Kiara K. Hartwell

In the first of these two cases (No. A-1702-21), the Appellate Division affirmed an order granting summary judgment to Bravo Pack (Bravo), dismissing all claims, cross-claims, and third party claims against Bravo. 

In reviewing the summary judgment record in a light more favorable to the plaintiff, the plaintiff was hired by Bravo and began working on March 18, 2019. When he arrived, the manager directed another employee, Alexander Gongora, to train him. Gongora trained other employees before, but received no formal instructions nor was provided with any operating manuals. On that day, Gongora was working on a Kraft bubble mailer machine, which was noted to routinely jam from 10 to 15 times a day. The manager testified that employees were instructed on how to clear the jam, but acknowledged Gongora’s method to remove the plastic guard cleared the jams more quickly. The manager advised Gongora not to remove the guard, but was aware he did not always listen.

The plaintiff testified Gongora provided minimal instructions regarding the Kraft machine. It jammed several times in the morning, which Gongora fixed. However, it jammed for the first time at the discharge end, and Gongora left the plaintiff to remove it. The accident occurred when the plaintiff attempted to remove the jam and the blade caught his left hand, partially amputating three of his fingers.

OSHA performed an investigation and cited Bravo for multiple violations. In August 2019, the plaintiff sued Bravo, alleging his injuries occurred due to Bravo’s intentional conduct and, thus, his claim was not limited to workers’ compensation. He submitted an expert report by a professional engineer, who opined the plaintiff was exposure to a “high risk level” of imminent major injury and removal of the guard created substantial certainty of an accident. He relied on a risk assessment program called Designsafe in forming his opinions.

Bravo filed an answer and later asserted a third-party complaint against its insurer, employers Preferred Insurance Company. In August 2021, Bravo moved for summary judgment, arguing the exclusive remedy provision of the Workers’ Compensation Act barred the plaintiff’s claims. The judge heard arguments and in November 2021, issued an order and written opinion granting summary judgment in favor of Bravo, thus dismissing all claims against Bravo with prejudice. The judge determined the plaintiff did not have evidence to support a finding of substantial certainty of injury nor that this accident would fall into the narrow exception for injuries caused by an employer’s intentional wrong. The plaintiff argued there was sufficient evidence of intentional wrong, that the judge erred in finding no reasonable jury would find his accident was substantially certain, and that the judge erred in finding his proofs did not prove an intentional wrong. 

The Appellate Division found the judge’s analysis in his written opinion were well reasoned and affirmed. Specifically, the Appellate Division found Bravo’s conduct did not rise to the standard of an intentional wrong or substantial certainty of an injury.

In the second of these matters (No. A-1731-21), the Appellate Division affirmed the portion of an August 12, 2021, order granting partial summary judgment to employers Preferred Insurance Company (EPIC) as the insurance policy was clear in excluding coverage for intentional wrong claims. There was also a cross-appeal by EPIC, but it was dismissed as moot as this portion was settled between the parties.

As noted above, the plaintiff was injured in March 2019 and sued Bravo. Bravo filed a third party complaint against EPIC, alleging EPIC improperly denied coverage, and sought a declaration. The relevant portion of the insurance policy was quoted, noting there was a specific exclusion for intentional wrongs. Both parties cross-moved for summary judgment, with EPIC arguing it had no duty per the policy and Bravo contending the exclusion was invalid, ambiguous, or contrary to Bravo’s reasonable expectations.

The judge granted and denied, in part, EPIC’s motion for summary judgment and Bravo’s cross-motion for summary judgment. The trial court found EPIC did not have to provide coverage for the intentional wrong claims, but did have to for the negligence, gross negligence, or reckless conduct claims. Bravo appealed the portion granting summary judgment to EPIC based on the exclusion, and EPIC cross-appealed the portion requiring them to pay defense costs for the negligence, etc. claims.

On appeal, Bravo argued the trial court erred in finding the exclusion was unambiguous and, even if it was, it ran contrary to the public policy of the Workers’ Compensation Act. The Appellate Division rejected these arguments, noting the exclusion was clear and that the Workers’ Compensation Act was not inconsistent with an employer’s liability policy that excluded coverage for intentional wrongs. Bravo and EPIC settled the portion of EPIC’s cross-appeal and as such, it was rendered moot.
 

 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}