No Duty to Defend or Indemnify Additional Insured for its Own Negligence (NJ)

Where language in an insurance endorsement agreed to cover the additional insured for bodily injury “caused, in whole or in part, by [the named insured’s] acts or omissions or the acts or omissions of those actions on [the named insured’s] behalf,” the New Jersey Appellate Division declined to extend coverage for the additional insured’s own negligence.

The concise decision in Smith v. Toys “R” Us – Delaware, Inc. gave no credence to Toys “R” Us’ claim that its agreement with a temporary employment agency entitled it to defense and indemnification for an injury to a temporary employee. The injured worker sued Toys “R” Us after he fell about fifteen feet to a concrete floor from a mezzanine level while working in a warehouse. He alleged that the there were no guardrails or safety precautions in the area where he fell.

Toys “R” Us brought a third-party action against the temporary agency as well as its insurer. Both were granted summary judgment inasmuch as the contract did not explicitly and unequivocally require indemnification for Toys “R” Us’ own negligence. The trial court had found “substantial” evidence to support a finding that Toys “R” Us was responsible for the safety of its equipment and machinery.

In affirming summary judgment for the temporary agency and its insurer, the Court summarily dismissed arguments that the additional insured endorsement offered coverage under the facts presented.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com