.

Defense Digest

A Carrier May Have No Duty to Defend an Intentional Injury Claim Against an Employer Arising from a New Jersey Workers’ Compensation Case

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

by Robert J. Fitzgerald

Key Points:

  • A workers’ compensation insurance carrier normally does not have a duty to pay benefits for an intentional injury claim.
  • Depending on the policy language, a carrier may not be obligated to defend against an intentional injury claim, regardless of its merit.
  • An insurance policy exclusion against owing a duty to defend an intentional injury claim is not against public policy.

The New Jersey Supreme Court has affirmed lower court decisions regarding an insurance carrier’s obligations with regard to defending intentional injury claims in workers’ compensation cases. 

In Dionicio Rodriguez v. Shelbourne Spring, LLC, 259 N.J. 385 (Dec. 12, 2024), SIR Electric, an electrical contractor, employed Dionicio Rodriguez. The Hartford had issued a Workers’ Compensation and Employers’ Liability Policy to SIR. Part One of the policy provided “benefits” under workers’ compensation law for New Jersey. Part Two of the policy provided employers’ liability insurance for “damages because of bodily injury,” but it excluded from coverage bodily injury intentionally caused by SIR. 

After suffering compensable work injuries while working for SIR, Rodriguez received New Jersey workers’ compensation benefits from Hartford. Rodriguez also filed a personal injury complaint against SIR, alleging negligence, gross negligence, and reckless behavior by SIR. SIR requested that Hartford also defend the personal injury complaint. 

Hartford denied the request to the defend the personal injury complaint, determining it was not required to defend the intentional injury claims as they were essentially all intentional injury claims. SIR then filed a third-party complaint against Hartford, claiming that, while Rodriguez’s complaint included allegations of intentional wrongdoing, it also included specific allegations of “gross negligence” and “simple negligence,” which SIR contended were covered by the policy. After several motions and appeals, the New Jersey Appellate Division affirmed the orders dismissing SIR’s third-party complaint against Hartford, denying SIR’s cross-motion for summary judgment, and denying SIR’s motion to amend its third-party complaint. SIR then appealed to the New Jersey Supreme Court. 
    
The Supreme Court began its analysis by reviewing some long-standing principles. A carrier’s duty to defend is broader than its duty to indemnify. Danek v. Hommer, 100 A.2d 198, 204 (App. Div. 1953). A duty to defend “comes into being when the complaint states a claim constituting a risk insured against,” regardless of the claim’s likelihood of success. Voorhees v. Preferred Mut. Ins. Co., 607 A.2d 1255, 1259 (N.J. 1992). The duty to defend will arise even if “the claims are poorly developed and almost sure to fail,” id., so long as they “comprehend an injury which may be within the policy,” Abouzaid v. Mansard Gardens Assocs. LLC, 23 A.3d 338, 346 (N.J. 2011). But a carrier has no duty to defend against a claim, “which measured by the pleadings, even if successful, would not be within the policy coverage.” Danek. Courts cannot “engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased.” AC Ocean Walk, LLC v. Am. Guarantee & Liab. Ins. Co., 307 A.3d 1174, 1184 (N.J. 2024) (quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 948 A.2d 1285, 1289 (N.J. 2008)).
    
In a workers’ compensation claim in New Jersey, an injured employee’s recovery is limited to medical, disability, and permanency benefits. The only exception to the “exclusivity bar” or “workers’ compensation bar” is for injuries caused by “intentional wrongs,” for which an employee may still seek redress under common law causes of action. Schmidt v. Smith, 713 A.2d 1014, 1016 (N.J. 1998). In Laidlow v. Hariton Mach. Co., Inc., 790 A.2d 884, 897-899 (N.J. 2002), the court clarified the test to determine when an employer’s conduct rises to the level of an “intentional wrong” under N.J.S.A. 34:15-8. The court held: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. The “substantial certainty” test is still a high standard to meet: to avoid allowing employees to circumvent the Act, courts “must demand a virtual certainty” before employees can proceed under the intentional wrong exception to sue their employer in tort. Van Dunk v. Reckson Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012).
    
