On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-3502-01.
Before Judges Ciancia, Alley and R. B. Coleman.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2003
Defendant Teague Hibbard, who sued in the underlying civil action to recover compensatory and punitive damages for bodily injuries sustained as a result of an assault, is appealing from an order granting summary judgment to plaintiff State Farm Fire & Casualty Company (State Farm) in this declaratory judgment action brought by State Farm for a determination that it has no duty to defend or to indemnify defendant Vincent Connolly under the terms of a homeowner's insurance policy issued to Connolly's parents.*fn1 We reverse and remand for further proceedings.
The policy in question extends liability insurance coverage to an insured for bodily injuries caused by an"occurrence." It defines an"occurrence" as"an accident... which results in bodily injury... during the policy period." The policy excludes from coverage bodily injuries which are"either expected or intended by an insured" and those which result from the"willful and malicious act of an insured." The motion judge concluded that the injuries sustained by Hibbard were expected and intended by the insured, Connolly and, therefore, the policy exclusion applied to deny coverage.
Connolly was charged with second degree aggravated assault in connection with an August 21, 1999 attack on Teague Hibbard at Club XS, a night club in Seaside Heights. On July 23, 2001, the State amended that charge to third degree aggravated assault, causing"significant bodily injury under circumstances manifesting extreme indifference to the value of human life in a reckless manner." N.J.S.A. 2C:12-1b(7). Connolly pled guilty to that charge in exchange for which the prosecutor recommended and the judge imposed a probationary sentence. During the plea hearing on July 23, 2001, Connolly admitted that he was in the bathroom at Club XS where there was a fight involving Hibbard. He also provided the following response to his attorney's questioning:
Q: At that time, did you act in a reckless manner, causing -- with extreme indifference to Mr. Hibbard, causing him significant bodily injury?
The trial court found that this was an adequate factual basis for the plea which was accepted pursuant to R. 3:9-2. In accordance with the negotiated plea agreement, Connolly received a non-custodial sentence to five years probation.
Five months later in his December 20, 2001 deposition in the civil action brought by Hibbard, Connolly denied that he was present at Club XS on the night of the assault. When reminded of his admission at the plea hearing, he explained that he entered the guilty plea for two reasons -- one, economic and the other pragmatic:
I entered the plea for two reasons; one, it was an economic reason. I was already fifteen thousand into my lawyer. The second was if, in fact, somehow we took it to trial and I was guilty, there was a jail term of seven years [the presumptive term for a second degree offense]. So the prosecutor and my lawyer came up with if I took the plea there was going to be no jail time, it was going to be probation. But for those reasons I took the plea.
Connolly also provided certified answers to interrogatories in which he averred that he was not the individual who attacked and beat up Hibbard in the bathroom at Club XS. His answers to interrogatories 2 and 3 were as follows:
2. I have no knowledge of the occurrence set forth in the complaint, as I did not participate in ...