On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None.
The trial court entered judgment in favor of defendant insurance carrier. 43 N.J. Super. 323 (Law Div. 1957). The Appellate Division reversed, 48 N.J. Super. 314 (App. Div. 1958), and we granted defendant's petition for certification. 26 N.J. 301 (1958).
The facts appear in the opinion of the Appellate Division.
The sole question defendant presses before us is whether the claim by Kelly (employee of the named insured) against Cherry (employee of the South Jersey Port Commission and conceded by defendant to be an additional insured under the "omnibus" clause) falls within the following exclusion:
"This Policy Does Not Apply:
(d) under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law;
(e) under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law; * * *" (Emphasis added.)
Defendant contends the sense of this exclusion to be that a claim for bodily injury to an employee of an insured is beyond the coverage whether or not an employment status existed between the claimant and the insured who injured him. Defendant would thus construe "the insured," italicized in the foregoing quotation, to mean " any insured," or at least "the named insured" for the purposes of the present case. The Appellate Division, after full consideration of the conflicting authorities elsewhere, interpreted the exclusion to apply only to a claim by an employee of that insured (named or additional) who seeks protection under the policy, and hence to be inapplicable where, as here, the relationship of employer and employee does not exist between the litigants.
We agree with the Appellate Division's treatment of this issue, and add that its conclusion is buttressed by the following which appears in "Definition of Insured":
"The insurance with respect to any person or organization other than the named insured does not apply:
"(b) to any employee with respect to injuries to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an ...