KEYKO GIL, Individually and as Guardian ad Litem for the infant KENNETH GIL, Plaintiffs-Appellants,
CLARA MAASS MEDICAL CENTER, Defendant-Respondent, and HUSEYIN COPUR, M.D., and FIRSTCHOICE OB-GYN LLC, Defendants, and EXECUTIVE RISK SPECIALTY INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; ENDURANCE SPECIALTY INSURANCE COMPANY, LTD; FIRST SPECIALTY INSURANCE COMPANY; and STEADFAST INSURANCE COMPANY, Defendants-Respondents.
December 6, 2016
appeal from the Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-8434-11.
A. Mazie argued the cause for appellants (Mazie Slater Katz
& Freeman, LLC, attorneys; Mr. Mazie and David M. Estes,
on the brief).
M. Strollo argued the cause for respondent, Clara Maass
Medical Center (Vasios, Kelly & Strollo, P.A., attorneys;
Ms. Strollo, of counsel; Douglas M. Singleterry, on the
Katherine E. Tammaro argued the cause for respondent
Executive Risk Specialty Insurance Company (Tressler LLP,
attorneys; Ms. Tammaro, of counsel; Ms. Tammaro and Kevin
Sullivan, on the brief).
Michael J. Rossignol argued the cause for respondents
Lexington Insurance Company, Endurance Specialty Insurance,
LTD., First Specialty Insurance Company and Steadfast
Insurance Company (Riker Danzig Scherer Hyland & Perretti
LLP, attorneys; Mr. Rossignol, of counsel and on the brief;
Brooks H. Leonard, on the brief). 
T. Coyne argued the cause for respondents Endurance Specialty
Insurance, Ltd., and First Specialty Insurance Corporation
(McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys;
Mr. Coyne, of counsel and on the brief).
T. Coughlin argued the cause for respondent Steadfast
Insurance Company (Coughlin Duffy, LLP, attorneys; Julia C.
Talarick, of counsel and on the brief).
Judges Fisher, Ostrer and Vernoia (Judge Ostrer concurring).
appeal, we examine clauses contained in insurance policies
covering a hospital to determine, among other things, whether
the trial judge erred in rejecting plaintiffs' arguments
that an allegedly negligent physician was also covered
because he was the hospital's "employee" or a
"leased worker, " or because his limited liability
company was "affiliated or associated" with the
hospital. We conclude the policy language could not be
plausibly interpreted to provide coverage to the physician or
his limited liability company, and affirm.
2011, plaintiff Keyko Gil, on her own behalf and for her
infant child, Kenneth, commenced this medical malpractice
action against Huseyin Copur, M.D., FirstChoice OB/GYN LLC,
and Clara Maass Medical Center, alleging that Kenneth's
birth defects were caused by an emergency Caesarian section
performed by Dr. Copur at Clara Maass in 2004. At the time of
the procedure, Dr. Copur was purportedly acting in accordance
with a services agreement between Clara Maass and
FirstChoice; the latter was an entity formed by Dr. Copur and
motion, the trial judge capped Clara Maass's exposure at
$250, 000, pursuant to the Charitable Immunities Act,
N.J.S.A. 2A:53A-1 to -11, and denied without prejudice
plaintiffs' motion to declare Dr. Copur an employee of
Clara Maass. The judge, however, granted plaintiffs leave to
file an amended complaint and later permitted another
amendment by which plaintiffs sought relief on their own
behalf, and as assignees of Dr. Copur and FirstChoice,
against defendant Executive Risk Specialty Insurance Company,
which issued a policy to Saint Barnabas Health Care
System covering its "employees, " and
against defendants Lexington Insurance Company, Endurance
Specialty Insurance, Ltd., First Specialty Insurance Company,
and Steadfast Insurance Company, which provided excess
insurance. The trial judge later severed the coverage
claims from the medical negligence claim, pending disposition
of the former.
the entry of summary judgment on the coverage issues in the
insurers' favor, plaintiffs filed this appeal, posing
issues about the interpretation of the relevant policies.
Because summary judgment was entered, we employ the familiar
Brill standard which the trial judge was also
required to apply. See Townsend v. Pierre, 221 N.J.
36, 59 (2015).
ascertaining whether the policies provided coverage for
either Dr. Copur or FirstChoice or both, we first consider
that the policies expressly covered "named
insured[s]." FirstChoice and Dr. Copur, however, were
not specifically listed in any of the policies as "named
Executive Risk policy, however, also defined
"insured" as including not only those expressly
"named" but also "any [e]mployee or
[v]olunteer." Since it has not been argued that Dr.
Copur was a volunteer, we turn to that part of the policy
that defined an "employee" as
any person who has an assigned work schedule for and is on
the regular payroll of the Named Insured, with federal and
state taxes withheld. Independent contractors are not
Employees. An Employee's status as an Insured shall be
determined as of the date of the Occurrence or Wrongful Act
upon which a Claim involving the Employee is based.
