Gordon v. New Hampshire Ins. Co., A--841

• Decision Date: 12 November 1965
• Docket Number: No. A--841,A--841
• Citation: 214 A.2d 533,89 N.J.Super. 246
• Parties: Harvard G. GORDON, Plaintiff-Appellant and Cross-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, a foreign corporation authorized to do business in the State of New Jersey, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 246

89 N.J.Super. 246

214 A.2d 533

Harvard G. GORDON, Plaintiff-Appellant and Cross-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, a foreign corporation authorized to do business in the State of New Jersey, Defendant-Respondent and Cross-Appellant.

No. A--841.

Superior Court of New Jersey Appellate Division.

Argued Oct. 18, 1965.

Decided Nov. 12, 1965.

George J. Kenny, Newark, for appellant and cross-respondent (Pindar, McElroy, Connell & Foley, Newark, attorneys).

Edward M. Gurry, Newark, for respondent and cross-appellant (Gurry & Conlan, Newark, attorneys).

Before Judges SULLIVAN, LEWIS and KOLOVSKY.

The opinion of the court was delivered by

SULLIVAN, S.J.A.D.

This appeal involves the construction of a homeowners' policy--comprehensive form, the issues being whether a workmen's compensation claim by a domestic employee of the insured is covered by the comprehensive personal liability provisions of the policy (Coverage E), and whether the medical expenses of the injured employee arising out of her work-connected injuries are payable under the medical payments provisions thereof (Coverage F).

The undisputed facts are that on September 1, 1963 defendant insurance company issued a homeowners policy--comprehensive form to plaintiff covering premises in Millburn Township, Essex County, New Jersey. During the term of the policy a domestic employee of plaintiff, allegedly suffered bodily injury while on the insured premises and incurred medical expenses for which she filed a workmen's compensation claim against plaintiff. A timely demand was made upon defendant by plaintiff to defend said claim and to pay any award made. However, defendant refused to undertake the defense of the claim or pay any award on the ground that its policy did not afford coverage. Plaintiff thereupon filed suit for a declaratory judgment construing the policy. On cross-motions for summary judgment, the trial court ruled that the policy did not afford coverage of the employee's workmen's compensation claim and that defendant insurance company was not obligated to defend or indemnify plaintiff in such matter. However, the trial court also held that the policy afforded coverage for the medical expenses of the injured employee resulting from the work-connected accident and incurred within one year from the date of the accident, and required defendant to reimburse plaintiff for all such expenses. Plaintiff has appealed from that part of the judgment which held that the policy did not afford coverage of the injured employee's compensation claim. Defendant has cross-appealed from that part of the judgment which held that the policy afforded coverage under the medical payments clause for expenses incurred by the injured employee within one year from the date of the accident.

Proper consideration of the appeal requires that the provisions of the policy be examined.

Section I of the policy relates generally to property coverage and is not here involved.

Section II provides for coverage of personal liability of the insured (Coverage E), and coverage of medical payments (Coverage F). (Coverage G is not here involved).

The pertinent language of the relevant coverage clauses is as follows:

'1. COVERAGE E--COMPREHENSIVE PERSONAL LIABILITY:

(a) Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.

(b) * * *

2. COVERAGE F--MEDICAL PAYMENTS: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury caused by accident,

(a) while on the premises with the permission of an Insured, or

(b) while elsewhere if such bodily injury, (1) arises out of the premises or a condition in the ways immediately adjoining, (2) is caused by the activities of an Insured, (3) is caused by the activities of or is sustained by a residence employee and arises out of and in the course of his employment by an Insured, or (4) is caused by an animal owned by or in the care of an Insured.'

Section II also contains 'SPECIAL EXCLUSIONS' as follows:

'Section II of this Policy Does Not Apply:

(d) under Coverages E and F. to bodily injury to any person (1) if the Insured has in effect on the date of the occurrence a policy providing workmen's compensation or occupational disease benefits therefor, or (2) if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation or occupational disease law, but this subdivision (2) does not apply with respect to Coverage E unless such benefits are payable or required to be provided by the Insured; * * *.'

We consider first the question of coverage under (E), supra. Assuming that a workmen's compensation claim in this State would ordinarily fall within the broad provisions of Coverage E. such claim is specifically excluded under 'SPECIAL EXCLUSIONS' (d)(2).

...