On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2455-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 2010 - Decided: Before Judges Axelrad and J. N. Harris.
Ionbond, Inc. (Ionbond) appeals from summary judgment dismissal of its complaint against Valley Forge Insurance Co. (Valley Forge) seeking a declaratory judgment that Valley Forge had a duty to defend a tort action against it. We reverse and remand for a determination of the amount due to reimburse Ionbond the costs of defense.
Ionbond was a commercial tenant of an office building located in Rockaway. Saviejath Maughan, one of Ionbond's employees, slipped and fell in the parking lot of the complex. At the time of the accident, Ionbond was insured by Valley Forge through a CNA workers' compensation and employers' liability insurance policy. Maughan pursued a workers' compensation claim, not at issue here, for which Valley Forge provided a defense. She also filed a tort action against Ionbond, as the tenant, as well as against the owner of the office building, asserting a premises liability claim. Valley Forge rejected the requested tender of a defense and indemnity for the suit, asserting the Workers' Compensation Act bar, N.J.S.A. 34:15-8, and specific exclusion within the employers' liability provision of the policy.*fn1
Ionbond filed this declaratory judgment and breach of contract action against Valley Forge, seeking a determination that Valley Forge had a duty to defend and indemnify it in the underlying tort action.*fn2 The parties filed cross-motions for summary judgment. They stipulated that Maughan was an employee of Ionbond and was injured in the parking lot of the office building in the course of her employment. Following oral argument on March 5, 2010, the motion judge denied Ionbond's motion and granted summary judgment to Valley Forge dismissing the complaint, finding Valley Forge had no duty to defend the underlying action because it was a compensable workers' compensation claim excluded by the terms of the employers' liability portion of the policy. The ruling was memorialized in an order of the same date. This appeal ensued.
The applicable portions of Part Two, the employers' liability insurance policy then in effect, provided:
A. How This Insurance Applies
This employers liability insurance applies to bodily injury by accident or bodily injury by disease . . . .
l. The bodily injury must arise out of and in the course of the injured employee's employment by you.
We will pay all sums you legally must pay as damages because of bodily injury to your employees, provided the bodily injury is covered by this Employers Liability Insurance.
The damages we will pay, where recovery is permitted by law, include damages:. . . .
4. because of bodily injury to your employee that arises out of and in the course of employment, claimed against you in a ...