On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Brody and Ashbey. The opinion of the court was delivered by King, P.J.A.D. Brody, J.A.D., concurring.
This case involves the duty of a comprehensive general liability insurance carrier to defend a suit brought for wrongful termination of employment. The insured prevailed by summary judgment in a suit on the policy to compel the carrier to defend and, if necessary, indemnify it. We conclude that there was no coverage and reverse.
This suit arises from a complaint filed on December 12, 1986 by Georgia DePiero against John's Cocktail Lounge, Inc. and John and Florence Greeley. DePiero alleged that she was wrongfully terminated from her job as a bartender at the Lounge in Westville, Gloucester County, for refusing to serve an alcoholic beverage to an inebriated customer on September 28, 1986. In answers to interrogatories in that suit, DePiero stated: "I was told earlier that day, by my boss, to 'flag' drunk customers because the ABC was in Westville. Later that day, I was fired for doing just that." DePiero also claimed that the inebriated customer, William Umba, had threatened to have her fired. DePiero stated that after she told Umba to leave the bar, Umba replied: "Now you're pushing this too far, girl. I'm going to talk to John [Greeley] and you won't be here next week."
In a letter dated October 1, 1986, defendant John Greeley, the Lounge's manager, formally terminated DePiero's employment. The letter stated: "Please be advised effective Thursday Oct. 2, 1986 I am forced to lay you off. I have been getting to [ sic ] many complaints from customers. Also because of the situation you had last Saturday nite [ sic ] with our good steady customer when you flagged him his party left the bar. John Manager."
In her complaint DePiero alleged:
4. Plaintiff was dismissed on October 2, 1986 because she refused to serve an alcoholic beverage to an inebriated customer of John's Cocktail Lounge.
5. The termination of plaintiff's employment with defendant was against the clear mandate of public policy of the State of New Jersey.
6. As a result of the wrongful termination of plaintiff's employment, plaintiff has suffered and will suffer the loss of income and fringe benefits, the loss of earnings, capacity and opportunities, the loss of other emoluments of employment, and severe and permanent emotional distress, humiliation, embarrassment and mental suffering.
7. As a further result of the wrongful termination of plaintiff's employment, plaintiff has been caused and will be caused to spend money in an effort to treat her psychological distress.
In answers to interrogatories DePiero alleged these damages:
43. Plaintiff suffered distress and mental anguish as a result of being fired because she did nothing but a good job. Her distress and anguish continue to the present time.
Because she was fired for upholding a legal duty, plaintiff does not know what to do now, with respect to her parttime bartending job, when the possibility of flagging customers arises. She feels great anxiety and stress as a result.
Plaintiff lost income as a result of being fired and incurred medical bills for psychological counselling as a result of same.
DePiero's treating psychologist's report of September 10, 1987 was incorporated by reference into DePiero's answers to interrogatories. The report, in pertinent part, stated this claim for emotional injury:
Ms. DePiero initially consulted me on 10/22/86. At that time she complained of ongoing headaches, insomnia, a high ongoing level of general anxiety, and signs and symptoms of depression. She did not present any indiction of personality, organic, or any other types of gross disturbance.
History revealed that the onset of symptoms was triggered by her being fired from her job as a barmaid. Significant to this was the fact that she enjoyed her job very much, that she was financially and emotionally dependent on it, and that she perceived her firing to be unjust. With this in mind, her presenting emotional difficulties were seen as secondary to this event and she was given the diagnosis: Adjustment reaction with mixed emotional features (DSM/III 309.28).
It is significant to note that Ms. DePiero at this time was a student in a court reporting course. Because of her reality problems relating to the loss of her job, as well as her emotional reaction to it, Ms DePiero had a great deal of difficulty maintaining the concentration needed to study and felt she was falling behind in her work, placing her status in the program in jeopardy. This served to add significantly to her already high level of anxiety and feelings of depression.
Ms. DePiero consulted me on nine occasions in individual psychotherapy. A bill for services is enclosed. She left treatment with her symptomology greatly diminished and feeling more able to ...