The “employee exclusion” of the CGL policy has been upheld by courts throughout the country, and the trend continued in New Jersey in the recent case of Gabriele v. Lyndhurst Residential Community, L.L.C.
There, a construction management company hired a subcontractor to install a sprinkler system in a new construction project. The foreman of the subcontractor was killed when he was struck by a pallet that fell from the sixth floor of the building project. The construction management company filed a third party suit against the subcontractor’s insurance company, seeking a declaration that the insurer was required to defend and indemnify the management company as an additional insured under the policy.
The insurer argued that two exclusions in its policy applied to this accident: exclusions of claims 1) for personal injuries to “an employee of any insured”; and 2) for any liability for personal injuries that do not arise solely out of the named insured’s work. The trial court decided, on cross-motions for summary judgment, that neither of the exclusions applied, and thus that the insurer was required to provide the coverage sought.
On review, the Appellate Division reversed the trial court’s declaratory judgment, citing the first exclusion as the basis for its decision. The court held that an endorsement to the policy clearly stated that the coverage did not apply to personal injury to an employee of any insured arising out of or in course of, or as a consequence of, employment by any insured. Furthermore, the language in the endorsement clearly superseded the original policy language that merely excluded from coverage those claims for personal injury made by “an employee of the insured,” because the endorsement itself stated that it changed the policy.
Thanks to Christina Emerson for her contribution to this post.
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