. Joann filed a report with the police and obtained a restraining order for the defendant to leave the residence. Joann began experiencing panic attacks after that incident.
Pertaining to the policy period at issue in this case (July 11, 1989 to July 11, 1990), Joann claimed that in October and November 1989, defendant's abusive behavior became more severe. According to Joann, defendant had violent temper tantrums, was critical of her and family members, and was constantly attempting to pick fights with her. She feared for her safety.
On December 30, 1989 defendant physically assaulted Joann, grabbing her arm and pulling her to the floor by her hair. As a result, she called the New Jersey Battered Woman's Service, who, in turn, telephoned the police. Joann obtained another restraining order on December 30, 1989 against the defendant requiring him to stay ...