Fireman's Fund Ins. Co. v. Imbesi

Fireman's Fund Ins. Co. v. Imbesi

Opinion

 [**737]  [EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]

The opinion of the court was delivered by

KING, P.J.A.D.

 [*542]  This is an insurance coverage dispute involving the employers' liability aspect of workers' compensation and employers' liability policies. In the underlying litigation, Sally James sued her former employers, Click Corporation of America, Inc. (Click) and North American Beverage Company (North American), and their principal [***2]  and her former supervisor, John C. Imbesi (Imbesi). (None of the parties have sought to pursue this litigation anonymously. In view of the subject matter, we use a pseudonym, Sally James, for the claimant-appellant only.) She alleged, among other things, sexual harassment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12. She claimed both compensatory and punitive damages. The case settled before trial.

 [*543]  Under the terms of the settlement, a sum of money, $ 1 million, was paid and a consent judgment was entered in James's favor on her LAD claims, and her claims for negligent transmission of venereal herpes and negligent infliction of emotional distress. The remaining claims were dismissed with prejudice. The entire settlement, $ 4.15 million, ostensibly represented James's compensatory damages. No portion was attributed to punitive damages.

Imbesi, Click, and North American paid James $ 700,000, and assigned to her their rights to prosecute and recover from the non-settling insurers. An additional $ 300,000 was paid by American Motorists Insurance Company (American Motorists), which had provided Click and North American with [***3]  commercial general liability and excess liability insurance, and Lumbermens Mutual Casualty Insurance Company (Lumbermens), which had provided Click and North American with workers' compensation and employers' liability insurance during fourteen months of James's term of employment. American Motorists and Lumbermens are part of the Kemper group of insurance companies. The parties sometimes collectively refer to American Motorists and Lumbermens as "Kemper." We refer separately to the companies because their interests are somewhat different.

The non-settling insurance companies were: (1) Fireman's Fund Insurance Company and Fireman's Fund Indemnity Corporation (Fireman's), which had provided homeowners' insurance to Imbesi; and (2) Harleysville Mutual Insurance Company (Harleysville), which had provided commercial general liability, excess liability, and workers' compensation and employers' liability insurance to Click and North American during a five-month portion of James's employment. Both Fireman's and Harleysville denied coverage for James's claims. They did not participate in negotiating the settlement.

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