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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.9/2/1997
cept that which arises out of any Advertising activities.
The Mission policy by its own terms did not apply "to any liability arising out of the violation of any statute, law, ordinance or regulation prohibiting discrimination or humiliation because of race, creed, colour or national origin[.]"
The definition of personal injury in defendant Fireman's Fund's "Broad Form Comprehensive General Liability Endorsement G222" includes:
(1) False arrest, detention or imprisonment, or malicious prosecution;
(2) wrongful entry or eviction or other invasion of the right of private occupancy;
(3) the publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual's right of privacy . . . .
The Fireman's Fund's policies define "bodily injury ": "'bodily injury' means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom[.]" In our 5 November 1996 opinion, we noted that damages for negligent and intentional infliction of emotional distress fall within the "bodily injury" coverage of defendant Fireman's Fund's policies. Fieldcrest Cannon, Inc. v. Fireman's Fund Insurance Co., 124 N.C. App. 232, 477 S.E.2d 59.
Although Mission's policy definition for personal injury is more broad than the applicable definitions included in defendant Fireman's Fund's policies, the bare allegations of the underlying discrimination actions (with the exception of the Rosenthal suit) include claims of sexual discrimination, retaliatory discharge, and intimidation and harassment, but fail to make any allegations of "bodily injury (including death at any time resulting therefrom), mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, humiliation; also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any Advertising activities[,]" so as to fall within the coverage for "personal injury" in Mission's policy. Significantly, Mr. Rosenthal's claim for negligent infliction of emotional distress may fall within the coverage of Mission's policy. However, this fact alone is not determinative of the propriety of summary judgment for defendant Guaranty.
Mission was an "umbrella," excess coverage carrier; as an "umbrella," excess coverage carrier, Mission could not be liable for the underlying discrimination claims unless and until the primary insurers' limits were paid. Here, the parties had agreed that the discrimination claims would not exceed the $500,000 per occurrence limits of Fireman's Fund's primary insurance. If on remand a jury finds that defendant Fireman's Fund's policies provided coverage for Mr. Rosenthal's claim for negligent infliction of emotional distress, defendant Guaranty is absolved of residual liability by prior agreement of the parties that "the discrimination claims [would] not exceed the $500,000 per occurrence limits of the Fireman's Fund primary insurance[.]" Similarly, if on remand a jury finds that Mr. Rosenthal's claim for negligent infliction of emotional distress is not covered by defendant Fireman's Fund's policies, defendant Guaranty is absolved of liability since the liability (or lack thereof) of both defendants Fireman's Fund and Guaranty is based upon policy language which is essentially the same. In any event, defendant Guaranty has no duty to defend or indemnify the underlying discrimination actions.
In light of our finding in this regard, we need not address defend
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