United States District Court, D. New Jersey
September 12, 2005.
BENJAMIN KAMINECKI, DAVID KAMINECKI, STACEY EDELMAN-KAMINECKI, and JOSHUA EDELMAN, Plaintiffs,
SCOTTSDALE INSURANCE COMPANY, et al., Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This matter comes before the Court upon the motion by Defendant
Scottsdale Insurance Company ("Scottsdale") for partial summary
judgment, seeking dismissal of Plaintiffs' Complaint, Count II of
Intervenor Plaintiff Sean Jackson's Complaint, and all cross-claims against Scottsdale, with regard to the
Commercial General Liability Policy CPS0332871 ("Policy") issued
to the Strand Corporation (the "Strand") by Scottsdale. The issue
presented is whether coverage extends to the injuries suffered by
Jackson while working for the Strand. Because the language of the
policy unambiguously excludes coverage for the sort of injury
sustained, the motion will be granted.*fn1
The instant motion relates to the underlying dispute in
Jackson v. Kaminecki, Civil No. 02-2405 (Simandle, J.), wherein
Plaintiff, Sean Jackson, seeks damages for injuries sustained on
August 16, 2000 while working within the scope of his employment
for the Strand Corporation.*fn2 Jackson was at the time
employed as an attendant on an amusement park ride called "Chaire
Ride" (a/k/a "Monster Mash Haunted House Ride"), an adult roller
coaster, when he fell between two moving cars, causing his leg to
On November 19, 2001, Jackson was approved to receive workers'
compensation benefits for his injuries. Thereafter, on May 14,
2002, Jackson filed suit in this Court against Benjamin and David
Kaminecki ("the Kamineckis") and others alleging, inter alia, claims of strict liability, intentional
misconduct and negligence. The Kamineckis requested their
insurer, Scottsdale Insurance Co., to provide a defense for them
in the Jackson case, but Scottsdale refused. Scottsdale
maintains that the insurance policy at issue excludes coverage
for "bodily injury to an employee." The relevant provision of CGL
Policy CPS0332781 states:
This insurance does not apply to:
e. Employer's Liability
"Bodily Injury" to:
(1) An "employee" of the insured arising out of and
in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the
insured's business. . . .
(Def. Ex. B.) Moreover, the Policy further provides that the
above exclusion applies "(1) Whether the insured may be liable as
an employer or in any other capacity; and (2) To any obligation
to share damages with or repay someone else who must pay damages
because of the injury." (Id.) On March 31, 2004, the Kamineckis filed the instant declaratory
judgment action against Scottsdale seeking a declaration that
Scottdale has a duty to defend the Kamineckis in the Jackson
case. The instant motion for partial summary judgment was filed
on October 18, 2004.*fn3
[Docket Item 19.]
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record
"show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c).*fn4 The threshold inquiry is
whether there are "any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Brewer v. Quaker State
Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation
omitted).*fn5 III. DISCUSSION
"An insurer's duty to defend an action against the insured is
determined by whether the allegations set forth in the
complainant's pleadings fall within the purview of the policy
language." L.C.S. Inc. t/a D'Jais Bar, Inc. v. Lexington Ins.
Co., 371 N.J. Super. 482 (2004) (citing Ohio Cas. Ins. Co. v.
Flanagin, 44 N.J. 504, 512 (1965)). "It is the nature of the
claim for damages, not the details of the accident or the
ultimate outcome, which triggers the obligation to defend."
L.C.S., 371 N.J. Super. at 490 (citing Flanagin,
44 N.J. at 512).
Here, the underlying complaint filed by Jackson alleges that on
the date he was injured, Jackson was an employee of the Strand
Corporation as a "scare person" on the Chaire Ride. (Compl. ¶
16.) In that capacity, Jackson was responsible for "surpris[ing],
scar[ing] and otherwise entertain[ing] patrons of the ride."
(Id.) Specifically, the complaint alleges that Jackson "was
specifically instructed to scare and entertain the riders by
jumping between cars onto steel plates which covered the
operating mechanism of the ride." (Id. ¶ 18.) It is undisputed
that Jackson allegedly sustained the injuries complained of while
performing those duties as an employee of Strand. (Pl. Rule 56.1
Statement ¶ 3.) As Scottsdale correctly points out, the relevant policy
language here unambiguously excludes coverage for "`[b]odily
injury' to . . . [a]n `employee' of the insured arising out of
and in the course of . . . [e]mployment by the insured" or
"`[b]odily injury' to . . . [a]n `employee' of the insured
arising out of and in the course of . . . [p]erforming duties
related to the conduct of the insured's business. . . ." (Def.
Ex. B.) Moreover, the Court finds as a matter of law that Jackson
was injured during the course and within the scope of his
employment, thus triggering that exclusion. Because, "[a]n
insurance policy will be enforced as written when its terms are
clear so that the expectations of the parties are fulfilled,"
L.C.S., 371 N.J. Super. at 491 (citing Kampf v. Franklin Life
Ins. Co., 33 N.J. 36, 43 (1960)), the policy language here is
dispositive of the Court's inquiry. The motion for partial
summary judgment by Scottsdale will be granted. IV. CONCLUSION
For the reasons expressed above, the motion by Defendant
Scottsdale Insurance Company for partial summary judgment,
seeking dismissal of Plaintiffs' Complaint, Count II of
Intervenor Plaintiff Sean Jackson's Complaint, and all
cross-claims against Scottsdale, with regard to the Commercial
General Liability Policy CPS0332871 issued to the Strand
Corporation by Scottsdale, will be granted.
The accompanying Order will be entered.
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