On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2071-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges Rodriguez, C.L. Miniman and LeWinn.
This appeal, calendared back-to-back with Memorial Properties, LLC v. Zurich American Insurance. Co., No. A-0109-09T2, which we also decide today, raises the same issues with respect to defendants Assurance Company of America (Assurance) and Maryland Casualty Company (Maryland).*fn1 We affirm the summary judgment dismissals as to both defendants.
Plaintiff, Adams-Stiefel Funeral Home, Inc.,*fn2 was named in a lawsuit filed in Pennsylvania by Robert and Stephanie Samanns, alleging that the body of Robert's deceased father had been subjected to an illegal scheme of human tissue harvesting that came to light through an investigation in New York State in 2006. This criminal activity also triggered the lawsuits at issue in Memorial Properties.
The Samanns complaint alleged that decedent's body had been entrusted to ANCS, which then "negligently and carelessly cared for, disposed of, and/or prepared the corpse . . . for cremation." Specific allegations of ANCS's negligence included its failure to: (1) "properly request donation of tissue"; (2) "obtain proper and adequate consent from decedent's next-of-kin thereby allowing for the procurement and/or harvesting of tissue from decedent"; (3) "obtain proper and adequate consent from [Samanns] for outsourcing the cremation of decedent's body to" Liberty Cremation, Inc. (Liberty); (4) "assess the legitimacy of Liberty as a business prior to retaining its services"; (5) "inquire into Liberty's business practices in light of the company's costs being considerably lower than market price"; (6) "notify [Samanns] of the transfer of decedent's body to Liberty for cremation"; and (7) "confirm medical information about [decedent], including but not limited to cause of death and age in the preparation of the forms." The complaint also alleged that ANCS "conceal[ed] from [Samanns] the foregoing activities . . . , including the unauthorized entrustment of . . . decedent's body and permitting unauthorized persons access to . . . decedent's body."
The Samanns complaint alleged that the illegal tissue harvesting occurred sometime following decedent's death in March 2005; Robert first learned of that illegal activity in October 2006 when he was notified by law enforcement officials in his home state of Pennsylvania.
Assurance had issued a general liability insurance policy to ANCS for the period of December 19, 2004 through December 18, 2005. That policy provided in pertinent part:
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 damages for "bodily injury" or "property damage" to which this insurance does not apply.
The policy also contained an endorsement that excluded "improper handling":
FUNERAL DIRECTORS PROFESSIONAL LIABILITY This endorsement modifies insurance provided under the following: Commercial ...