Lexington policy - which was followed, as to its form, by the
other excess insurers - also included coverage for Clara
Maass's "employees" "but only for acts
within the scope of their employment . . . or while
performing duties related to the conduct of [Clara
Maass's] business." The word "employee" is
defined in that policy as "a person paid by [Clara
Maass] in connection with [its] business." The word
"employee" does not include "a temporary
worker or independent contractor, " but does
include "a leased worker, " which was described as
"a person leased to [the named insured] by a labor
leasing firm, under an agreement between [the named insured]
and the labor leasing firm, to perform duties related to the
operations as described in the Declarations and which are at
[the named insured's] direction."
granting summary judgment in favor of the insurers through
his reading of the policy provisions quoted above, the trial
judge rejected plaintiffs' arguments: (a) that Dr. Copur
was an "employee, " (b) that either Dr. Copur or
FirstChoice fell within the terms of the
"catch-all" provisions, or (c) that Dr. Copur was a
"leased worker." We separately consider these
arguments. But, before that, we observe that although, as
summary-judgment movants, the insurers were required to
demonstrate the absence of a genuine dispute of all material
facts, Brill, supra, 142 N.J. at 540, the
ultimate burden of persuasion rested with plaintiffs, who
stood in the shoes of Dr. Copur and FirstChoice on these
issues,  to show the policies provided coverage.
See Wakefern Food Corp. v. Liberty Mut. Fire Ins.
Co., 406 N.J.Super. 524, 538 (App. Div.), certif.
denied, 200 N.J. 209 (2009); Polarome Int'l,
Inc. v. Greenwich Ins. Co., 404 N.J.Super. 241, 258
(App. Div. 2008), certif. denied, 199 N.J. 133
parties' debate goes so far as to question how we should
determine whether Dr. Copur was an employee for purposes of
the insurance policies in question. Plaintiffs invite us to
look to common-law principles regarding what it means to be
an employee or independent contractor. The insurers urge that
we stick to the plain meaning of the words and phrases
employed without straying into other areas where societal
policies require an alternate view. In this circumstance, we
agree with the insurers but will nevertheless discuss both
policies expressly defined an "employee" as a
person who is paid by the named insured, here Clara
Maass. The Executive Risk policy is very explicit in this
regard, defining an employee within the meaning of that
policy as "any person who has an assigned work schedule
for and is on the regular payroll of the Named Insured, with
federal and state taxes withheld." Dr. Copur testified
at his deposition that he was not an employee, and it is
undisputed that he was not on Clara Maass's "regular
other policies do not define the term "employee" by
insisting upon that person being on the named insured's
"regular payroll" but nevertheless require that the
purported "employee" be "a person paid by
[Clara Maass] in connection with [its] business." Again,
there is no dispute that Dr. Copur was not paid by Clara
Maass; FirstChoice was compensated by Clara Maass,
and Dr. Copur was paid by FirstChoice.
plaintiffs argue that even in the absence of evidence that
Dr. Copur was paid by Clara Maass, other indicia of the
relationship suggested that Dr. Copur was not an
"independent contractor, " which none of the
policies defined. In other words, because "independent
contractor" was not defined, plaintiffs argue that
evidence tending to show Dr. Copur did not fit the common-law
understanding of an "independent contractor" would,
a fortiori, demonstrate his status as an
"employee." We are not persuaded. Because the word
"employee" is defined by reference to specific
attributes and "independent contractor" is not
defined at all, we reject plaintiffs' syllogism.
rules of interpretation require that, so long as it leads to
a result in harmony with the contracting parties' overall
objective, a specific, defined term controls a general,
undefined term. See Bauman v. Royal Indem. Co., 36
N.J. 12, 22 (1961); George M. Brewster & Son, Inc. v.
Catalytic Constr. Co., 17 N.J. 20, 35 (1954); Burley
v. Prudential Ins. Co., 251 N.J.Super. 493, 500 (App.
Div. 1991). "Specific language in a contract controls
over general language, and where specific and general
provisions conflict, the specific provision ordinarily
qualifies the meaning of the general." DCV Holdings,
Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005).
"Even absent a true conflict, specific words will limit
the meaning of general words if it appears from the whole
agreement that the parties' purpose was directed solely
toward the matter to which the specific words or clause
relate." 11 Williston on Contracts §
32.10, at 744 (4th ed. 2012).
to plaintiffs' contentions, we must first ascertain
whether Dr. Copur meets the policy's specific definition
of what it means to be an "employee" for purposes
of insurance coverage. If he does not meet that definition,
we may then conclude he was an independent
contractor. We should not, as plaintiffs argue,
determine whether Dr. Copur is an independent contractor and,
if not, conclude he must be an employee even if he does not