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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/5/1996
underlying actions were covered under defendant Fireman's Fund's "Broad Form Comprehensive General Liability Endorsement G222," included in the "Comprehensive General Liability Insurance" section of the policies as a "bodily injury." "Bodily injury" as defined in the "Definitions" section of the policies means "bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom . . . ."
The Rosenthal complaint contained allegations that plaintiff had negligently or intentionally inflicted emotional distress upon Mr. Rosenthal; and plaintiff argues that these allegations of negligent and intentional infliction of emotional distress fall within the "bodily injury " coverage of the policies as North Carolina courts and New York courts (where Mr. Rosenthal instituted his action) have recognized that damages from those two torts (especially decreased life expectancy) are "bodily injuries." Conversely, in the cases of the Price EEOC complaint, the Price lawsuit, the Overcash /class action, the Wilson suit and the EEOC sex class investigation, the record is devoid of any allegations of "bodily injury" within the definition of defendant Fireman's Fund's policies.
It is not necessary, however, that we make a final determination of this question of "bodily injury " coverage for the Rosenthal suit, if coverage is excluded for the underlying employment discrimination actions. The "Exclusions" section of the Comprehensive General Liability Insurance section of defendant Fireman's Fund's policies provides that,
This insurance does not apply:
(i) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;
(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract . . . .
Plaintiff argues that exclusion (j), as well as (i) applies only to workers' compensation cases. Plaintiff cites Save Mart Supermarkets v. Underwriters, 843 F. Supp. 597 (N.D. Cal. 1994), in which the court decided that an exclusion clause much like clause (j) above, was ambiguous and open to more than one interpretation. Accordingly, the court found that there were genuine issues of material fact surrounding its interpretation and thus, summary judgment was inappropriate as to coverage based on the "employee exception." Id. at 604.
Defendant, however, cites Omark Industries v. Safeco Ins. Co. of America, 590 F. Supp. 114 (D. Or. 1984), in support of its argument to the contrary. In Omark, the court construed a provision similar to exclusion (j) in defendant Fireman's Fund's policies. In that case, the court distinguished the line of cases that had found various policies' exclusions were applicable to workers' compensation only--finding that those policies' exclusions had specifically mentioned workers' compensation. In Omark, since there was no such mention in the policy therein, the court declined to limit the exclusion to workers' compensation and found that the sex discrimination case was excluded from coverage. Id. Accord, Sunbelt Beer, 839 F. Supp. 376.
As in the line of cases cited in Omark, the policy exclusion (i) herein specifically mentions and excludes liability for any bodily injury for which the insured or any carrier would be liable under workers' compensation law. See Eagl
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