Here, the Supreme Court noted that the trial judge concluded the entirety of Rodriguez’s allegations amounted to a Laidlow claim. The court disagreed and concluded the negligence-based claims were different from Rodriguez’s intent-based Laidlow claims. The court then went into a detailed review of Rodriguez’s complaint, which had included more than 70 individual counts. 

The court next reviewed Part One of the Hartford policy, which covered workers’ compensation claims. The court noted that Part One excluded money damages for negligence-based tort claims as they do not fall under the policy language, “benefits . . . required by a workers’ compensation law,” which, instead, include recovery of medical benefits under N.J.S.A. 34:15-15; death benefits for dependents under N.J.S.A. 34:15-13; and temporary disability benefits, permanent total benefits, or permanent partial benefits under N.J.S.A. 34:15-12(a) to (c), regardless of fault. Because money damages based on tort claims are not “benefits” and, thus, are not a covered risk, the court found that Hartford had no duty under Part One to defend SIR against Rodriguez’s claims seeking such damages. Rodriguez’s personal injury lawsuit did not seek benefits as defined by the Act; instead, it sought money damages as compensation for his workplace injuries. Rodriguez already recovered those benefits available under Part One of the Hartford policy for his injury, and Hartford satisfied its contractual obligation to SIR by providing Rodriguez with those workers’ compensation benefits separate from this action. Therefore, Part One of the Hartford Policy imposed no duty to defend SIR against any of Rodriguez’s claims.

The court then addressed Part Two of the policy that provided employers’ liability insurance, which is intended to serve as a gap-filler providing protection to the employer in those situations where the employee has a right to bring a tort action despite provisions of the workers’ compensation statute. This would include claims against the employer for sexual harassment or discrimination. After examining the policy language and exclusions in Part Two, the court also found no obligation to defend in this case. 

The C4 exclusion thus aligns with the purpose of requiring employers to carry both workers’ compensation insurance and employers’ liability insurance: it is a logical reflection of the gap-filling purpose of employers’ liability insurance because it excludes from coverage under Part Two claims that are already covered under Part One. There was no gap to be filled here for the negligence, gross negligence, and recklessness claims against SIR because Part One already provided the required workers’ compensation coverage—the exclusive remedy available—for those claims. See Rodriguez, 327 A.3d at 145 (citations omitted).

Turning to Rodriguez’s claims of intentional wrongdoing, Part Two imposed no duty on Hartford to defend SIR because those claims were not covered by the Hartford policy. The C5 exclusion specifically excluded from insurance coverage any claims for “[b]odily injury intentionally caused or aggravated by [SIR].” The EII exclusion elaborated on C5 by excluding “all intentional wrongs within the exception allowed by N.J.S.A. 34:15-8 including . . . bodily injury caused or aggravated by an intentional wrong . . . which is substantially certain to result in injury.” The Laidlow claims of intentional wrongdoing in the complaint were expressly excluded under the plain language of the Part Two exclusions as “intentionally caused or aggravated” by SIR under the C5 exclusion and as “substantially certain to result in injury” under the EII exclusion endorsement. Because the claims were not covered by the Hartford policy, they could not trigger a duty to defend on the part of the insurer. In sum, none of Rodriguez’s claims—whether for negligent, grossly negligent, or recklessly indifferent conduct or for intentional wrongdoing—fell within the coverage established in either Part One or Part Two of the Hartford policy. Rodriguez, 327 A.3d at 145-146.

The court finally denied SIR’s request to amend its third-part complaint against Hartford, indicating it would be futile. An amendment is futile “when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.” Id. at 146 (citation omitted). 

