Campbell Soup Co. v. Liberty Mut. Ins. Co.

• Decision Date: 18 January 1990
• Citation: 571 A.2d 969,239 N.J.Super. 403
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 1824, 58 Empl. Prac. Dec. P 41,463 CAMPBELL SOUP COMPANY, Campbell Soup (Texas) Inc., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY; The Home Insurance Company; American Home Insurance Company; Affiliated FM Insurance Company; California Union Insurance Company; Prudential Reinsurance Company; Employer's Mutual Insurance Company; Granite State Insurance Company; Gibraltar Casualty Company; AIU Insurance Company; National Union Fire Insurance Co.; Royal Indemnity Company; Insurance Company of the State of Pennsylvania; New England Insurance Company; Certain Underwriters at Lloyd's, London, and London Market Companies; Allianz Insurance Company; North River Insurance Company; Fireman's Fund Indemnity Corp.; Pacific Employers Insurance Co.; American Centennial Insurance Co.; Centennial Insurance Company; Federal Insurance Company; and American Excess Insurance Company, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 403

239 N.J.Super. 403

571 A.2d 969, 57 Fair Empl.Prac.Cas. (BNA) 1824,

58 Empl. Prac. Dec. P 41,463

CAMPBELL SOUP COMPANY, Campbell Soup (Texas) Inc. Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY; The Home Insurance Company; American Home Insurance Company; Affiliated FM Insurance Company; California Union Insurance Company Prudential Reinsurance Company; Employer's Mutual Insurance Company; Granite State Insurance Company; Gibraltar Casualty Company; AIU Insurance Company; National Union Fire Insurance Co.; Royal Indemnity Company; Insurance Company of the State of Pennsylvania; New England Insurance Company; Certain Underwriters at Lloyd's, London, and London Market Companies; Allianz Insurance Company; North River Insurance Company; Fireman's Fund Indemnity Corp. Pacific Employers Insurance Co.; American Centennial Insurance Co.; Centennial Insurance Company; Federal Insurance Company; and American Excess Insurance Company Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 23, 1989.

Decided Jan. 18, 1990.

George F. Kugler, Jr., for plaintiffs-appellants (Archer & Greiner and Anderson, Baker, Kill & Olick, attorneys; Murray D. Sacks, of the Washington D.C. Bar, admitted pro hac vice, of counsel; George F. Kugler Jr. and Jerold Oshinsky on the briefs).

Burchard V. Martin, for defendant-respondent Liberty Mut. Ins. Co. (Martin, Crawshaw & Mayfield, attorneys; Burchard V. Martin and Michael J. O'Mara on the brief).

Guy A. Cellucci, for defendants-respondents California Union Ins. Co. and Pacific Employers Ins. Co. (White and Williams, attorneys; Richard M. Shusterman, of counsel; Guy A. Cellucci, Regina B. Mapes and Thomas B. O'Brien, Jr., on the brief).

Horn, Kaplan, Goldberg, Gorny and Daniels, for defendants-respondents Gibraltar Cas. Co. and Prudential Reinsurance Co. (Mark Soifer and Nicholas L. Paone on the brief).

Wolff, Helies & Duggan, for defendant-respondent National Union Fire Ins. Co. (Patricia M. Daley on the brief).

Wiley, Rein & Fielding of Washington D.C., admitted pro hac vice, and Hughes, Hendrix & Wallace, for amicus curiae American Ins. Ass'n (Thomas W. Brunner, Laura A. Foggan and Frederick S. Ansell of counsel; Gerald A. Hughes and Henry A. Carpenter, II, on the brief).

Respondents Affiliated FM Ins. Co., Employer's Mut. Ins. Co., Granite Ins. Co., AIU Ins. Co., Royal Indem. Co., New England Ins. Co., Allianz Ins. Co., American Centennial Ins. Co., Federal Ins. Co. and American Excess Ins. Co. join in the brief submitted by respondent California Ins. Co.

The remaining respondents did not file briefs.

Before Judges O'BRIEN, HAVEY and STERN.

PER CURIAM.

Plaintiffs Campbell Soup Company andCampbell Soup (Texas) Inc., appeal from orders for summary judgment in favor of defendants, 22 insurance companies. In their complaint, plaintiffs seek a declaratory judgment that defendants, under the provisions of their general liability and excess coverage policies, must defend and indemnify plaintiffs against a discrimination claim pending before the Equal Employment Opportunity Commission (EEOC).

We affirm the dismissal of plaintiffs' demand that defendants provide a defense in the EEOC proceedings substantially for the reasons expressed by Judge Lowengrub in his comprehensive written opinion reported at 239 N.J.Super. 488, 571 A.2d 1013 (Ch.Div.1989). We agree with the judge's determination that the EEOC's reasonable cause determination was not "the functional equivalent of a suit so as to compel the insurers ... to defend plaintiff against charges of discriminatory employment practices[,]" and that "the duty to defend is triggered when the insured is involved in an adversarial...