Opinion
Civil No. 02-2405(JBS).
December 17, 2004
Benedict A. Casey, Esq., THE BEASLEY FIRM, Philadelphia, PA, Attorney for Plaintiff.
Richard J. Sexton, Esq., LAVIN, COLEMAN, O'NEILL, RICCI, FINARELLI GRAY, Mount Laurel, NJ, Attorney for Defendant Steve Maleh and Steve Maleh t/a Chaire Ride Co.
Victor P. Wasilauskas, Esq., COOPER LEVENSON APRIL NIEDELMAN WAGENHEIM, P.A., Atlantic City, NJ, Attorney for Defendant Adamar of New Jersey, Inc. d/b/a Tropicana Casino Resort and Aztar Corporation.
LaTonya N. Bland, Esq., CAPEHART SCATCHARD, P.A., Mount Laurel, NJ, Attorney for Intervenor Zurich American Insurance Company.
OPINION
This matter comes before the Court on three separate motions for summary judgment arising from claims brought by Plaintiff Sean Jackson against a number of defendants for an injury he suffered on August 16, 2000 while working on an amusement park ride ("Ride") located on the premises of the Strand Corporation in Wildwood, New Jersey. Defendant Steve Maleh, both individually and trading as the Chaire Ride Co., filed a motion for summary judgment claiming that he cannot be held liable for injuries allegedly caused by an amusement ride that he never owned, operated, or controlled. Third-party Defendants Adamar of New Jersey, Inc., d/b/a Tropicana Casino Resort and Aztar Corporation (collectively, "Adamar"), have also filed a motion for summary judgment claiming they had neither ownership nor control of the Ride. Neither Maleh nor Adamar's motion has been opposed.
Finally, American Zurich Insurance Company ("Zurich"), has intervened and filed a complaint against the Strand Corporation, the Strand Movie Theter and Plaintiff Jackson. Zurich now moves for summary judgment which motion has been opposed by Plaintiff. Zurich claims that Plaintiff's suit should be barred by the exclusivity of the New Jersey Workers Compensation Act,N.J.S.A. 34:15-8 (2004). In the alternative, Zurich argues that if Plaintiff's claim falls into the "intentional wrong" exception to the exclusivity of the Workers' Compensation Act, the injury allegedly caused by Defendant's intentional conduct is excluded by employer liability policy it issued to Defendant Strand.
For the reasons discussed herein, Defendant Maleh and Third-party Defendant Adamar's unopposed motions for summary judgment will be granted. Intervenor Zurich's motion for summary judgment will be denied.
I. BACKGROUND
1. Underlying Facts
Plaintiff Sean Jackson alleges that he was injured while he worked on the "Monster Mash Haunted House Ride" ("Ride") located at 3100 Boardwalk, Wildwood, New Jersey on August 16, 2000. (Compl. at ¶ 20.) At the time, the Ride was owned by Defendant Strand Corporation. (Compl. at ¶ 15.)
The Ride was manufactured in 1988 by third-party defendant Zierer Karussell-und Fahrzenugbau GmbH (Zierer) for another third-party defendant, Adamar, for use at the Tropicana Casino in Atlantic City. (Pl. Br. Opp'n. at 4.) The Ride was meant to be operated in the dark with each car able to swivel in order to see lighting and fiber optics displays. (Id.) The Ride was sold by Adamar in 1995 to third-party defendant Atlantic Pier Amusements, Inc. (Adamar Br. Summ. J. at ¶ 3.) The Ride was sold "as-is" to Atlantic. (Id. at ¶ 4.) Atlantic dissembled and removed the Ride from the Tropicana premises. (Pl. Br. Opp'n. at 4.) The Ride was stored by Atlantic until it was sold to Defendants Kami and Kaminecki on behalf of The Strand in November, 1998. (Id.)
