Bomba v. STATE FARM FIRE AND CAS.

879 A.2d 1252, 379 N.J. Super. 589
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 25, 2005
StatusPublished
Cited by9 cases

This text of 879 A.2d 1252 (Bomba v. STATE FARM FIRE AND CAS.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bomba v. STATE FARM FIRE AND CAS., 879 A.2d 1252, 379 N.J. Super. 589 (N.J. Ct. App. 2005).

Opinion

879 A.2d 1252 (2005)
379 N.J. Super. 589

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.

Superior Court of New Jersey, Appellate Division.

Argued February 28, 2005.
Decided August 25, 2005.

Jennifer L. Haine argued the cause for appellants (Martin, Kane & Kuper, attorneys; James D. Martin, of counsel; Ms. Haine, on the brief).

Robert Zimmerer argued the cause for respondent State Farm Fire and Casualty Company (Zimmerer, Murray & Conyngham, attorneys; Mr. Zimmerer, of counsel and on the brief).

Ansell Zaro Grimm & Aaron, attorneys for respondents Edward Abrams, Sr., and Joyce Abrams (Brian E. Ansell, on the letter relying on the brief filed on behalf of appellants).

Before Judges A.A. RODRÍGUEZ, CUFF and HOENS.

The opinion of the court was delivered by

HOENS, J.A.D.

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 *1253 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[1] 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 the only occurrence was the claimed negligence of the homeowners in permitting their adult son *1254 to have access to the gun that had led to the officers' injuries.

On May 20, 2004, the Law Division judge issued an order denying plaintiffs' motion and granting defendant State Farm's cross-motion for summary judgment. The following day, the judge issued a written opinion in which the judge agreed with defendants that there was a single occurrence within the meaning of the policy language. On appeal, plaintiffs raise two arguments for our consideration. They first assert that the motion judge erred by basing the analysis of the issue on the conduct of the named insureds for purposes of determining what caused the injuries to the two officers. Second, they argue that the motion judge erred in concluding that the policy language defining an occurrence was clear and unambiguous.

As our Supreme Court has instructed us, although in general we defer to the factual findings of the motion judge, see Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84, 323 A.2d 495 (1974), where the decision of the motion judge is based on an interpretation of law rather than one of fact, we owe it no special deference, see Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995), but review the matter de novo, see Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 398, 734 A.2d 738 (1999). Because the decision before us in this appeal calls for an interpretation of law, we are guided by this latter standard.

We begin with a brief review of the published decisions on which the parties rely in their arguments on appeal. Plaintiffs assert that we should first be guided by the principle that ambiguities in an insurance policy are construed in favor of the insured or, as in this case, the party seeking the benefit of the coverage. See Doto v. Russo, 140 N.J. 544, 556, 659 A.2d 1371 (1995); U.S. Mineral Prods. Co. v. Am. Ins. Co., 348 N.J.Super. 526, 538-39, 792 A.2d 500 (App.Div.2002). They further assert that if the language of the policy is ambiguous, our analysis must be governed by the intent of the parties and the reasonable expectations of the insured concerning the extent of coverage. See Meier v. N.J. Life Ins. Co., 101 N.J. 597, 616-17, 503 A.2d 862 (1986).

Defendant State Farm does not disagree with these fundamental propositions.

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