On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-523-06.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Grall.
Plaintiff, New Jersey Manufacturers Insurance Company (NJM), appeals by leave of court from an order requiring it to provide a defense to defendant Oscar Vizcaino, an NJM insured under a homeowner's policy, for all claims asserted against him in a pending personal injury action, including a claim that he intentionally assaulted the injured party.
The underlying personal injury action arises out of a physical altercation that occurred on April 9, 2004 in a bathroom near the bar at Basile's Italian Bistro in Monroe Township. The first count of the complaint alleges that Vizcaino, who was a patron, "intentionally, willfully and wantonly assaulted and struck" the plaintiff, Jeffrey Lunsford, another patron, causing him personal injuries. The second count alleges that Vizcaino "carelessly, recklessly and negligently assaulted and struck" Lunsford. The complaint also asserts negligence claims against Basile's Italian Bistro and a per quod claim on behalf of Lunsford's wife, Michelle.
Vizcaino requested NJM to provide him with a defense in the personal injury action. NJM agreed to provide a defense to the negligence claim, but denied coverage with respect to the intentional assault claim. NJM's counsel sent Vizcaino a letter, which stated:
NJM does not provide coverage to anyone who intentionally causes bodily injury or property damage. NJM specifically reserves the right to disclaim coverage at a later date if it is determined that your conduct was intentional in nature. Additionally, if it is determined that your actions were intentional, NJM has no duty to indemnify you or pay any judgment rendered against you for your intentional acts.
The letter "strongly advised" Vizcaino to retain his own attorney to provide representation regarding "any non-covered claims."
Thereafter, NJM filed an action against Vizcaino for a declaratory judgment that it is not obligated to provide him with a defense against Lunsford's intentional assault claim. This declaratory judgment action was subsequently consolidated, "for discovery purposes only," with Lunsford's personal injury action.
NJM's obligation for Vizcaino's defense in the Lunsford action was brought before the trial court by cross-motions for summary judgment. The court ruled in an oral opinion that NJM has an obligation to provide Vizcaino with a defense to all claims asserted by Lunsford, including the intentional assault claim, until such time as the negligence claim is eliminated from the case. Accordingly, the court entered an amended order for partial summary judgment requiring NJM to provide a complete defense to Vizcaino in Lunsford's pending personal injury action. The order further provides that NJM's obligation to reimburse Vizcaino for the attorney's fees he previously had incurred in defending Lunsford's personal injury action and in the declaratory judgment action is to be determined after the trial of the Lunsford action.
We granted NJM's motion for leave to appeal from the part of the order that requires it to provide a defense to Vizcaino and subsequently granted Vizcaino's motion for leave to cross-appeal from the part of the order that defers any decision on his application for attorney's fees until after the trial of Lunsford's personal injury action.
The homeowner's policy that NJM issued to Vizcaino contained an exclusion from liability coverage for bodily injury "which is expected or intended" by the insured.*fn1 Thus, it is clear that if Lunsford's sole claim against Vizcaino was for intentional assault, NJM would have no obligation to provide Vizcaino with a defense. The question is whether the inclusion in Lunsford's complaint of a ...