The Ride, as purchased, was too large to fit in its proposed new location, the building that housed The Strand. (Pl. Br. Opp'n. at 4.) It was reconfigured to fit within the building by removing over one hundred and fifty feet from the Ride. (Id.) The Strand had the modified Ride certified by a structural engineer, Defendant Stubee. (Id. at 5.) Stubee found there was "no change in the dynamics of the forces involved from those originally designed by Zierer." (Id.) As indicated by the records of the State, the Ride, although certified by an engineer, had chronic safety issues and repeatedly failed safety inspection by the State of New Jersey. (Id. Ex. L.) State inspectors were specifically concerned with the lack of covers for the Ride's moving parts between cars. (Id. Ex. M.) The safety concerns of the state inspectors prevented the Ride from opening until late July, 2000. (Id. at 5.)
The Ride had been in operation for almost a month when Plaintiff Jackson began working for The Strand. In that month, there were two other accidents in addition to that of the Plaintiff. Plaintiff alleges that, on July 28, 2001, a young boy was hurt when he fell through the opening between the cars. (Compl. at ¶ 32.) The boy's mother complained to the defendants who apologized and refunded the money paid for the Ride. (Compl. at ¶ 33.) Again, Plaintiff claims that approximately ten days prior to plaintiff's accident, another Strand employee was injured when he fell in the same location as the plaintiff. (Compl. at ¶ 30, Pl. Br. Opp'n. Ex. P.) The safety cover allegedly was not in place at that time and the employee reported the accident to the defendants. (Compl. at ¶ 31.)
On the afternoon of August 16, 2000, Jackson and a friend approached Kaminecki about working for The Strand. (Pl. Br. Opp'n. at 3.) They were given jobs at $6.00 per hour and were told to return at six that evening to begin. (Pl. Br. Opp'n. at 3.) When Jackson returned at that time, Jackson was told to choose a costume by either Defendant Kami or Kaminecki and to scare the people who were on the Ride. With little or no training, Jackson climbed onto the dark Ride wearing a mask and costume and began moving between cars to scare the riders. (Pl. Br. Opp'n. at 3.)
Less than two hours after he began, Jackson attempted to jump between two cars and fell between them, severing part of his leg. (Pl. Br. Opp'n. at 3.) At the time Plaintiff fell, the safety cover between the cars was not in place. (Pl. Br. Opp'n. at 6.) The safety cover in question was supposed to guard the space between two cars on the Ride. When the Ride was modified to fit inside The Strand, it was shortened between the first and last car and required a new safety cover between the cars. (Pl. Br. Opp'n. at 6.) The new safety cover, when in place, would bend and interfere with the functioning of the Ride. (Pl. Br. Opp'n. at 6.) Although it had to be in place for the Ride to pass inspection, the piece was removed once the Ride was approved for use. (Pl. Br. Opp'n. at 6.) Maintenance employees testified that the cover located where the plaintiff was injured was an ongoing problem with the Ride and was removed to enable the Ride to run. (Pl. Ex. V, Bailey Dep., at 30, 39, 43, 49-51.) After the accident, the Ride was shut down and The Strand received numerous citations from the New Jersey Department of Community Affairs, the Occupational Safety and Health Administration (OSHA), and the City of Wildwood, for various violations including the lack of required safety covers. (Pl. Br. Opp'n. Ex. 2.)
On March 26, 2001, Jackson filed an amended petition for workers' compensation with the State of New Jersey Division of Workers' Compensation for the injuries he suffered while employed by The Strand. (Def. Zurich Br. Summ. J. at 3-4, Ex. C.) The State approved settlement of his claim on November 19, 2001. (Def. Zurich Br. Summ. J. at 3-4, Ex. D.) Almost six months later, on May 14, 2002, Jackson filed the present suit in this Court, alleging claims of negligence and strict liability.
II. DISCUSSION
1. Summary Judgment Standard of ReviewSummary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the nonmoving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotingLiberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately has the burden of persuasion at trial.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
The nonmoving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);see Liberty Lobby, 477 U.S. at 249-50. Thus, if the opposing party's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50.