At oral argument, SIR acknowledged that it filed its motion to amend only after the trial judge found Hartford did not owe it a duty to defend under Part Two. Contrary to SIR’s contention, the EII exclusion did not violate public policy. Amending the pleading to bring that argument would, therefore, have been futile. Exclusions from coverage for intentional acts are common. The New Jersey Supreme Court has consistently reiterated the principle that “[p]olicy provisions that exclude coverage resulting from intentional wrongful acts are ‘common,’ are ‘accepted as valid limitations’ and are consistent with public policy.” Id. (citing Harleysville Ins. Cos. v. Garitta, 785 A.2d 913, 917 (N.J. 2001)). 

While the Supreme Court’s decision now affirms when a carrier has a duty to defend, it also reinforces the employers’ defense against intentional injury claims. Intentional injury claims make up a large share of litigation that is tangentially related to workers’ compensation. There are no shortages of claims that attempt to pierce the workers’ compensation bar, while the courts have continuously upheld the high bar that is required to overcome the bar. 

While the impact of this decision remains to be seen, it would seem that it will increase litigation costs for employers since they will now have to pay for their own defense of intentional injury claims, despite their chances of success, as this court here acknowledges. 

If you have questions about how defend these claims, or if you have insufficient insurance coverage, reach out to your legal counsel now. Once a claim occurs, it may be too late.

*Bob is the managing attorney of the Workers’ Compensation Department in our Mount Laurel, New Jersey, office. 



 

Defense Digest, Vol. 31, No. 1, March 2025, 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Casual Care, Serious Consequences: How Informal Prescribing Can Trigger Medical Board Scrutiny

