On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1036-06 and L-1044-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Chambers.
Plaintiff James Patyrak appeals from the order of the Law Division dismissing his cause of action against defendants State Farm Fire and Casualty and Allstate Insurance Company.*fn1 Plaintiff sought indemnification under two homeowners liability policies issued by defendants for counsel fees he incurred in defending himself against a criminal indictment charging him with third-degree aggravated assault against a police officer, N.J.S.A. 2C:12-1b(5)(a), and fourth-degree resisting arrest during the course of an investigatory stop, N.J.S.A. 2C:29- 2a(3).
The matter came before the trial court by way of defendants' motions for summary judgment. After hearing the arguments of counsel, the court granted the motions finding, as a matter of law, that plaintiff had failed to state a claim upon which relief could be granted. We affirm.
On May 9, 2001, Raritan Township police officers responded to a Dunkin Donuts in Flemington to investigate a report that a man seated in his vehicle in the parking lot "appeared to be intoxicated." Officers already present at the scene, observed a vehicle pull into the parking lot "at a high rate of speed, and park in a parking space driving up over the curb with [its] right front tire." One of the officers approached the vehicle and "detected a strong odor of an alcoholic beverage coming from the [driver's (subsequently identified as plaintiff)] breath." Plaintiff allegedly informed the officer that he did not wish to speak with him, rolled up his car windows, and locked the doors. Two more officers approached plaintiff's vehicle on the driver's side. The officers again asked plaintiff to step out of his vehicle; plaintiff again refused. Left without alternative, two officers forcefully removed plaintiff from the vehicle. According to the investigation report, once outside the vehicle, plaintiff began to struggle and "grabbed [Officer Timothy] Apgar's arm and dug his fingernails into his forearm, causing lacerations." As the officers placed plaintiff in the police car, he started kicking, eventually striking another officer in the right upper leg.
On August 21, 2001, a grand jury indicted plaintiff with aggravated assault of a police officer and resisting arrest. Plaintiff retained counsel to represent him, and the charges were eventually dismissed.
During the relevant time period, plaintiff maintained insurance policies with both defendants. As to defendant State Farm, plaintiff was insured under two policies: a Homeowners Policy and a Personal Liability Umbrella Policy. As to defendant Allstate, plaintiff was also insured under two policies: a Floridian condominium policy, and a personal liability umbrella policy. Plaintiff filed a claim under these polices seeking indemnification for the cost incurred in connection with the defense of the criminal matter, and requested that defendants provide a defense of the criminal charges under both policies.
By letter dated July 6, 2001, State Farm declined liability, informing plaintiff that the conduct alleged in the criminal complaint was not covered under his policies. Specifically, the carrier relied on Section II, Coverage L of State Farm's Homeowners Policy, entitled "Liability Coverages", which provides that:
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice....
The policy defines "occurrence" as "an accident... which results in bodily injury or property damage...." Under Section II Exclusions, the policy denies coverage for bodily injury: "(1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured...." The umbrella policy contains similar language limiting coverage to damages ...