Where, as in the case of Defendants Maleh and Adamar, the nonmoving party fails to oppose the motion by evidence such as written objection, memorandum, or affidavits, the court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). If the nonmoving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate" and only if movants are entitled to a judgment as a matter of law. Fed.R.Civ.Proc. 56(e); see Anchorage Assocs., 922 F.2d at 175.
A. Defendant Maleh's Summary Judgment Motion
Defendant Maleh claims that there is no genuine issue of material fact regarding his alleged ownership and operation of the Ride upon which Plaintiff was injured. No opposition has been filed and no party has requested an extension of time to respond. This motion, therefore, will be considered unopposed.
Maleh claims that he never conducted any business activities with the defendant-owners of the amusement Ride in question. (Def. Maleh Br. Sum. J. at 9.) Maleh also testified that he had never owned nor operated the Ride. (Id. at 9.) Both of these claims are amply supported by Defendants Benjamin Kaminecki, David Kami, Stacy Kaminecki, and Joshua Edelman. (Id. at 9-10.) Each of these Defendants testified during his/her depositions that Steve Maleh had nothing whatsoever to do with the operation of the Strand Corporation or the Ride. (Id. at Ex. D-I.)
There are only two pieces of evidence which tend to connect Maleh to the Ride. The first is a lease which purports to bear Maleh's signature. (Def. Maleh Br. Sum. J. at 10.) Likewise, each of the co-Defendants in this case testified during his deposition that Maleh was not involved with the lease in question and that the document was forged. (Id. at 10.) The second link is a permit application for the Ride. Again, each co-defendant said that Maleh had nothing to do with the operation of the Ride and therefore would not have applied for a permit. (Id. at Ex. D-I.)
Neither Plaintiff Jackson nor any of the third party defendants presented any evidence by way of opposition to Maleh's motion for summary judgment that would link Maleh to the operation of the Ride. The Court must take as true all material facts provided in Maleh's brief and accompanying exhibits. Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990). As Maleh argues, "[e]very witness in this case who had any role in the ownership/operation of the Ride, the Strand, the Chaire Ride Co., or any relevant aspect of the case, has each . . . confirmed Maleh's non-involvement in any way with the ride at issue." (Def. Maleh Br. Sum. J. at 11.) Without any evidence to the contrary presented by the plaintiff or third party defendants, no reasonable jury could conclude that Defendant Maleh's was in any way responsible for the injuries suffered by plaintiff in this case. Therefore, Defendant Maleh's Motion for summary judgment must be granted.
B. Adamar and Aztar's Morion for Summary Judgment
The Third Party Complaint filed by Kami and Maleh against Adamar and Aztar alleges that "the service, repair and maintenance of this ride may have been performed negligently while the ride was in the possession and control of Aztar and Adamar." (Kami Third Party Compl. at 7 (emphasis added).) In addition, Kami and Maleh allege that since Adamar and Aztar knew or should have known about the negligent maintenance, they had a duty to inform the purchasers of the Ride of the negligent maintenance. (Id.) Kami and Maleh are seeking contribution and indemnity from Adamar and Aztar in the event they are found liable.
Adamar and Aztar filed a motion for summary judgment, claiming that it had "no degree of ownership, control, or operation of the ride" involved in this case. (Def. Adamar Br. Sum. J. at 9.) Adamar and Aztar also argue that there is no causal link between their ownership of the Ride and the injury sustained by Plaintiff Jackson. (Id. at 12.) Opposition to this motion for summary judgment has not been filed and neither Defendant Kami nor Maleh has requested an extension of time to respond. This motion, therefore, will be considered unopposed.
