On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication January 26, 1996.
Before Judges Pressler, Landau and Conley. The Opinion of the Court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The Opinion of the Court was delivered by CONLEY, J.A.D.
This Worker's Compensation and Employer's Liability insurance coverage appeal arises from the tragic deaths of two employees of defendant insured Joseph Oat Corporation (Oat). Pursuant to the Worker's Compensation and Employer's Liability policy issued to Oat, plaintiff insurer immediately assumed the defense of and coverage for worker's compensation dependency death benefits and funeral expenses. Almost two years later, two separate common law tort suits were filed in the Superior Court. It is conceded that the allegations of those complaints are couched in language designed to survive the exclusivity of the Workers' Compensation Act by alleging conduct rising to the level of "intentional wrong." See N.J.S.A. 34:15-8. *fn1 Indeed, the complaints did survive a motion for summary judgment. But because the complaints must allege conduct that amounts to "intentional wrong" in order to escape the bar of N.J.S.A. 34:15-8, the exclusionary Provision for "bodily injury intentionally caused" in the insurance policy was triggered. Thus, when Oat requested a defense of the suits, plaintiff declined and disclaimed coverage. It then filed this declaratory judgment action. On plaintiff's motion for summary judgment, the trial Judge agreed that the exclusion applied.
We affirm. In doing so, we observe that we are not here dealing with a general liability insurance policy and with the issue of when conduct, which may be considered intentional, nonetheless results in an accidental injury and thus would be subject to coverage under such a policy. See SL Industries, Inc. v. American Motorists Ins. Co., 128 N.J. 188, 212, 607 A.2d 1266 (1992). The viability of the underlying common law actions, by virtue of N.J.S.A. 34:15-8, requires conduct amounting to an intentional wrong within the meaning of worker's compensation law. We are not, then, here called upon to ascertain whether the employer's conduct can nonetheless be considered accidental, as was the issue in SL. If the allegations of the complaints do not rise to the level of intentional wrongs, then there is no viable common law action but the plaintiffs in the underlying action would, of course, retain their recourse to workers' compensation benefits.
The policy is divided into two parts. Part one covers worker's compensation benefits. Part two provides the employer liability coverage. That coverage, however, is limited. As to what the insurer will pay under part two, section B provides:
We will pay all sums you legally must pay as damages because of bodily injury to your employees, provided the bodily injury is covered in this Employers Liability Insurance.
Section C captioned "Exclusions," Provides in pertinent part:
This insurance does not cover: ... 4. any obligations imposed by a worker's compensation ... law ... 5. bodily injury intentionally caused ... by you...."
The duty to defend contained in part two is commensurate with coverage. Section D provides in part:
We have the right and duty to defend, at our expense, any claim, proceeding or suit against you for damages payable by this insurance ... we have no duty to defend a claim, proceeding or suit that is not covered by this insurance. *fn2
Concededly, the scope of the coverage that is purchased by an employer under part two, is substantially reduced by these exclusions. *fn3 There are, however, no ambiguities in these exclusions. We have, moreover, previously observed that there are certain common law claims that would be subject to employer liability coverage. See Central Nat. Ins. Co. v. Utica Nat. Ins. Group), 232 N.J. Super. 467, 471-72 (App. Div. 1989).
The thrust of defendants' contention here is their assertion that in denying the motions for summary judgment in the underlying complaints, the motion Judge construed Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985) as providing, within the "intentional wrong" statutory exception to workers' compensation exclusivity, either a cause of action based upon subjective intent to cause injury or, alternatively, a cause of action based upon intentional conduct with a substantial certainty that injury would occur. *fn4 According to defendants, the motion Judge viewed these as separate, but viable, common law causes of action. Only if the first, i.e. subjective intent to harm, were involved would the insurance exclusion apply. It is conceded the complaints do not allege subjective intent. But ...