NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1614-19 OLVIN LEONEL RODRIGUEZ- ORTIZ, Plaintiff, v. INTERSTATE RACKING & SHELVING, II, INC., LIT/GREEK RT. 130, LLC, MEDICA, and TITAN RACK & SHELVING, LLC, Defendants, and INTERSTATE RACKING & SHELVING, II, INC., Plaintiff-Appellant, v. BERKSHIRE HATHAWAY, INC., GUARD INSURANCE COMPANY, a/k/a AMGUARD INSURANCE COMPANY, and BERKSHIRE HATHAWAY GUARD, a/k/a BERKSHIRE HATHAWAY GUARD INSURANCE COMPANY, Defendants-Respondents. _____________________________ Argued January 27, 2021 – Decided September 3, 2021 Before Judges Ostrer, Accurso, and Enright. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-1477-15 and L-1563-18. H. Alton Neff argued the cause for appellant. Robert M. Wolf argued the cause for respondent AmGuard Insurance Company (Finazzo Cossolini O'Leary Meola & Hager, LLC, attorneys; Jeremiah O'Leary and Robert M. Wolf, on the brief). PER CURIAM Interstate Racking & Shelving, II, Inc. (Interstate) contends that its workers' compensation and employer's liability insurer, AmGuard Insurance Company (AmGuard), should have provided it a defense to a tort suit brought by an Interstate employee who was injured on the job. The employee was already receiving workers' compensation benefits. His lawsuit sought additional damages based on common law claims that Interstate (and others) acted intentionally as well as negligently, recklessly and carelessly. Eventually, A-1614-19 2 Interstate sued AmGuard for a defense. While Interstate's claim was pending, the court dismissed the employee's underlying suit — which Interstate defended with its own attorney — because he could not prove an intentional wrong to surmount the Workers' Compensation Act's exclusivity provision, N.J.S.A. 34:15-8. Later, on cross-motions for summary judgment in the coverage action, the trial court dismissed Interstate's complaint seeking defense costs and denied Interstate's motion for a declaration of coverage. The court held that exclusions in the employer's liability part of Interstate's policy barred its claim. On appeal, Interstate challenges the trial court's interpretation of the policy. Interstate also argues that, to the extent the policy does bar recovery, it is void because it limits the scope of statutorily mandated coverage. Interpreting the employer's liability policy anew, we conclude it excludes coverage for Interstate's defense costs. However, AmGuard concedes that the workers' compensation portion of its policy afforded coverage of defense costs of negligence-based claims. Therefore, we reverse in part and remand for a determination whether, and to what extent, Interstate may recover costs associated with defending the negligence-based claims. A-1614-19 3 I. The facts are largely undisputed. Interstate employee Olvin Rodriguez- Ortiz fell off a warehouse racking system that he was dismantling and suffered serious injuries. He was not wearing a harness or other safety equipment. At the time, AmGuard insured Interstate under a Workers' Compensation and Employer's Liability Policy. Rodriguez-Ortiz filed a petition …
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