SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued September 25, 2006 -- Decided December 4, 2006
PER CURIAM
This appeal, like its companion case decided today, Charles Beseler Company v. O’Gorman
& Young, Inc., et als, involves application of the C.5. exclusion in a
standard Workers’ Compensation and Employers Liability Insurance Policy to an employer’s claim for
coverage against an employee’s common-law action. That exclusion bars coverage for “bodily injury
intentionally caused or aggravated by [the insured].”
The facts leading up to this appeal are these. Alexis Attune, an employee
of Delta Plastics (Delta), suffered bodily injury on the job while working on
certain film winding equipment. New Jersey Manufacturers Insurance Company (NJM) defended Delta on
Attune’s workers’ compensation claim and paid compensation benefits as a result of his
injury.
Attune also filed a products liability/personal injury complaint against various entities alleging negligence
in the design, manufacture, sale, distribution, installation, repair, maintenance or modification of the
machinery. Attune also named as defendants Delta and Flexol Packaging Corporation (Flexol), Delta’s
successor company. To avoid the workers’ compensation exclusive-remedy bar of
N.J.S.A. 34:15-8, Attune
alleged that Delta’s conduct created an “intentional wrong” and a “substantial certainty” of
injury for having altered the machine and for having Attune work on the
altered machine.
NJM had denied Delta’s request for a defense to Attune’s complaint, claiming that
the C.5. exclusion in the insurance policy relieved the insurer of any obligation
to defend. Thereafter, NJM filed a declaratory judgment action seeking a determination that
it had no obligation to provide Delta with a defense. NJM moved for
summary judgment and Delta cross-moved. The court granted NJM’s motion, finding that the
exclusion applied, thereby relieving NJM of the duty to defend Delta.
On appeal, a majority of the Appellate Division reversed, finding that the exclusion
of coverage for injury intentionally caused by the insured did not apply to
Delta’s conduct that allegedly was substantially certain to cause injury. One judge dissented.
The matter comes before the Court as an appeal as of right, based
on the dissent in the Appellate Division.
HELD: For the reason’s set forth in Beseler v. O’Gorman & Young, Inc.,
also decided today, the Court affirms the judgment of the Appellate Division. The
C.5. exclusion of New Jersey Manufacturer’s Workers’ Compensation and Employers Liability Insurance Policy
does not apply to the type of conduct alleged in this case – an
unintended injury caused by an intentional wrong.
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join
in this opinion.
Plaintiff-Appellant,
v.
DELTA PLASTICS CORPORATION and FLEXSOL PACKAGING CORP.,
Defendants-Respondents.
Argued September 25, 2006 – Decided December 4, 2006
On appeal from the Superior Court, Appellate Division, whose opinion is reported at
380 N.J. Super. 532 (2005).
Michael J. Marone argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter,
attorneys; Richard J. Williams, Jr., on the briefs).
Leonard Rosenstein argued the cause for respondents (Vasios, Kelly & Strollo, attorneys).
Lance J. Kalik submitted a brief on behalf of amici curiae, Insurance Council
of New Jersey, American Insurance Association, Property Casualty Insurers Association of America and
National Association of Mutual Insurance Companies (Riker Danzig Scherer Hyland & Perretti, attorneys;
Mr. Kalik and Ronald Z. Ahrens, on the brief).
PER CURIAM
This appeal comes to us as of right, based on a dissent filed
in the Appellate Division. N.J. Mfrs. Ins. Co. v. Delta Plastics Corp.,
380 N.J. Super. 532 (2005).
The case, like its companion, Charles Beseler Co. v. O’Gorman & Young, Inc.,
___ N.J. ___ (2006), decided today, involves application of the C.5. exclusion in
a standard Workers’ Compensation and Employers Liability Insurance Policy to an employer’s claim
for coverage against an employee’s common-law action. As in Beseler, the employee claims
bodily injuries that resulted from employer conduct “substantially certain” to cause injury. The
trial court held that the insurer did not have to provide a defense
for the employer to the employee’s complaint because the exclusion applied. The Appellate
Division reversed. Delta Plastics Corp., supra, 380 N.J. Super. at 535. For the
reasons set forth in our decision in Beseler, we affirm the judgment of
the Appellate Division majority below.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-87 SEPTEMBER TERM 2005
ON APPEAL FROM Appellate Division, Superior Court
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Plaintiff-Appellant,
v.
DELTA PLASTICS CORPORATION
and FLEXSOL PACKAGING CORP.,
Defendants-Respondents.
DECIDED December 4, 2006
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
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| CHIEF JUSTICE PORITZ |
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| JUSTICE LONG |
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| JUSTICE LaVECCHIA |
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| JUSTICE ZAZZALI |
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| JUSTICE ALBIN |
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| JUSTICE WALLACE |
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| JUSTICE RIVERA-SOTO |
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