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Hambsch v. Harrsch

Decided: November 6, 1991.

DIANA H. HAMBSCH, PLAINTIFF,
v.
LOUIS HARRSCH, DEFENDANT/THIRD PARTY PLAINTIFF, V. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, THIRD PARTY DEFENDANT



Harper, John J., J.s.c.

Harper

HARPER, JOHN J.S.C.

The issue in this matter is whether third party defendant, New Jersey Manufacturers Insurance Company's motion for summary judgment dismissing the third party complaint should be granted. This issue was presented before the court on September 30, 1991, at which time it reserved judgment and advised counsel that further consideration must be given to the arguments presented and the appropriate standard to be employed.

The central issue for the court to consider is whether the standard employed under the Workers' Compensation Act for determining whether an individual intended to cause a particular injury should be applied in interpreting the exclusion contained in a home owner's insurance policy regarding coverage for injuries resulting from an intentional act. The relevant

facts and positions of the parties relating to this summary judgment motion are set forth below.

Plaintiff, Diana H. Hambsch and defendant Louis Harrsch were both employees of Warner Lambert Company in Morris Plains, New Jersey. On or about February 23, 1988, while both parties were at work, the defendant, in response to an "annoying tapping noise" made by the plaintiff on her computer screen, discharged an airhorn near the right side of the plaintiff's face. The air horn was issued by Warner Lambert to be used to summon persons in case of an emergency. Plaintiff claims that as a result of the defendant's discharging of the air horn, she has suffered a physical injury to her right ear.

A complaint was filed against the defendant on or about April 6, 1988, which specifically set forth the plaintiff's allegations claiming that the defendant caused the air horn to strike the right side of the plaintiff's face with the intent to frighten, harass and annoy the plaintiff and with the intent to cause the plaintiff serious bodily harm.

Although this incident occurred at the work place and would normally be covered under the Workers' Compensation Act, the plaintiff chose to avoid the "fellow-servant rule" and the damages limitation of the Act by asserting that her claim fell within an exception to this Act. Specifically stated the exception contained in N.J.S.A. 34:15-8 reads, in pertinent part:

If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed except for intentional wrong.

N.J.S.A. 34:15-8 (emphasis added). Accordingly, the plaintiff opted to establish that the defendant's acts amounted to an intentional wrong and fell outside the damages limitation of the Workers' Compensation Act so that she, plaintiff, could sue the defendant, a co-employee, for money damages.

On December 13, 1988, the defendant filed a third party complaint against New Jersey Manufacturers Insurance Company (hereinafter referred to sometimes as N.J.M.) in the

instant action. The defendant alleged that, under his Homeowner's Policy, he should be indemnified by N.J.M. against the allegations presented by the plaintiff in her complaint. N.J.M. denied liability to defendant, its insured, claiming that there is no insurance coverage for losses resulting from an intentional act. Thereafter, a trial was held from July 29, 1991 through August 1, 1991 before this court.

During the trial, the court submitted interrogatories to the jury and asked them to determine whether the "defendant, Louis Harrsch, intend[ed] with substantial certainty to harass, annoy and physically injure plaintiff Diana H. Hambsch?" The jury was instructed that "for purposes of this question 'substantial certainty' is defined as the standard greater than both mere knowledge and appreciation of risk and greater than the strong probability of a risk which a person in defendant's circumstance would have or should have known. However, it is a lesser standard than an absolute certainty." In accordance with these instructions and after hearing testimony and extensive argument from the parties, the jury found that the defendant intended with substantial certainty to harass, annoy and physically injure the plaintiff. Following this, the jury returned a verdict for the plaintiff in the amount of $28,500.00, together with $6,775.00 in interest, for a total of $35,275.00.

Since the trial, the defendant has looked to his insurance carrier to indemnify him against this judgment. In light of the jury's determination that the defendant intended with substantial certainty to injure the plaintiff, N.J.M. refuses to indemnify its insured due to a provision in its policy which excludes coverage for bodily injury " which is expected or intended by the insured." (emphasis added) This exclusion in the defendant's policy is ...


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