McCarter & English on Duty To Defend Obligation Arises For Portee Claim In New Jersey Even In Absence Of Allegation Of Physical Injury

Jason Alexander and David Thomas   By Jason M. Alexander and David A. Thomas, Associates, McCarter & English, LLP

The Supreme Court of New Jersey in Abouzaid v. Mansard Gardens Associates, LLC, 2011 N.J. Lexis 684 (June 21, 2011) held that a claim filed under Portee v. Jaffee, 84 N.J. 88 (1980) (an allegation of severe emotional distress resulting from the witnessing of death or serious physical injury of a close family member caused by defendant's negligence) triggers a duty to defend under a comprehensive general liability policy even if the Portee complaint fails to allege any bodily injury.  The Court found that such a stressful event would likely include bodily injury or sickness of some sort and, therefore, the Portee claim potentially falls within the grant of bodily injury coverage afforded by the policy.  Accordingly, the Court ruled that the insurer must defend the policyholder facing an inartfully-drafted complaint until the evidence proves that bodily injury did not arise from the emotional distress caused by the tragic event.

Download a free copy of the Lexis unenhanced version of the Abouzaid v. Mansard Gardens Associates, LLC, 2011 N.J. Lexis 684 (June 21, 2011).

Jason M. Alexander is an associate in McCarter & English's insurance coverage practice group. Mr. Alexander's practice focuses on insurance coverage litigation and counseling as well as general litigation. He has represented corporate policyholders in the manufacturing and construction industries in disputes involving insurance coverage for property damage, product liability and asbestos-related bodily injury.

David Thomas is an associate in the Insurance Coverage Group at McCarter & English, LLP. Mr. Thomas' practice involves general litigation, including general commercial matters and the prosecution of insurance coverage claims for losses arising from environmental contamination, asbestos bodily injury, recall of products, loss of business income and corporate mismanagement.

The article is for informational purposes only and is not offered as legal advice as to any particular matter.  No reader should act on the basis of this article without seeking appropriate professional advice as to the particular facts and applicable law involved.

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