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William B. Kessler Memorial Hospital, Inc. v. North River Insurance Co.

Superior Court of New Jersey, Appellate Division

November 15, 2013

WILLIAM B. KESSLER MEMORIAL HOSPITAL, INC.; FOUNDATION OF WILLIAM B. KESSLER MEMORIAL HOSPITAL; DOROTHY R. BERENATO; NICHOLAS A. CASHAN, III; STEVEN J. KINCAID; RUSSELL J. LUCCA; CAROL MAJLESSI; JOHN C. MARINELLA; GREGORY J. MORANO; GREGORY MARKS; and DAVID L. WEISS, ALL OF WHOM ARE TRUSTEES AND DIRECTORS OF THE KESSLER ENTITIES, Plaintiffs-Appellants,
v.
NORTH RIVER INSURANCE COMPANY, a New Jersey Corporation, Defendant-Respondent, And CRUM & FORSTER; and THE FAIRFAX GROUP, jointly, severally and in the alternative, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5540-12.

Gerard W. Quinn argued the cause for appellant (Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys; Mr. Quinn, on the brief).

John S. Favate argued the cause for respondent (Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Mr. Favate, of counsel and on the brief; Michael J. Forino, on the brief).

Before Judges Harris and Guadagno.

PER CURIAM

Plaintiffs appeal from the Law Division's December 7, 2012 order dismissing their five-count complaint seeking declaratory relief, together with compensatory, treble, and punitive damages. We affirm.

I.

Because this case was decided under the auspices of Rule 4:6-2(e), we apply the well-established standard that governs motions to dismiss for failure to state a claim. Green v. Morgan Props., 215 N.J. 431, 437 (2013) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Accordingly, our inquiry is limited to an indulgent examination of the legal sufficiency of the facts alleged in, or readily referable to, the complaint. Ibid.

In September 2008, defendant North River Insurance Company (North River), issued a one-year claims-made liability insurance policy —— a "Platinum Management Protection" policy (the policy) —— to plaintiffs William B. Kessler Memorial Hospital, Inc. and Foundation of William B. Kessler Memorial Hospital. The nine individual plaintiffs were trustees of the Kessler entities, and are insured pursuant to the terms of the policy.[1]

Section I of the policy provides three types of liability coverage: Insured Person and Organization Liability Coverage (Insuring Agreement A); Employment Practices Liability Coverage (Insuring Agreement B); and Fiduciary Liability Coverage (Insuring Agreement C). Relevant to this appeal is Insuring Agreement A, which provides, in pertinent part, the following:

[T]he insurer shall pay on behalf of:
1. an Insured Person, all Loss in excess of the applicable retention, for which such Insured Person becomes legally obligated to pay as a result of any Insured Person Claim first made during the Policy Period or during the Extended Reporting Period, if exercised, except Loss for which the ...

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