On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-10579-06 and L-5963-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
These two consolidated cases involve indemnification issues arising from the shooting of plaintiff Paul Godley by David Lamarr, while an off-duty police officer of the defendant City of Newark (the City). This appeal requires us to decide whether Lamarr's indemnification claims against the City are barred by the doctrine of res judicata and the entire controversy doctrine due to prior litigation in federal court. We conclude that they are not and affirm the denial of the City's motion for summary judgment.
On July 27, 2003, a confrontation regarding a woman developed between Godley and Lamarr. Lamarr was a Newark police officer and, at the time, he was off-duty but still partially in uniform and armed with his police weapon. Lamarr contended that when Godley approached him and verbally threatened him, he pulled out his gun, identified himself as a police officer, and told Godley to freeze. Instead, Godley's hand moved toward a bulge at his waist, and Lamarr fired his gun. Godley claimed that as he was putting his hands in the air, Lamarr, who was cursing, shot him. In fact, Godley was unarmed, and he sustained serious injuries from the shooting. Lamarr was indicted for attempted murder, aggravated assault, and possession of a weapon for an unlawful purpose. After a jury trial, he was acquitted of all charges.
On November 15, 2004, Godley filed in state court a personal injury and civil rights complaint against the City and Lamarr. Shortly after being served, the City on February 10, 2005, removed the case to federal court. (This litigation will be referred to as "the federal case.")*fn1
Lamarr filed his answer to the federal case on May 18, 2005. In his answer, he asserted a cross-claim for common law contribution and indemnification against the co-defendants, including the City, stating that should he be found liable, "his liability is passive, vicarious and secondary, compared to the liability of the co-defendants, which was active and primary.
The Defendant David Lamarr therefore demands indemnification from the co-defendants."
While the federal case was pending, Lamarr filed on December 29, 2006, a state court action against the City of Newark. This litigation (the Lamarr state court action) is one of the consolidated cases in this appeal. Although all parties agree that Lamarr's complaint asserts a claim for attorney's fees and costs against the City arising from his defense of the federal case, they disagree on whether it also asserts a claim for contractual indemnification against the City. A review of the language in the complaint reveals that it expressly sets forth a claim for contractual indemnification against the City based on the City's negotiated agreement with the Fraternal Order of Police.*fn2
On January 26, 2007, the federal court granted summary judgment for the City. It found insufficient support in the record for Godley's civil rights claims against the City under 42 U.S.C.A. § 1983 for improper hiring, failure to train, inadequate investigation and supervision, and discrimination. The federal court also dismissed Godley's state law claims against the City for negligent hiring, training, and supervision. In reaching this decision, the federal court did not address any indemnification issues nor did it address the question of whether Lamarr was acting within the scope of his employment. The federal court entered an order dismissing "all claims" against the City "with prejudice."
The federal case proceeded on Godley's claims against Lamarr. On May 15, 2007, Lamarr moved to amend his answer to file a third-party complaint against the City for indemnification and contribution. The motion was denied as untimely.
At the trial of the federal case on June 6, 2007, Lamarr stipulated liability and stated that he was acting in his official capacity at the time of the incident. The parties understood that the case would proceed to a bench trial on damages. Further, Lamarr agreed to assign his indemnification claims against the City to Godley, and Godley agreed not to seek any payments from Lamarr personally. At the time the stipulation was placed on the record, the federal judge indicated that counsel for the City had asked to be heard, and the judge said: "I told [him] that the City of Newark is not a party to ...