New Jersey Manufacturers Insurance v. Delta Plastics Corp. , 380 N.J. Super. 532 ( 2005 )

COBURN, P.J.A.D.,

dissenting.

As the majority recognizes, in N.J. Mfrs. Ins. v. Joseph Oat Corp., 287 N.J.Super. 190, 670 A.2d 1071 (App.Div.), certif. denied, 142 N.J. 515, 665 A.2d 1108 (1995), which was written by Judge Conley and joined by Judges Landau and Pressler, we held that the exact same exclusion at issue in the instant case was valid and enforceable. I agree with that decision and find entirely unpersuasive the reasons given for rejecting its analysis and result. The creation of conflicting decisions of this court on this point is particularly unfortunate since the insurance companies have been relying on Judge Conley’s decision for over a decade. It is reasonable to assume that the insured employers, who are presumed to know the law, also understood the import of this exclusion and knew, or should have known, that they were not insured for intentional conduct, however that conduct might be proved. “[A]n intentional wrong can be shown not only by proving a subjective desire to injure, but also by a showing ... that the employer knew an injury was substantially certain to result.” Laidlow v. Hariton Mach. Co., 170 N.J. 602, 614, 790 A.2d 884 (2002). Therefore, I respectfully dissent.