Before Judges King, Carchman and Lefelt.
The opinion of the court was delivered by: Carchman, J.A
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Cape May County.
This insurance coverage appeal requires us to address the scope of our decision in Merrimack Mutual Fire Insurance Co. v. Coppola, 299 N.J. Super. 219 (App. Div. 1997), and its applicability where a defendant suggests that his objectively assaultive conduct was not intended to cause injury but was intended to protect a plaintiff from potential harm. We conclude that a genuine issue of material fact exists which precludes a determination, as a matter of law, that defendant Thomas Beeby is not entitled to coverage under his homeowner's policy with plaintiff Cumberland Mutual Fire Insurance Co. (Cumberland). We hold that where a factual inquiry is necessary to determine coverage, that issue should be resolved in a plenary proceeding prior to resolution of the underlying tort action. We remand this matter to the Law Division for a plenary hearing to resolve the factual dispute and determine whether such coverage is excluded under the terms of the policy.
The issue we have identified arises in the following factual and procedural context. Nancy Styer (Styer) and defendant were involved in a long-standing relationship. They lived together since 1993 and parented a child. Defendant is a detective with the Lower Township Police Department.
On January 28, 1994, Styer, defendant and a friend, Danette Hickman (Hickman), went out socially for "happy hour" at a bar in Wildwood. After a few hours they proceeded to a bar in North Cape May, the Red Bull, arriving there at about 10 p.m. At about 11 p.m. Styer and defendant had a verbal disagreement over Styer's smoking. Styer then left the Red Bull without indicating where she was going. When Styer did not return, defendant became concerned and, with Hickman, went to look for her. Defendant later estimated that Styer had consumed between ten and eleven beers and one or two shots of "Red Devil." Defendant acknowledged that he drank eight or nine beers during the course of the evening but denied feeling the effects of the alcohol.
Defendant and Hickman first looked for Styer in the Red Bull parking lot. They proceeded to canvass the area and finally drove to the home of their mutual friends, Joe and Margaret Vitelli, thinking she may have gone there. When they arrived at the Vitelli's, Margaret Vitelli (Margaret) informed defendant that Styer was at the Dunkin' Donuts on Town Bank Road and Bayshore Road. Margaret wanted to pick up Styer. Defendant insisted that he pick her up.
Defendant and Hickman then drove to the Dunkin' Donuts where they saw Styer standing near a phone booth. As defendant walked to Styer, he told her to get into the car; she refused and started walking toward the street. Defendant claims that when Styer attempted to cross Town Bank Road and Bayshore Road, he reached out to grab her: "I wound up grabbing her hair, and I thought I grabbed part of the back of her coat. . . I thought I only initially grabbed [her hair] till I was able to pick her up."
As defendant grabbed Styer and tried to pick her up and put her in the car, she struggled to get free. As she did, she struck her knee causing her injury. Defendant asserts that he did not intend to harm her, but because of her "condition," he was concerned about her crossing a roadway. He simply wanted them to go home.
After defendant put Styer in the passenger seat of the car, Styer left the car and started to run through the Dunkin' Donuts parking lot with Hickman. The two ran to the back of a parking lot where they jumped over a four-foot fence. Defendant saw Margaret pull into the parking lot, and he proceeded to go home. Defendant claims that when he left the area, he did not know that Styer had suffered any injury. Defendant and Styer appeared in Middle Township Municipal Court on the Wednesday following the incident. Although the record is unclear as to the nature of the charge and whether a domestic violence complaint was filed, the matter was ultimately dismissed without an adjudication on the merits.
On January 16, 1996, Styer filed a two-count complaint in the Law Division against defendant for personal injuries she sustained as a result of the incident that occurred on January 28, 1994 (the tort action). In the first count, she alleged assault, battery, false arrest and false imprisonment; in the second count, she alleged that defendant's negligence caused her injuries.
When the claim was filed against defendant, he maintained a homeowner's insurance policy with Cumberland. The ...