On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3630-03.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2005
Before Judges Stern, Parker and Grall.
Plaintiff United States Liability Insurance Group (USLIG) appeals from a judgment of December 3, 2004, entered on cross motions for summary judgment, in this declaratory judgment action commenced to establish which carrier was obligated to provide a defense to Seabrook House, which was insured by both.*fn1
In essence, USLIG was ordered to reimburse defendant Security Insurance Company (Security) for the cost of defense in the underlying action, which had been commenced by Regina Marcacci against Seabrook House.*fn2 USLIG was the insurer under Seabrook House's "Professional Liability Policy," and Security provided "workers' compensation and employer's liability" protection. In the underlying complaint, Marcacci sought recovery under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., because she was fired in retaliation for her reports concerning fraud by her employer Seabrook House. Marcacci alleges that she was the only vice-president and employee terminated during an alleged restructure. In her original and amended complaint, she alleged, in part:
7. During the course of her employment, plaintiff became aware of several instances of illegal activity, practices and/or conduct by defendant Seabrook House and/or conduct which she reasonably believed constituted illegal activity and/or practices in relation to audits by the State of New Jersey, licensing regulations governing health care and treatment facilities promulgated by state and federal governments and agencies, and other public policies. Examples of such illegal activity, practices and/or conduct include, but are not limited to, "fixing" clinical records for patients which were incomplete; billing and insurance claim improprieties which claimed that services were performed at licensed facilities when they in fact were not; placement of beds in patient rooms that violated the number and manner permitted by law; placing certain patients in facilities not licensed to treat that classification of patients; placing patients in facilities without medical supervision as required by law; hiring employees without obtaining criminal background checks and/or fingerprint testing as required by law; approving and making payment for expenses which are not permissible expenses for a non-profit corporation and not approved by the Board of Directors of defendant Seabrook.
8. During the course of her employment, plaintiff reported such illegal activity, practices and/or conduct to her direct supervisor, Edward Diehl, the President of Seabrook House and/or other supervisors, managers and employees of Seabrook House.
9. During the course of her employment, plaintiff objected to such illegal activity, practices and/or conduct to her direct supervisor, Edward Diehl, the President of Seabrook House and/or other supervisors, managers and employees of Seabrook House.
10. During the course of her employment, plaintiff instructed employees of Seabrook House not to engage in such illegal activity, practices and/or conduct.
11. On February 13, 2001, after having been employed by defendant Seabrook House for almost 20 years, plaintiff was terminated from her employment.
14. Defendant Seabrook House illegally and improperly retaliated against plaintiff for engaging in such protected activity by taking adverse employment action against her during her employment; by removing departments and areas of work from her direct supervision and responsibility; by instructing employees under her supervision to disregard her instructions and directions; by taking other adverse ...