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Charles Beseler Co. v. O'Gorman & Young

September 9, 2005

CHARLES BESELER COMPANY, PLAINTIFF-RESPONDENT,
v.
O'GORMAN & YOUNG, INC., A CORPORATION; FIREMAN'S FUND INSURANCE COMPANIES AND THE AMERICAN INSURANCE COMPANY, CORPORATIONS, DEFENDANTS, AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-687-03.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 15, 2005

Before Judges Stern, S.L. Reisner and Graves.

New Jersey Manufacturers Insurance Company (NJM) appeals from an order of April 2, 2004 that granted the insured-employer Charles Beseler's motion for summary judgment, and denied NJM's cross motion, and declared that NJM was obligated to provide a defense and indemnification to Library Bureau Steel (LBS), a division of Beseler, in a personal injury action filed against it by an employee, Malden A. Homar. NJM has assumed that defense under a reservation of rights.*fn1

NJM contends that it provides "no coverage under [its employer's liability] policy for an intentional-wrong claim." NJM issued a "Workers Compensation and Employers Liability Policy" to LBS. There is no dispute that it provided coverage at the time of the accident. The policy included "Part One -Workers Compensation Insurance" and "Part Two - Employers Liability Insurance."

Count seven of the underlying Homar complaint against Beseler and LBS alleges:

3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper press brake machine at LBS.

4. At the time of the alleged incident, Beseler was one of the entities responsible for the design, manufacture, inspection, servicing and maintenance of the Cincinnati Shaper Machine, including all of its component parts.

5. Beseler was negligent because it failed to adequately design, inspect, service and maintain the Cincinnati Shaper Machine, including all of its component parts.

6. The actions or inactions of Beseler as set forth hereinabove created a defective and dangerous machine and rendered it unfit, unsafe and unsuitable for its intended or foreseeable users.

Count eight of the complaint further alleges:

3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper ...


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