On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-621-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Lisa, Reisner and Alvarez.
In this insurance coverage case, we consider Jonathan Singer's appeal from an order dismissing his claim against Continental Casualty Company (Continental), the issuer of a workers' compensation and employers' liability insurance policy on his podiatric practice. The practice was conducted in a residential property owned by Jonathan and his wife, Marcia Singer, in Bayonne. The Singers also held a homeowners' insurance policy issued by ACE Insurance Company of North America (ACE). Monica Hart, an employee of Jonathan's podiatric practice, slipped and fell on the ice in front of the insured property while leaving work one evening. She pursued a workers' compensation claim, which Continental defended and which ultimately resulted in a settlement providing for an award of benefits to her. Hart also filed this civil action against the Singers alleging a premises liability claim.
ACE had previously filed a declaratory judgment action seeking a determination that it was not obligated to defend or indemnify the Singers because of the business activities exclusion in its policy. The trial court ultimately determined that the exclusion applied to Jonathan but not Marcia. ACE provided counsel for Marcia in Hart's underlying tort action. That claim eventually settled. Although a dispute between Marcia and ACE regarding counsel fees and costs incurred by Marcia in the underlying action were originally part of this appeal (including a cross-appeal by ACE), that aspect of the appeal has been settled and a stipulation of dismissal has been filed. Accordingly, we dismiss ACE's cross-appeal, and we will not further address any issues pertaining to ACE's duty to defend or indemnify.
In the underlying tort action, Jonathan filed a third-party complaint against Continental seeking a declaration that Continental had a duty to defend and indemnify him. The trial court eventually dismissed Hart's claim based upon the worker's compensation exclusivity bar. See N.J.S.A. 34:15-8. The trial court also issued an order at that time dismissing as moot Jonathan's claim against Continental for attorney's fees and costs incurred in defending the Hart action. Jonathan's reconsideration motion was denied. This appeal followed.*fn2
Jonathan argues that the trial court erred in dismissing his third-party complaint against Continental and denying his motion for summary judgment declaring that Continental had a duty to defend and indemnify him. He argues that the policy provisions render Hart's claim against him a covered claim, and that such a duty existed. Because Hart's claim was ultimately dismissed, no issue regarding indemnification arises. From our review of the policy and our consideration of the legal principles guiding interpretation of insurance policies, we conclude that Continental had a duty to defend Jonathan against Hart's claim. Accordingly, we reverse and remand for a determination of the amount due to reimburse Jonathan for the costs of defense.
The applicable portions of the Continental policy, which was in effect when Hart fell and was injured, provided:
PART TWO - EMPLOYERS LIABILITY INSURANCE
A. How This Insurance Applies
This employers liability insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.
1. The bodily injury must arise out of and in the course of the injured ...