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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/5/1996
e Star Insurance Company, Ltd. v. Deal, 474 F.2d 1216 (8th Cir. 1973); Spain v. Travelers Insurance Company, 332 So. 2d 827 (La. 1976); I-L Logging Co. v. Manufacturers & Wholesalers Ind. Exch., 273 P.2d 212, reh'g denied, 275 P.2d 226 (Or. 1954); but see Federal Rice Drug Co. v. Queen Insurance Co. of America, 463 F.2d 626 (3rd Cir. 1972)(refusing to limit the scope of an exclusion similar to exclusion (j) herein, to apply to workers' compensation cases only). However, exclusion (j) fails to reference workers' compensation, stating only that coverage would not be provided for bodily injury "arising out of and in the course of [ ] employment by the insured." We find persuasive that exclusion (i) specifically references liability for injuries covered under workers' compensation, while exclusion (j) does not. Contrary to the court in Save Mart, we find no ambiguity in the policy exclusion (j). A reading of exclusions (i) and (j) in tandem reveals an exclusion of liability for bodily injuries covered under workers' compensation law pursuant to exclusion (i) and a similar exclusion for all other bodily injuries arising out of and in the course of employment by insured pursuant to exclusion (j), with the exception of liability assumed by the insured under an incidental contract for those bodily injuries. Accordingly, we find that bodily injury exclusion (j) prohibits liability for bodily injuries (assuming that such injuries were alleged in the underlying suits) arising out of and in the course of employment with plaintiff.
Hence, the trial court erroneously found that defendant Fireman's Fund's policies provided coverage for the Price EEOC complaint, the Price lawsuit, the Overcash /class action, the Wilson suit and the EEOC sex class investigation. However, as the Rosenthal suit does not arise out of and in the course of his employment with plaintiff--Mr. Rosenthal's employer-company was bought by plaintiff and as a consequence, Mr. Rosenthal was informed thereafter that plaintiff would no longer retain his services--this exclusion does not prohibit coverage for his underlying employment discrimination action. We must, therefore, now inquire whether Mr. Rosenthal's suit alleges "bodily injuries" within the meaning of defendant Fireman's Fund's "Comprehensive General Liability Insurance" coverage.
The Rosenthal complaint alleged that as a result of plaintiff's actions, he "became tense, nervous, irritable, suffered immense mental and emotional anguish and distress, and anxiety; . . . has become unable to enjoy his life, family and friends, and has been forced to endure tremendous embarrassment which has placed him under great emotional stress and strain which will ultimately decrease . . . [Mr. Rosenthal's] life expectancy . . . ."
The courts of this jurisdiction have recognized the torts of negligent infliction of emotional distress and intentional infliction of emotional distress as actions for bodily injury . See Johnson v. Ruark Obstetrics, 327 N.C. 283, 292, 395 S.E.2d 85, 90 (reiterating that "'the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed, the sufferings of each frequently, if not usually, act reciprocally on the other.'"), reh'g denied, 327 N.C. 544, 399 S.E.2d 133 (1990).
In order to prevail in an action for negligent infliction of emotional distress, a plaintiff must show that "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as "mental anguish"), and (3) the conduct did in fact cause the plaintiff severe emotional distress." Id.
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