The lesson for health care practitioners is that regular review of the regulatory requirements can ensure compliance and that casual prescribing may be in violation of state regulations if the necessary components are not met. Consider the following scenario: in December 2025, a medical provider renewed a prescription for a long-standing telemedicine patient receiving a Schedule II controlled dangerous substance. This was not a violation of the New Jersey Administrative Code. Another provider doing the same action for an equally situated patient in March 2026 would be in violation. The casual prescriber who is not aware of newer regulatory requirements may have a more difficult time responding to a medical board complaint. Medicine is a highly-regulated helping profession. Without addressing the merits of this regulatory burden, the practice of medicine continues to see drastic changes impacting the everyday life of patient and provider. Telemedicine, COVID-19, and other advances and roadblocks, present a challenge to those saving lives while attempting to comply with the rules of practice. Physicians often discover—through real cases and the lens of regulatory expectations—that even well-intentioned informal help can be reinterpreted as stepping outside mandated professional boundaries, and seemingly harmless actions can be construed as deviations from required practice standards specifically outlined in Title 13, Chapter 35, Subchapters 7.1A of the New Jersey Administrative Code. Title 45, "Professions and Occupations," of the New Jersey code governs the practice of medicine, nursing, optometry, pharmacy, and many other professional occupations. Section 9 specifically addresses the state board of medical examiners and allows for the creation of rules and regulations in Section 45:9-5.3. These regulations can be found in the New Jersey Administrative Code Title 13, Chapter 35. While broad in scope, Chapter 35 contains a subchapter dedicated to the administration and dispensing of prescription drugs. Such knowledge will arm physicians with the tools they need to prevent a negative outcome if a medical board complaint is filed. Likewise, attorneys must be familiar with these regulatory requirements when advising and defending providers. In New Jersey, N.J.A.C. Section 13:35-7.1A(a) requires that a practitioner conduct an examination and appropriately document the same within the medical record before dispensing drugs or issuing prescriptions. The examination must include an "appropriate history and physical examination," a diagnosis based upon the examination and any testing consistent with good medical care, the formulation of a therapeutic plan discussed with the patient, and the availability of appropriate follow-up care. There are only six exceptions to this requirement: In admission orders for a newly hospitalized patient For a patient of another physician for whom the practitioner is taking calls For continuation medications on a short-term basis for a new patient prior to the patient's first appointment For an established patient who, based on sound medical practice, the physician believes does not require a new examination before issuing a new prescription For a patient examined by a healthcare professional who is in collaborative practice with the practitioner When treatment is provided by a practitioner for an emergency medical condition Emergencies are also limited to situations where someone's health is in serious jeopardy, there is serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. During the COVID-19 pandemic, then New Jersey Governor Phil Murphy issued an executive order declaring a public health emergency and a state of emergency that allowed authorized prescribers to prescribe Schedule II controlled dangerous substances via telemedicine. The order was terminated when he left office earlier this year and the state reverted to the requirement of an initial in-person examination and quarterly in-person visits. With this return to prior regulatory requirements, practitioners subject to the jurisdiction of the board of medical examiners may benefit from a refresher on the regulatory limitations on their practice now that the pandemic-era flexibilities have ended. This new requirement may create confusion for prescribers and lead to casual prescribing of medication in violation of the regulations, even in the setting of recurrent telemedicine appointments as noted in the example above. Casual prescribing can take many forms: filling a prescription request from a friend or family member without an examination or contemporary medical record; using telemedicine to expand your practice without proper in-person appointments or documentation in the medical record; failing to ensure appropriate follow-up care for a "one time" prescription; etc. Although not all board complaints end in a publicly available opinion, serious deviations from regulatory requirements can shine a light on practices that will require action by the board if a complaint is received. Consider the following cases: In October 2025, the board issued a final consent order in an administrative action where a doctor provided opioids without examination and his license was permanently revoked. In re Robert Dela Gente, D.O., N.J. State Bd. of Med. Exam'rs Oct. 21, 2025. Criminal charges were filed (though that is not always the case). In a September 2025 consent order, a physician was reprimanded for "prescribing opioids several months in advance without the proper patient follow-up..." and explained that they did so for "patients who can not pay for multiple visits to refill medications." In re A/an E. Schultz, M.D., N.J. State Bd. of Med. Exam'rs Sept. 25, 2025. Another physician was suspended and placed on probation in a consent order for prescribing three patients the weight-loss medication "Ozempic" via text messages through a website called "Push Health" and without any further communication with the patients or taking a medical history. In re Laura E. Purdy, M.D., N.J. State Bd. of Med. Exam'rs Aug. 29, 2025. A June 2025 interim consent order required a "full evaluation and assessment of [a physician's] general knowledge and skill, with specific emphasis on his knowledge of and ability to safely prescribe [controlled dangerous substances]" due to his failure to review a patient's prior medical history and medical record, assess and review the prescription monitoring program before prescribing CDS, and conduct random urine screens on a patient that tested positive for CDS upon admission to his practice because "he trusted the patient." In re Donald Oh, M.D., N.J. State Bd. of Med. Exam'rs June 2, 2025. Each of these examples demonstrate a failure to follow strict procedure regardless of the intention. Failing to follow procedure secondary to good intentions, such as considering a patient's financial constraints, trust in the patient, or utilizing a new telemedicine service platform, will not be a defense to a board complaint. Especially when practicing via telemedicine, practitioners must ensure they are adhering to the appropriate regulatory standard. A provider who calls in a prescription for a traveling friend or family member or agrees to prescribe medication for individuals using the newest phone app will have a hard time meeting the requirements of N.J.A.C. Section 13:35-7.1A. Even if a history was taken, a "therapeutic plan" was created, and "follow up care" was provided, the prescriber would still not be in compliance with the regulation without an in-person examination. In our opening hypothetical, the prescriber's behavior did not change between December and March; however, the legal shift in the regulatory landscape made once acceptable behavior a violation as a required examination did not occur. When complaints are made with regard to informal prescribing, the board has discretion to employ measures to encourage compliance in lieu of formal proceedings such as a private, written warning; suspending fines subject to continuing compliance; medical or professional treatment as may be necessary; medical or diagnostic testing and monitoring; skills assessment; corrective training; participation in outreach programming; or contribution to the consumer fraud protection fund. The lesson for health care practitioners is that regular review of the regulatory requirements can ensure compliance and that casual prescribing may be in violation of state regulations if the necessary components are not met. Even compliant providers who had not conducted an in-person examination for telemedicine patients during the COVID-19 emergency would be in violation of the regulations as of January 2026 for the same practice. Practitioners should be diligent in adhering to the prescribing rules to avoid sanctions related to casual care. Likewise, attorneys advising or defending practitioners before the board must be aware of the in-person examination requirements for prescribing in New Jersey whether the care in question took place in-person or in a telemedicine setting. Reprinted with permission from the April 22, 2026 issue of the New Jersey Law Journal. ©2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

