Appellate Division affirmed granting of motion to dismiss a third-party complaint for failure to state a claim.

The employer’s insurance carrier issued a standard workers’ compensation and employers liability policy to the employer. The plaintiff was injured at work and filed a workers’ compensation claim, which was resolved through an order approving settlement with dismissal (Section 20). The plaintiff also filed a complaint for intentional torts against the employer. They, in turn, filed a third-party complaint against their insurance carrier seeking coverage.

The plaintiff worked as a sewing machine operator and was bitten or stung by an insect while working. She stated that stinging and biting insects were frequently in the packages of materials that employees handled. The workers’ compensation case was ultimately resolved via Section 20. At the time of the settlement, there was no reference to her complaint in the Law Division.

In her complaint for intentional torts, she alleged intentional wrongs within the exception of the workers’ compensation bar. The employer then tendered the complaint to their insurance carrier for defense and indemnification. The insurer denied coverage and, ultimately, moved to dismiss the third-party complaint for failure to state a cause of action. The judge granted the insurers’ motion, noting its policy clearly excluded intentional wrongs from coverage.

The employer appealed, though it was noted that the plaintiff’s case had settled. The only issue was whether the insurer had a duty to defend and indemnity for the intentional wrongs. In its appeal, the employer argued its insurer had a duty to defend as it represented the employer in the workers’ compensation case, due to two exclusions in the policy, and as a matter of public policy. 

Under de novo review, the Appellate Division rejected the arguments. First, the Appellate Division noted the plaintiff only consented to a release of all claims filed in workers’ compensation court as a result of the incident and no mention of the Law Division complaint. Second, the Appellate Division confirmed the exclusion and policy language were unambiguous in excluding coverage for intentional wrongs. Finally, the argument that public policy supports coverage for intentional wrongs was rejected as prior case law has held exclusions were valid. As such, the Appellate Division affirmed the grant the insurer’s motion to dismiss the employer’s third party complaint. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 9, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}