On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2722-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris, and Newman.
In this appeal we address whether a commercial general liability insurance policy requires a litigation defense to be provided to an insured facing a Portee*fn1 claim that does not assert either physical injury or manifestation of such to the bystander-victim. The Law Division held that because the allegations in the putative victims' inelegantly worded complaint provided adequate notice of the nature of a covered claim, a defense was required to be provided to the insured parties. We disagree and reverse.
The underlying personal injury action giving rise to this appeal arises from an August 22, 2007 apartment fire. At that time, plaintiffs Magdy and Manal Abouzaid,*fn2 along with their minor son plaintiff Moustafa, were tenants in a second-floor unit of an apartment building owned by defendants-insureds Jack and Sally Pomeranc, doing business as Mansard Gardens Associates, LLC (collectively Mansard). Plaintiff Eman Kandil was also present in the apartment at the time of the fire, along with her own minor sons, plaintiffs Omar and Tarek Osman.
In their initial complaint, plaintiffs jointly asserted that a kitchen fire started when a stove pilot light ignited the vapor from a flammable liquid paint thinner, which had been applied to the floor of the apartment by Jonathan Chaviano, a worker who was either directed or controlled by Mansard. This complaint asserted that the three minor plaintiffs were all engulfed in and injured by the flames; that plaintiff "Manal Abouzaid heard an explosion and ran toward [the] kitchen [where] she saw her son engulfed by a fireball;" and that plaintiff "Eman Kandil saw the fire and the injuries to her sons."
Count one specifically addressed the claims of the minor children only. It asserted a conventional theory of negligence against defendants, which alleged that in addition to physical injuries along with the resultant pain and suffering, the children suffered "emotional injury." Count two incorporated the allegations of the first count and also added a negligence claim under the theory of res ipsa loquitor. In count three, which is the subject of this appeal, the adult plaintiffs asserted that "[s]olely as a result of defendants' negligent conduct, plaintiffs Manal Abouzeid and Eman Kandil have been forced to endure emotional distress and suffering resulting from watching . . . their sons becoming engulfed by flames."
At the time of the fire, defendants were insured by a commercial general liability insurance policy issued by third-party defendant Greater New York Mutual Insurance Company (GNYMIC), which provided, in pertinent part, the following:
SECTION I - COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any suit seeking ...