SIDEBAR: News and Happenings

We are pleased to share that attorneys from our health care team have been selected to the 2026  New Jersey and Pennsylvania Super Lawyers and Rising Stars lists. Their dedication to clients and commitment to high-quality work continues to strengthen our firm! Please join us in congratulating: NJ Super Lawyers: Robert T. Evers and Justin F. Johnson NJ Super Lawyer Rising Stars: Nataliana A. Guida  2026 Pennsylvania Super Lawyers: Alyson J. Kirleis and Gary M. Samms 2026 Pennsylvania Rising Stars: Holli K. Archer and Daniel Dolente Victoria Scanlon (Scranton) was a faculty presenter at the 2026 American Roentgen Ray Society (ARRS) Annual Meeting in Pittsburgh. She participated in the “Resident Symposium: Producing Quality Reports,” focusing her presentation on “How to Write a Great Report: Malpractice Lawyer’s Perspective.” Vicky, the only attorney presenter for this two-hour segment, was joined by several health care professionals including diagnostic radiologists, an interventional radiologist, an internal medicine physician, and a radiologist turned AI entrepreneur expert.  Matthew Keris (Scranton), President of the Pennsylvania Association for Health Care Risk Management (PAHCRM) and shareholder in our Scranton Health Care Department, presented an important and timely session titled “Keynote Address: A Conversation with RaDonda Vaught on Criminalizing Errors” at PAHCRM’s Annual Meeting in April. RaDonda is a former Tennessee nurse widely known for being criminally convicted in 2022 of negligent homicide and gross neglect after a 2017 fatal medication error at Vanderbilt University Medical Center. Her case gained national attention because she was criminally prosecuted rather than just facing licensing board action, sparking debate over blaming individual nurses for systemic healthcare failures. Matt and RaDonda’s conversation explored one of the most consequential issues in health care risk management today—how systems respond to human error, and what it means for patient safety, accountability, and the professionals who serve on the front lines. Gary Samms was a panelist for a podcast hosted by the Medical Liability Monitor, “From Outliers to Pattern: The Increasing Predictability of Megaverdicts in the Med-Mal Industry – and How to Reduce the Likelihood of Getting Hit with One.” Gary discussed the changing megaverdict landscape and why “outlier” verdicts are becoming structural, in addition to how plaintiffs turn weaknesses into megaverdicts (including building emotional narrative and jury psychology). Thank you to our clients who joined us for our Trends in Health Care & Health Law seminar on May 14. Led by our Health Care Department Director and Assistant Director, Robin Snyder and Donna Modestine, the session explored key issues that are currently shaping outcomes in health care litigation. We owe a debt of gratitude to our esteemed guest speaker, Mary Ellen Nepps, Esq., Senior Counsel, University of Pennsylvania, who presented “Medical Malpractice Litigation: Driving Another Health Care Crisis in Pennsylvania.” And special thanks to our attorneys who presented and shared their insights, including John J. Hare and Holli Archer who discussed “Highlights in PA Medical Malpractice Law;” David Drake for his presentation, “From Claims to Courtroom: Key Trends in NJ Medical Malpractice Litigation;” and Matthew Keris with an “Update on Health Care Tech Discovery.” Thank you to all of our clients for entrusting us with your health care litigation. We are proud to partner with you as we defend your interests and navigate legal landscapes together.