On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Dccket No. L-5100-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011
Before Judges Reisner and Simonelli.
In this insurance coverage dispute, 497 Communipaw Avenue Corp. (Communipaw) appeals from an August 31, 2010 order denying its motion to amend two prior orders. The first was a May 18, 2010 order granting summary judgment in favor of Mount Vernon Fire Insurance Company (Mount Vernon)*fn1 and the second was a July 19, 2010 order dismissing the case based on the settlement of the underlying personal injury complaint. We affirm.
This is what happened. Communipaw, which owned a bar in Jersey City, purchased a commercial general liability (CGL) and property insurance policy from Mount Vernon. The first page of the declarations section of the policy specifically indicated that liquor liability coverage was not included. Thus, there was no coverage for claims based on serving alcohol to minors or visibly intoxicated patrons. The second page of the declarations section listed a series of exclusions and definitions. Among them was an "Expanded Definition of Bodily Injury" and an "Assault or Battery Exclusion." The CGL portion of the policy contained an exclusion for expected or intended injury, defined as bodily injury or property damage "expected or intended from the standpoint of the insured." By its terms this exclusion did "not apply to 'bodily injury' resulting from the use of reasonable force to protect persons or property."
However, as indicated in the declarations section of the policy, there were also separate endorsements with additional exclusions. The "ASSAULT or BATTERY EXCLUSION," which appeared as an endorsement to the policy, specifically stated: "This Endorsement modifies insurance provided under" the CGL policy, the business owners coverage, the commercial umbrella policy, and the excess liability policy. The endorsement excluded coverage for:
Any claim, demand or suit based on "assault" or "battery", or out of any act or omission in connection with the prevention or suppression of any "assault" or "battery", including the use of reasonable force to protect persons or property, whether caused by or at the instigation or direction of an insured, its "employees", agents, officers or directors, patrons or any other person [Emphasis added.]
A dispute over the proper interpretation of the policy arose between Communipaw and Mount Vernon, after a bar patron named Beverly Bursey sued Communipaw for injuries she allegedly incurred during an altercation on the premises. According to Bursey's October 15, 2008 complaint, she was attacked by other bar patrons. Bursey's complaint named Communipaw, the bar's manager Robert Venable, and Mount Vernon, contending that they failed to provide a safe environment or adequate security and they served alcohol to minors and intoxicated persons. Mount Vernon declined to provide Communipaw with a defense, relying on the assault and battery and liquor liability exclusions in the policy. Communipaw then filed a cross-claim against the insurer demanding defense and indemnification, and also sued its insurance agent for professional negligence and consumer fraud.
During discovery, Venable testified at a March 2009 deposition that Bursey instigated the fight, tried to knee Venable in the groin, and then led a group of her friends in a second attempted assault on him. Venable testified that he successfully fought off Bursey's attempted assault, punched her, and detained her until the police arrived. In March 2010, Bursey moved, on notice to all parties, for leave to amend the complaint to specifically accuse Venable of assaulting her. The motion was granted and she filed the amended complaint on April 14, 2010.
On the same day that Bursey filed her amended complaint, Mount Vernon filed a motion for summary judgment, citing the assault and battery exclusion of the policy and Bursey's deposition testimony that Venable assaulted her. Despite knowing that Mount Vernon was invoking the assault and battery exclusion in its motion, Communipaw did not file opposition. On May 18, 2010, the motion judge signed the insurer's proposed form of order dismissing the coverage claims, including Bursey's complaint and Communipaw's cross-claim.*fn2
Meanwhile, Mount Vernon had filed an answer to the amended complaint on May 11, 2010. On June 7, 2010, Communipaw and Venable filed an answer to the amended complaint and a cross-claim against Mount Vernon, asserting that Venable acted in self-defense and was entitled to coverage under the policy. Mount Vernon answered the cross-claim on July 12, 2010. On June 28, the judge entered an order granting summary judgment in favor of the insurance agent. Thereafter, Bursey and Communipaw reached a settlement of the underlying personal injury action, and on July 19, 2010, a second judge, who had not handled any of the prior motions, issued an order dismissing the entire case as settled.
Contending that the coverage issue was still undecided, because the amended complaint and cross-claim remained pending, Communipaw filed a motion to (a) alter or amend the May 18, 2010 judgment "to reflect that Summary Judgment is only granted as to the original Complaint" and not as to "the Amended Complaint" or the "Cross Claim to the Amended Complaint," and (b) vacate the July 16 dismissal order. In a letter brief responding to the insurer's opposition, Communipaw's counsel specifically requested oral argument. However, the original motion judge decided the matter without oral argument. A handwritten notation on the August 31, 2010 order indicated that the "above ...