The New Jersey Supreme Court has declined to hear an insurance carrier’s appeal of a decision holding that it must provide coverage to a Newark firefighter who fell through a glass panel on a roof while responding to a fire.
The court issued an order denying a petition for certification on Oct. 20.
The denial leaves intact an Appellate Division ruling from last May that said the policy written by Travelers Insurance Co. was meant to cover the premises of the building, even though there was an agreement that the building’s owner would maintain the roof.
According to the Appellate Division decision, Newark Battalion Chief Kevin Killeen was injured on July 26, 2009. He was responding to a fire on Sherman Avenue. In order to reach the fire, Killeen was on the roof of an adjacent building on Branford Street owned by NSPC Inc. and leased by Jensen & Mitchell Inc., a truck repair facility.
As he was walking on the roof of the NSPC building, he stepped on and fell through a glass panel. He sustained serious injuries to his back, shoulder, pelvis and hip, and was forced to retire, he claimed.
Afterward, Killeen filed a premises liability lawsuit against NSPC and J&M.
Killeen and NSPC entered into an agreement to protect NSPC’s assets, and an arbitrator awarded Killeen $2.3 million. Killeen also was assigned NSPC’s rights under a premises liability policy issued to J&M by Travelers, the decision said.
NSPC then filed a third-party complaint against Travelers, which denied coverage. The carrier cited language in the policy that said NSPC had the sole responsibility of maintaining the roof, according to the decision.
A trial judge agreed with Travelers, and NSPC appealed.
In an unpublished decision, Appellate Division Judges Susan Reisner, Ellen Koblitz and Garry Rothstadt reversed, writing: “Here, the additional insured endorsement under the Travelers policy provides NSPC coverage with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to [J&M].”
“The roof, a vital part of the Branford Street property, is a part of the premises leased to J&M,” the judges said.
Killeen’s attorney, Jason Daria, of Philadelphia’s Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, was not immediately available for comment.
Travelers’ attorney, Frank Borowsky, of Borowsky & Borowsky in Shrewsbury, also was not available.