On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-1919-98.
Before Judges Wefing, Cuff*fn1 and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs appeal from a summary judgment dismissing their declaratory judgment action in which they sought homeowner's insurance coverage for injuries caused by plaintiff, Thomas R. Bittner, Jr. ("Bittner"), son of plaintiffs Jana Bittner and Thomas Bittner, in a domestic violence incident. The victim sought monetary damages against Bittner in a proceeding brought in the Family Part under the Prevention of Domestic Violence Act of 1991 ("PDVA" or "Act"). N.J.S.A. 2C:25-17 to -35. Bittner contends that his conduct was reckless, not intentional, and therefore he should not be excluded from coverage. We disagree and affirm.
The underlying incident occurred at 12:30 a.m. on May 21, 1996, in the parking lot of a bar. Bittner and his then- girlfriend, Heather Ewan ["Ewan"], were engaged in an argument. According to Ewan, Bittner punched her in the face. She signed a complaint under the PDVA alleging that Bittner committed an act of assault, endangering her life, health or well-being, by "striking [Ewan] in face with his fist and keys causing extensive facial and dental damage." The complaint further alleged that there had been a previous act of domestic violence wherein Bittner "struck [Ewan] on head with phone." A temporary restraining order was immediately issued.
On the date of the incident, the police issued a criminal complaint charging Bittner with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), for causing serious bodily injury "by punching the victim in the face while holding a set of keys in that hand." Bittner immediately signed a cross-complaint against Ewan, charging her with simple assault for attempting to cause bodily injury to him by punching him in the face, in violation of N.J.S.A. 2C:12-1a(1). On August 27, 1996, Bittner was indicted for second- degree aggravated assault. On December 1, 1997, pursuant to a plea agreement, he pled guilty to a downgraded charge of simple assault, N.J.S.A. 2C:12-1a(1). When entering his plea, Bittner admitted to only reckless conduct,*fn2 stating that when he put his hand up to fend off Ewan, his keys flew out of his hand and hit her in the face. The plea was entered with a reservation that it could not be used against Bittner in a civil proceeding. R. 3:9-2.
On January 30, 1998, Bittner was sentenced, in accordance with the recommendation in the plea agreement, to one year of probation, a $250 fine, mandatory penalties, twenty-five hours of community service work and restitution to Ewan for unreimbursed medical and dental expenses of $2,034. A special condition of the probation was that Bittner abide by the existing restraining order under the PDVA. At sentencing, his cross-complaint against Ewan for simple assault was dismissed, in accordance with the plea agreement.
In the ongoing domestic violence action in the Family Part, Ewan sought various forms of relief, including compensatory and punitive damages, as allowed by N.J.S.A. 2C:25-29b(4). That provision of the Act allows for monetary compensation to victims "for losses suffered as a direct result of the act of domestic violence," including out-of-pocket losses for injuries sustained, compensation for pain and suffering, and, where appropriate, punitive damages.
After the plea was entered, Bittner's attorney notified defendant, which had issued a homeowner's policy to Bittner's parents, of his intention to seek coverage under that policy for the injuries that Bittner caused to Ewan. He contended defendant was obligated to provide a defense to Bittner in the ongoing domestic violence proceeding and indemnify Bittner for his counsel fees and any sums for which he might be held liable. Defendant denied coverage under the "intentional act" exclusion in the policy.*fn3 Plaintiffs then filed this declaratory judgment action on May 21, 1998. Judge Sypek granted defendant's summary judgment motion on November 5, 1999 and denied plaintiffs' motion for reconsideration on January 21, 2000.
In the domestic violence proceeding, Ewan steadfastly adhered to her contention that Bittner's conduct was intentional, testifying that he "punched me in the face with a set of keys." She said that the force of the blow knocked her to the ground, after which she observed Bittner holding the keys in his clenched hand. She further testified that after she got up, she began to strike him. Bittner testified to his version, which was consistent with the factual basis in support of his plea.*fn4 Ewan has never filed a civil action against Bittner. She has never alleged any alternative basis for liability, such as negligent or reckless infliction of bodily injury.
An insurer's duty to defend "is determined by comparing the allegations in the complaint with the language of the policy. When the two correspond, the duty to defend arises, irrespective of the claim's actual merits." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 173 (1992). Defendant's policy requires it to defend and indemnify "[i]f a claim is made or a suit is brought against an insured" for damages because of "bodily injury" caused by an "occurrence" covered by the policy. "Occurrence" is defined as an accident. The policy excludes coverage for conduct causing bodily injury "which is expected or intended by the 'insured.'" Since no claim has ever been made nor any suit been brought for anything other than Bittner's alleged intentional conduct, defendant's duty to defend was not triggered.
Bittner argues that the allegation in the domestic violence complaint alternatively encompasses an allegation of reckless conduct. The PDVA incorporates by reference various criminal statutes, the violation of which may constitute an act of domestic violence if committed against a person protected by the Act. N.J.S.A. 2C:25-19a; Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The criminal statute alleged to have been violated in this domestic violence complaint is assault, N.J.S.A. 2C:12-1, which can, by definition, be committed by purposeful, knowing or reckless conduct.*fn5 Bittner argues that this circumstance, coupled with his contention that his conduct was only reckless, avoids the intentional act exclusion and brings the claim against him within the scope of coverage. This argument is flawed for two reasons.
Although it is possible for an assault to be committed by reckless conduct, Ewan's claim is predicated solely on an allegation of intentional conduct. That Bittner, pursuant to a plea agreement, pled guilty in the collateral criminal proceeding by admitting only to reckless conduct does not alter the gravamen of Ewan's domestic violence complaint against him; nor does the fact that he asserts mere ...