Abouzaid v. Mansard Gardens Associates, LLC

Abouzaid v. Mansard Gardens Associates, LLC

Opinion

 [*70]  [**340]   JUSTICE LONG delivered the opinion of the Court.

The question presented on this appeal is whether a Portee ¹ claim that does not allege physical sequelae triggers the duty to defend under a "bodily injury" provision in a commercial general liability insurance policy. In Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165, 607 A.2d 1255 (1992), we held that ] a "bodily injury" provision affords coverage for an emotional distress claim accompanied by physical manifestations. Id. at 169, 607 A.2d 1255. We also required the insurer to defend the complaint for emotional distress, which did not allege physical injury, at least until physical manifestation was disproved or otherwise dropped out of the case. The rationale for the requirement of defense was the existence of a "potentially" covered claim. Id. at 174-75, 607 A.2d 1255. Because a Portee  [***10] claim may, but need not, involve physical sequelae, such a claim is potentially, but not necessarily, covered by a "bodily injury" provision. In such  [*71]  circumstances, the burden of defense must be borne by the insurer until the question of physical injury clearly drops out of the case.

In 2007, defendants, Jack and Sally Pomeranc, d/b/a Mansard Gardens Associates, LLC (Mansard), were the owners of an apartment building on West 23rd Street in Bayonne, New Jersey. At the time, Greater New York Mutual Insurance Company (GNY) was Mansard's insurer under a commercial general liability insurance policy (Policy). The Policy provided, in relevant part:

SECTION I—COVERAGES

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

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