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Voorhees v. Preferred Mutual Insurance Co.3/20/1991
This appeal presents novel questions concerning an insurer's duty to defend its insured. The principal issue is whether a complaint alleging that the insured committed the torts of outrage and negligent infliction of emotional distress resulting in mental anguish to the claimant creates a duty to defend under the comprehensive general liability coverage of a homeowner's insurance policy. An ancillary question is how the insurer's duty to defend can best be enforced where an action against the insured includes covered and non-covered claims. We hold that the term "bodily injury," as used in the policy, encompasses the mental and psychological sequelae resulting from the torts of outrage and negligent infliction of emotional distress and therefore the insurer had the duty to defend. We also conclude that because the expenses incurred by the insured cannot fairly be apportioned between covered and non-covered claims, the insurer alone should bear the reasonable costs of the defense.
I.
In December 1985, Linda Sisto, a teacher in the Kenilworth public schools, filed a complaint in the Law Division, naming as defendants the superintendent, the principal, the board of education, two local newspapers, plaintiff Eileen Voorhees and another parent of a student. The complaint alleged that Sisto had been suspended from her teaching duties and directed to undergo psychiatric examinations as a result of the claims of several parents concerning her alleged lack of fitness. Sisto claimed that the school officials had acted unfairly and that she had been defamed by reports of the episode in the newspapers.
The fourth count of the complaint was directed against Voorhees and the other parent. Because the complaint was inartfully drafted, it is difficult to characterize accurately the specific claims made against the two defendants. The issue is an important one and we therefore quote liberally from the fourth count:
At various times and on various dates relevant to this complaint, defendants Constance Scuderi and Eileen Voorhees made false and erroneous statements about the competency and fitness of the plaintiff, such statements serving to place plaintiff before the public in a false light, further serving to interfere with her rights of privacy and to inflict upon her severe humiliation, embarrassment, emotional distress and mental anguish. The statements as well as conduct of these defendants respecting the plaintiff herein were made and carried out wilfully, deliberately, recklessly and negligently. Moreover, these defendants knew or should have known that their statements about plaintiff were false and would probably, as occurred, place plaintiff before the public in a false light, interfere with her rights of privacy, cause her severe humiliation, embarrassment, emotional distress and mental anguish.
As a direct and proximate result of the foregoing, plaintiff was damaged in her reputation as a professional teacher and has been unable and remains unable to function in her customary teaching assignment. Moreover, she has been placed before the public in a false light, has had her rights of privacy interfered with and has suffered and continues to suffer embarrassment, humiliation, emotional distress and mental anguish. [Emphasis added].
Upon receipt of the complaint, Voorhees notified defendant Preferred Mutual Insurance Co. (Preferred) of the pendency of the suit and requested it to defend the action in accordance with its obligation under her homeowner's policy. In an exchange of correspondence, defendant declined Voorhees' demand. Initially, defendant asser
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