On appeal from the Superior Court, Law Division, Essex County.
R. S. Cohen and A. M. Stein. The opinion of the court was delivered by R. S. Cohen, J.A.D.
[232 NJSuper Page 468] John Lee Stokes was a bus driver employed by Sav-On-Service, Inc. He died in a fall from an elevated roadway after a Christmas party organized by a group of Sav-On employees. A dependency claim in Workers' Compensation was filed; Central National Insurance Company defended and denied work connection. A civil action was also filed against Sav-On and
others. It charged Sav-On with host liability*fn1 and also negligence on the thesis that employees negligently performed the duty they assumed to see Stokes safely home.
A dispute then arose between Central National and Sav-On's general liability insurer, Utica National Insurance Group, as to which carrier had the duty to defend and cover the civil action. As a result, Central National instituted this action for a declaratory judgment as to the parties' rights and responsibilities. Before it was decided, the Workers' Compensation dependency petition was dismissed because Stokes' death did not arise out of and in the course of his employment. In the civil action, Utica made a motion to dismiss the complaint against Sav-On. The motion was granted on the grounds that (1) there was no host liability because Stokes was not alleged to be a motorist causing injuries to a third party, and (2) the co-employees who volunteered to care for Stokes were not negligent in fulfilling that task and, even if they were, they were not acting within the scope of their employment. We affirmed. Stokes v. Lincoln Bus Company, Inc., et al., A-1025-85T1, decided May 9, 1986.
Then, the present case was decided. The Law Division held that both insurers had the primary duty to defend Sav-On in the civil action and should therefore share equally the costs of defense. In addition, the court awarded Utica its attorneys' fees for defending the declaratory judgment action. Central National appealed, and Utica cross-appealed on the thesis that Central National should bear the entire cost of defending Sav-On. Because we conclude that Central National did not cover Sav-On's liability in the civil action, and thus had no duty to defend, we reverse and order that judgment be entered in the Law Division for Central National. We dismiss the cross-appeal.
An insurance carrier normally assumes the duty to defend all claims insured against, whether groundless, false or fraudulent. Central National assumed that duty here. "[T]he carrier's promise is to defeat or pay a claim within the policy coverage." Burd v. Sussex Mutual Insurance Company, 56 N.J. 383, 389 (1970). See also Rooney v. West Orange Tp., 200 N.J. Super. 201, 206 (App.Div.1985). The duty exists only as to counts stating a theory of recovery for which coverage is provided, but not as to counts not covered. Lumbermen's v. United Serv. Auto, 218 N.J. Super. 492, 497 (App.Div.1987). If the allegations of the complaint are ambiguous, doubt as to coverage will be resolved in favor of the insured. West v. McDonald, 103 N.J. Super. 201, 212 (App.Div.), aff'd 52 N.J. 536 (1968).
The Central National policy calls itself a "Standard Workmen's Compensation and Employers' Liability Policy." The relevant portions follow:
I. Coverage A -- Workmen's Compensation: To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law.
Coverage B -- Employers' Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom,
(a) sustained in the United States of America, its territories or possessions, or Canada by any employee of the insured arising out of and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declarations or in operations necessary or incidental thereto, or
(b) sustained while temporarily outside the United States of America, its territories or possessions, or Canada by any employee of the insured who is a citizen or resident of the United States or Canada arising out of and in the course of his employment by the insured in connection with operations in a state designated in Item 3 of the declarations; but this insurance does not apply to any suit brought in or any judgment rendered by any court outside the ...