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Memorial Properties, LLC v. Zurich American Insurance Co. D/B/A Zurich North America; Assurance

March 10, 2011

MEMORIAL PROPERTIES, LLC AND MOUNT HEBRON CEMETERY ASSOCIATION, INC. D/B/A LIBERTY GROVE MEMORIAL PARK, PLAINTIFFS-APPELLANTS,
v.
ZURICH AMERICAN INSURANCE CO. D/B/A ZURICH NORTH AMERICA; ASSURANCE COMPANY OF AMERICA; MARYLAND CASUALTY COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2347-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010

Before Judges Rodriguez, C.L. Miniman and LeWinn.

Plaintiffs, a cemetery and crematory, appeal from the May 1 and July 30, 2009 orders of the trial court granting summary judgment to defendant insurance companies dismissing their complaint for defense and indemnification. We affirm.

Between 2006 and 2007, seven civil actions were filed against plaintiffs by family members of decedents buried or cremated at plaintiffs' facilities who had been the "subject of unlawful tissue removal" as part of an illegal scheme of harvesting body parts and tissues that came to light through an investigation in New York in 2006. All of the unlawful activity had occurred in 2002 and 2003; the litigants in the civil actions first learned of their family members' involvement in 2006. Their complaints asserted claims of negligent and intentional infliction of emotional distress, negligent and intentional misrepresentation and negligence.

Defendant Assurance Company of America (Assurance) had issued a general liability insurance policy to plaintiffs effective December 23, 2002 to December 23, 2003. That policy provided coverage for

(1) bodily injury (including mental anguish) or property damage to which this insurance applies arising out of any malpractice, error or mistake committed by your cemetery operations.

(2) mental anguish arising out of the performance or non-performance of any contract made in the usual course of your cemetery operations for the care, burial or other disposition of a deceased human body, the conduct of memorial services or the transportation of a deceased human body by another, excluding, however, any specific agreement to pay for such mental anguish.

(3) property damage to deceased human bodies, the clothing or other personal effects or cremated remains, or to urns, caskets cases, crypts, mausoleums or other property used for the care or burial of a deceased human body, owned by others and in your care, custody or control for the purpose of caring for or burying of a deceased human body[.]

During the period from December 23, 2005 to December 23, 2006, plaintiffs were insured by a policy issued by Maryland Casualty Company (Maryland). That policy provided coverage for "damages because of 'bodily injury' or 'property damage,'" but contained the following exclusion for "improper handling":

A. The following changes are made to Coverage A. Bodily Injury and Property Damage Liability, 2. Exclusions:

3. The following exclusion is added: This insurance does not apply to:

q. Improper Handling

"Bodily injury" or "property damage" arising out of:

(1) Failure to bury, cremate or properly dispose of a "deceased body" by any insured or anyone for whom the insured is legally responsible;

(2) Disarticulation of any part or parts of a "deceased body" by any insured or anyone for whom the insured is legally responsible;

(3) Distribution, sale, loaning, donating or giving away any part or parts of a "deceased body" by any insured or anyone for whom the insured is legally responsible;

(4) Any criminal act or other act prohibited by any law or ordinance committed by any insured or anyone for whom the insured is legally responsible regardless of whether there has been a criminal ...


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