On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3080-06.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 17, 2012 -
Before Judges Parrillo, Alvarez and Skillman.
The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).
This is an insurance coverage appeal, which requires us to reconcile an inconsistency between an exclusion contained in the basic coverage provisions of the policy with an exclusion contained in an applicable endorsement to the policy.
Defendant Lyndhurst Residential Community was the owner of a site on which it proposed to construct a building called Riverside Plaza Development. Lyndhurst entered into a contract with defendant Daibes Brothers to be the construction manager for the project.
Lyndhurst also entered into a contract with defendant Bravante Automatic Sprinkler to perform sprinkler work. This contract obligated Bravante to name Lyndhurst and Daibes as additional insureds under its comprehensive general liability policy, which had been issued by third-party defendant International Insurance of Hanover (Hanover). Bravante obtained an endorsement to its policy providing such additional insured coverage.
Salvatore Gabriele was employed by Bravante as its foreman for the sprinkler work it performed for Lyndhurst. On August 3, 2005, a pallet fell off the sixth floor of the building striking Gabriele in the head and killing him.
Josephine Gabriele, as administratrix of Salvatore's estate and administratrix prosequendum, brought this survivorship and wrongful death action against Lyndhurst, Daibes and various other contractors on the job site.
Lyndhurst and Daibes sought coverage from Hanover as additional insureds under the Bravante policy. Hanover disclaimed coverage pursuant to two exclusions in its policy.
Daibes filed a third-party complaint against Hanover seeking a declaration that Hanover was obligated to provide a defense and indemnity for any judgment that might be entered in the Gabriele action. This third-party complaint was brought before the trial court for decision by cross-motions for summary judgment. The court concluded in a written decision that neither of the two exclusions relied upon by Hanover applied to the Gabriele claim against Daibes and therefore declared that Hanover was obligated to provide Daibes coverage in the underlying action.
During trial, the claim against Daibes was settled for the $1 million liability limit of the Hanover policy, with Hanover reserving its right to appeal the declaration of its obligation to provide Daibes with coverage.*fn1
That appeal is now before us. Hanover argues that coverage for Daibes under the policy is precluded by exclusions both for a claim for personal injury to "an employee of any insured" and for any liability for personal injury that does not arise solely out of the named insured Bravante's work. We conclude that the first of these exclusions applies to preclude coverage to Daibes for the Gabriele action. Thus, there is no need for us to consider the second of the exclusions.
Initially, we note that "[e]xclusions in [an] insurance policy should be narrowly construed." Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110, 119 (2005). "Nevertheless, if [an] exclusion is 'specific, plain, clear, prominent, and not contrary to public policy,' it will be enforced as ...