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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

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Thought Leadership

Coverage Determined, Judgment Paid, Bad Faith Survives: Fourth DCA’s Opinion Highlights the Distinction Between Contractual and Extra-Contractual Damages

In Healthy Food Experts, LLC v. Amguard Ins. Co., No. 4D2025-0181 (4th DCA June 10, 2026), the Fourth District Court of Appeal explained that an insurer’s payment of a judgment in a breach of contract case does not automatically eliminate a later bad faith claim seeking extra-contractual damages. The decision provides guidance on when a first-party bad faith claim may still proceed after a coverage dispute has already been resolved by a judgment. Healthy Food Experts, LLC involved a dispute related to a property damage claim submitted under a commercial insurance policy issued by the insurer following a ceiling collapse at the insured’s restaurant. The insurer denied coverage for the insured’s losses for business personal property and business income, but extended coverage for the food spoilage losses. As a result, the insured filed a breach of contract action and ultimately obtained a jury verdict. The insurer appealed the verdict and, while the appeal was pending, the insured filed a Civil Remedy Notice (CRN) seeking payment for the judgment plus interest. The insurer failed to cure the CRN within the statutory sixty-day cure period, but paid the judgement in full with accrued interest following the appeals court’s per curiam affirmance. Nevertheless, the insured filed a first party bad faith lawsuit claiming to have suffered extra-contractual damages. In response to the bad faith suit, the insurer filed a Motion to Dismiss for failure to state a cause of action, relying on Fridman v. Safeco Insurance Co. of Illinois, 185 So. 3d 1214 (Fla. 2016) stating that damages were fixed by judgment of the breach of contract suit and the insured could not recover additional damages beyond those already awarded. The insurer also argued that the judgment did not exceed the insured’s policy limits, which was a required element of a first party bad faith claim. The trial court dismissed the bad faith action based on Fridman, concluding the insured could not seek any additional damages.  The insured appealed the court’s ruling to the Fourth DCA arguing the trial court’s order conflicts with Florida law and misapplies Fridman, as a contractual damage determination in the underlying suit establishes the “condition precedent to prosecute a first party bad faith action.” Cingari v. First Protective Ins. Co., 377 So. 3d 1169, 1174 (Fla. 4th DCA 2024). Further, the insured argued that the only purpose to the binding language in Fridman is to prevent the re-litigating of the same damages, which in this case are the contractual damages. The insured asserted the damages were not the “same” as they were seeking consequential damages from the insurer’s alleged bad faith. The Fourth District emphasized in its ruling that a first party bad faith claim is not ripe for litigation until there has been the following: a determination of the insurer’s liability for coverage; a determination of the extent of the insured’s contractual damages, and the required civil remedy notice is filed pursuant to §624.155(3)(a).  Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218, 221 (Fla. 5th DCA 2018) The court concluded that the necessary conditions were satisfied as the jury verdict determined both coverage and the extent of the insured’s contractual damages, and the insured properly filed a civil remedy notice, so the bad faith claim was ripe for litigation. The Fourth DCA further explained the insured could not seek contractual damages in its bad faith action, which was previously litigated in its breach of contract suit. However, the court determined the insured could seek “extra-contractual damages,” which were not recoverable in the insured’s breach of contract suit, which may include interest, court cost, and reasonable attorney’s fees incurred by the insured. Further, the court held excess judgment is not essential in a first party bad faith claim and the insurer’s late payment of the judgment did not preclude the insured’s bad faith action. As a result, the Fourth District Court of Appeals reversed the trial court’s final dismissal order of the bad faith action. This opinion highlights the distinction between contractual and extra-contractual damages. Moreover, this case demonstrates that a judgment does not necessarily end the dispute in a first party property claim as it is could also serve as a prerequisite of a bad faith action. The decision serves as a reminder that insurers may face bad faith exposure notwithstanding the payment of a judgment in an underlying breach of contract action.

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.