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Bomba v. State Farm Fire and Casualty Co.

August 25, 2005

WESLEY BOMBA, JOHN BOUTHILLETTE AND DONNA BOUTHILLETTE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
STATE FARM FIRE AND CASUALTY COMPANY; EDWARD ABRAMS, SR., AND JOYCE ABRAMS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9365-03.

The opinion of the court was delivered by: Hoens, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued February 28, 2005

Before Judges A. A. Rodríguez, Cuff and Hoens.

Plaintiffs Wesley Bomba, John Bouthillette and Donna Bouthillette appeal from the May 20, 2004 order of the Law Division denying their motion for summary judgment and granting defendant State Farm Fire and Casualty Company's cross-motion for summary judgment. We affirm.

This appeal raises an issue not previously addressed by our courts. The underlying declaratory judgment complaint sought coverage under a homeowners' insurance policy for claims by two police officers injured when the insureds' adult son fired a shotgun and hit the police officers multiple times. Specifically, the issue raised on appeal is whether the events leading to the officers' claims for their injuries constitute a single occurrence or a series of separate occurrences as that term is defined in the homeowners' policy.

The following factual summary forms the basis for the complaint and our analysis of the issues on appeal. On December 21, 2000, Bomba, who was the South River Police Chief, and Police Lieutenant John Bouthillette*fn1 responded to a report of gunshots being fired on William Street in South River. As they drove down that street, Edward Abrams, Jr., emerged from behind a van. He was dressed in camouflage attire and had a pump action shotgun which he was pointing up into the air. He then lowered the gun and fired into the police car, striking and injuring both Bomba and Bouthillette. The gunman next moved in front of the patrol car, firing again and striking both Bomba and Bouthillette a second time. Bouthillette then got out or was helped out of the car and fell down onto the roadway between the car and the curb. Bomba radioed for help, removed his seatbelt and fired several shots at the gunman from inside of the patrol car. In response, the gunman pointed the gun at Bouthillette but did not fire, retreating slightly. Bomba positioned himself between the gunman and Bouthillette, who was still on the pavement, unable to get up. At the same time, the gunman stopped and reloaded his shotgun. He then knelt and fired again at Bomba, striking him in the abdomen and causing Bomba to collapse. Another officer arrived and fired at the gunman, hitting him and wounding him fatally.

At the time of these events, the gunman resided with his parents, defendants Joyce Abrams and Edward Abrams, Sr. In January 2002, plaintiffs filed a complaint naming Joyce and Edward Abrams, Sr. as the only defendants. That complaint alleged that defendants negligently maintained firearms in their home, negligently supervised their son, and negligently entrusted the firearms to him. Defendants filed their answer, denying liability and asserting a variety of affirmative defenses. During discovery, plaintiffs learned that defendants Edward and Joyce Abrams maintained a homeowners' insurance policy with State Farm. The policy included personal liability coverage of $100,000 per occurrence, defined as follows:

Occurrence, when used in . . . this policy, means an accident, including exposure to conditions, which results in:

a. bodily injury; or

b. property damage; during this policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.

State Farm, in response to plaintiffs' demands, sought and was granted leave to deposit the $100,000 policy limit into court in November 2003.

Plaintiffs thereafter filed a declaratory judgment complaint against defendants Edward and Joyce Abrams and against defendant State Farm, seeking a declaration of the extent of the coverage afforded by the homeowners' policy. Shortly after they filed the declaratory judgment complaint, plaintiffs moved for summary judgment, asserting that each of the gunshots fired by the gunman constituted a separate occurrence for purposes of coverage under the State Farm policy. Defendant State Farm cross-moved, contending that there was only a single occurrence as it was defined by the policy language. State Farm argued that ...


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