In 1995, five years prior to the alleged injury in this case, Adamar sold the Ride "as is" to another third-party defendant, Atlantic Pier Amusements, Inc. (Id. at 2.) The Ride was subsequently sold by Steel Pier Raceway, Inc. to Strand Corp. (Id. at 3.) The Uniform Commercial Code as enacted in N.J.S.A. 12A:2-316, states that the use of the term "as is" or "with all faults," serves to exclude all implied warranties that would normally accompany the sale of goods. Turner v. International Harvester Company, 336 A.2d 62, 66-67 (N.J.Super.Ct. Law Div. 1975).
Kami and Maleh provided no evidence that Adamar and Aztar negligently maintained the Ride in question while they owned it. In fact, depositions of both Defendants Kami and Maleh revealed that neither had any specific evidence suggesting negligence on the part of Adamar and Aztar. Additionally, Kami and Maleh failed to offer any evidence that Adamar and Aztar had any contact or control over the Ride after its sale in 1995, including the date of the Plaintiff's accident.
Based upon all submissions received in this matter, there is insufficient evidence favoring Defendants Kami and Maleh to permit a reasonable jury to find in their favor on their cross-claim against third party Defendants Aztar and Adamar. Therefore, the unopposed motion for summary judgment of Aztar and Adamar will be granted.
C. Summary Judgment as to Intervenor American Zurich Insurance Company
Zurich seeks summary judgment arguing that the Workers' Compensation Act, N.J.S.A. 34:15-8 (2004), bars all negligent and non-intentional tort claims against Plaintiff's employer, The Strand Corporation, contained in the underlying complaint. (Zurich Br. Sum. J. at 4.) Such a judgment would require dismissal of all counts against Strand for which Zurich could be obligated to defend and indemnify. Additionally, Zurich seeks a declaratory judgment that Defendant Kami's insurance policy does not cover punitive damages. Zurich's motion for summary judgment is opposed by Plaintiff Jackson.
Zurich claims that Jackson is barred from recovery in this case because he has already received a settlement under New Jersey's Workers' Compensation Act. (Id. at 5-8; Exs. C D.) Zurich contends that the actions of the defendants in this case do not rise to the level of "intentional wrong" necessary to qualify for the limited exception to the Workers' Compensation Act. (Id.) For these reasons, Zurich argues, "plaintiff's claims, which allege conduct other than intentional conduct against The Strand Corporation, should be dismissed with prejudice as barred by the Workers' Compensation Act." (Id. at 8.) In the alternative, if the actions of Defendants are found to fall within the "intentional wrong" exception, Zurich contends that the workers' compensation policy purchased by the Strand excludes both damages for intentional wrongs and punitive damages. (Id. at 8-11.)
(i) Plaintiff Should Be Denied Recovery From Zurich
Zurich argues that the plaintiff's claims should be barred by the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-8. That section makes workers' compensation the exclusive remedy against an employer for employees injured in the course of their employment. Id. The sole exception is when the injury is caused by an "intentional wrong." Id. The Workers' Compensation Act ("Act") was initially passed in 1911 to combat the inequities involved in compensating employees for the growing number of industrial accidents. Millison v. E.I. du Pont de Nemours, 501 A.2d 505, 512 (N.J. 1985). The Act requires employees injured in the course of their employment to sacrifice their right to sue their employer in tort in exchange for quick, definite, although usually smaller, compensation for their injuries. Id.
For a more detailed account of the history and development of workers' compensation acts, see the full text opinion ofMillison v. E.I. du Pont, 501 A.2d 505 (N.J. 1985).
In Millison, plaintiffs were current and former employees of Defendant du Pont who contracted occupational diseases from exposure to asbestos. Millison, 501 A.2d at 507. The employees had received benefits for their diseases under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-8, and were attempting to sue du Pont in tort based on the statute's "intentional wrong" exception. The court held that the employees were limited to their workers' compensation recoveries for the contraction of asbestos-related diseases, but could maintain independent tort actions for aggravation of those diseases caused by the "defendants' fraudulent concealment of already-discovered disabilities." Millison, 501 A.2d at 516.
