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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/5/1996
in to claims for personal injury, see Goodman v. Lukens Steel Co., 482 U.S. 656, 661,96 L. Ed. 2d 572 (1987); Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254 (1985); see also Redfield v. Insurance Co. of North America, 940 F.2d 542 (9th Cir. 1991)(finding that discrimination damages awarded to a terminated employee are tort-type recovery for personal injuries that are excludable from gross income for purposes of federal income tax), we are also cognizant of several courts' decisions that hold that the definitions of a term, when specifically defined in a policy, will govern in a subsequent action. See Liberty Bank of Montana v. Travelers Idem. Co., 870 F.2d 1504 (9th Cir. 1989)(finding that the policy specifically provided coverage only for those claims which arose out of an enumerated tort); United Pacific Insurance Co. v. First Interstate Bancsystems of Montana, 690 F. Supp. 917 (D. Mont. 1988)(referencing Aetna Cas. & Sur. Co. v. First Sec. Bank of Bozeman, 662 F. Supp. 1126 (D. Mont. 1987), and finding that the underlying damages did not fall within the specific definitions of bodily injury or property damage contained in the policy); see also Jefferson-Pilot Fire & Cas. v. Sunbelt Beer, 839 F. Supp. 376 (D.S.C. 1993) (stating that what is not plainly included within the enumerated torts is by definition excluded). In this case, personal injury is defined in the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman's Fund's policies to include,
1. False arrest, detention, 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,
(b) or in violation of an individual's right of privacy . . . .
We must now determine, whether the underlying actions fall within the "personal injury" definition found in the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman's Fund's policies. This is a case of first impression in the state of North Carolina, and therefore, we seek guidance from courts of other jurisdictions which have addressed this same issue. In Aetna, 662 F. Supp. 1126, a discharged bank employee alleged claims for breach of the implied covenant of good faith and fair dealing, attendant contracts of employment, and for wrongful termination. She sought punitive damages and damages for lost wages, diminished earning capacity, harm to her reputation, and emotional distress. Aetna brought a declaratory action to discern its liability to provide coverage for damages sought by the discharged bank employee. The insuring clause for personal injury provided that the company would defend and indemnify the insured for all sums which the insured became legally obligated to pay as a result of personal injury. Id. "Personal injury" was defined as "injury arising out of one or more of the following offenses committed during the policy period." Pertinently, "(3) a publication or utterance (a) of a libel or slander or other defamatory or disparaging material . . . ." Id. at 1131. Aetna contended that because there were no allegations of libel, slander, defamation or disparagement in the complaint, there was no coverage under the policy. The employer-bank, however, contended that the employee's allegations that another bank employee had told her that she was fired could constitute defamatory or disparaging material; therefore, the language of the endorsement was ambiguous. Id. The Montana District Court held that the "personal injury" endorsement "applied only to claims actually arising out of the enumerated torts [in the p
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