The court in Millison followed the vast weight of authority from many jurisdictions, deciding that the "intentional wrong" exception was meant to be narrowly construed to mean that the defendant intended to injure the plaintiff through his actions.Id. at 513-14. The court adopted a "substantial certainty" standard, requiring that there was a substantial certainty that a specific employer's act would result in an injury to an employee.Id. at 514. In addition, courts must look at both the employer's conduct and the context in which the employer acted to determine whether the results can "fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act." Id. This two prong test must be met in order for the employer's conduct to be considered intentional within the meaning of the New Jersey Workers Compensation law. Laidlow v. Hariton Machinery Co., 790 A.2d 884, 892 (N.J. 2002). This heightened standard reflects the legislative desire that the "intentional wrong" exception be interpreted narrowly. Millison, 501 A.2d at 513.
There are a number of New Jersey cases that have similar factual situations to the case at bar. In Mabee v. Borden, Inc., the plaintiff suffered severe injuries when her hand became entangled in the wheels of a labeler on which she was working. 720 A.2d 342, 345 (N.J.Super.Ct. App. Div. 1998). A safety device that was meant to prevent injury through contact with the machine's moving parts had been mechanically bypassed by the defendant. Id. at 344. The court allowed the plaintiff to present her tort case to the jury, which would have to decide if her employer's action fit the statutory exception to the workers compensation law. Id. at 350. The court found that "it cannot seriously be argued that the Legislature expected that employers would deliberately alter components of its system or remove safety devices because of profit motive or production concerns."Id.
Like Plaintiff Jackson in the case at bar, the plaintiff inMabee had little adequate training on the labeler. Mabee, 720 A.2d at 334-35. Since Plaintiff Jackson is the nonmoving party in a motion for summary judgment, the facts should be evaluated in a light favorable to him. He claims that he was told to walk on the Ride scaring people and received no training or guidance, except to follow the lead of a "scare" person already working on the Ride. (Pl. Br. Opp'n. at 3).
In Laidlow, the facts were substantially similar to the case at bar. The plaintiff was injured on a rolling mill which had a safety guard installed. Laidlow, 790 A.2d at 888. The guard was only in its proper position while being inspected by OSHA; "[a]s soon as the OSHA inspectors left, the safety guard would again be disabled." Id. There were a number of reported near-accidents prior to the plaintiff's injury, yet the employer did not keep the safety guard in place. Id. The court agreed with Mabee court's conclusion that removal of a safety guard can be evidence of an employer's intentional wrong, but urged that "such a determination requires a case-by-case analysis" of whether it was substantially certain that an employee would be injured. Id. at 895-96.
Defendant Zurich cites Fisher v. Sears, Roebuck Co., 833 A.2d 650, 655 (N.J.Super.Ct. App. Div. 2003), for the proposition that courts have rarely found an employer's actions to be "intentional" as required by the workers' compensation statutory exception outside of the manufacturing sector. (Def. Zurich Br. Summ. J. at 7-8). In Fisher, and in McGovern v. Resorts International Hotel, Inc., 703 A.2d 364 (N.J.Super.Ct. App. Div. 1995), also cited by Zurich, a third person caused the injuries to the plaintiffs in each case, acting as an intervening superceding cause of the injury, barring a finding of an "intentional wrong" by the employer. Fisher, 833 A.2d at 658;McGovern, 703 A.2d at 368. Here, however, it is the alleged intentional wrong of the employer, by and through its employees, that caused the injury to Plaintiff.
In conclusion, a reasonable jury could infer upon these facts that defendants Kami, Kaminecki, and The Strand knew that it was substantially certain that the removal of the safety guard would eventually result in an injury to a Ride's scare person. Therefore, plaintiff's suit here is not barred under the exclusivity provision of the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-8.
(ii) Zurich Is Not Liable for Defendant's Intentional Wrongs or Punitive Damages
If the conduct of the Defendants listed in Count I of the complaint is found to be intentional and not subject to the exclusive remedy of workers' compensation, Zurich argues that Defendant Strand's Workers' Compensation and Employer Liability policy does not cover those injuries or punitive damages arising therefrom. (Zurich Br. Sum. J. at 8.) The Strand's policy excludes both "punitive or exemplary damages because of bodily injury to an employee" and "bodily injury intentionally caused or aggravated by" the insured. (Id. Ex. B.) Plaintiff, on the other hand, argues that while the actions of the defendants were "intentional" within the meaning of Millison and the New Jersey Workers' Compensation Act, those same actions were not "intentionally caused" so as to preclude coverage under the policy in question. (Pl. Br. Opp'n. at 20.)
In this case, Plaintiff faces the same dilemma as the plaintiff in N.J. Mfrs. Ins. Co. v. Joseph Oat Corp., 670 A.2d 1071 (N.J.Super.Ct. App. Div. 1995). There, the insurer sought a declaratory judgment that it was not required to defend the employer under the Worker's Compensation and Employer's Liability policy it had issued to the employer. Id. at 1072. The policy contained an exclusion virtually identical to the one in the present case, declining to cover "bodily injury intentionally caused" by the insured. Id. The employer was being sued in tort for the deaths of two of its employees. Id. The workers' families filed a complaint alleging intentional acts by the employer in order to avoid the exclusivity of the Workers' Compensation Act, N.J.S.A. 34:15-8. Id. The court held that "because the complaints must allege conduct that amounts to `intentional wrong' in order to escape the bar of N.J.S.A. 34:15-8, the exclusionary Provision for `bodily injury intentionally caused' in the insurance policy was triggered."Id. The insurance company was not required to defend the employer under the policy. Id.
Here, Plaintiff, in order to avoid the same result as in N.J. Mfrs. Ins. Co., attempts to draw a distinction between actions subjectively intended to cause injury and those that have a substantial certainty to cause injury. (Pl. Br. Opp'n. at 20.) Plaintiff failed to offer any authority to support its proffered distinction. The court in N.J. Mfrs. Ins. Co. specifically rejected this notion, stating "[b]oth subjective intent and substantial certainty of harm are expressive of the same standard, i.e., deliberate intent to harm." N.J. Mfrs. Ins. Co., 670 A.2d at 1074. The vast majority of courts agree that Millison did not change New Jersey's definition of an intentional wrong, but "merely clarified the manners in which it could be proven." DeLane v. City of Newark, 778 A.2d 511, 519 (N.J.Sup.Ct. App. Div. 2001). See also, Crippen v. Central Jersey Concrete Pipe Co., 823 A.2d 789, 795-96 (N.J. 2003);Tomeo v. Thomas Whitesell Construction Co., Inc., 823 A.2d 769, 774-75 (N.J. 2003); Laidlow, 790 A.2d at 892; Mabee, 720 A.2d at 349.
The Court in Hambsch v. Harrsch, 606 A.2d 879 (N.J.Super.Ct. Law Div. 1991) was required to look at both the workers' compensation cases and insurance coverage cases in determining whether the acts involves were intentional. Id. at 885. That case, however, can be distinguished based on both the type of policy involved, homeowner's policy, and the language of the exclusion, excluding bodily injury that is "expected or intended by the insured." N.J. Mfrs. Ins. Co., 670 A.2d at 1074.
Plaintiff has failed to demonstrate that the actions of the Defendants can be intentional under the Workers' Compensation Act, while not falling within the policy exclusion in this case. Therefore, Zurich is not required to cover losses caused by Defendant Strand or its employees in this case, because Plaintiff's recovery will be dependent upon proving that Strand or its employees "intentionally caused" Plaintiff's bodily injury, and such a claim is excluded from coverage under Zurich's policy of insurance.
III. CONCLUSION
For the reasons discussed above, the unopposed motions for summary judgment of Defendant Maleh and Third-party Defendants Adamar and Aztar will be granted. Intervener Zurich's motion for summary judgment will be denied in part and granted in part.
The accompanying Order is entered.