                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3302-16T2

DOUGLAS DASILVA,

        Plaintiff-Respondent,

v.

JDDM ENTERPRISES, LLC, DAVID COHEN
T/A JDDM CUSTOM CONSTRUCTION,

        Defendants-Appellants,

v.

UTICA FIRST INSURANCE COMPANY,

        Third-Party Defendant-Respondent,

and

2 HAND BROTHERS CONSTRUCTION, LLC,

     Third-Party Defendant.
___________________________________

              Argued April 25, 2018 – Decided July 27, 2018

              Before Judges Fuentes, Koblitz, and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Docket No.
              L-1840-14.

              Scott E. Becker           argued     the    cause    for
              appellants.
             Gretchen B. Connard argued the cause for
             respondent Utica First Insurance Company
             (Farber Brocks & Zane, attorneys; Gretchen B.
             Connard, on the brief).

PER CURIAM

       At all times relevant to this case, plaintiff Douglas DaSilva

was   an    employee     of   2   Hand   Brothers   Construction,     LLC     (Hand

Brothers). JDDM Enterprises, LLC (JDDM) was the general contractor

of    the   construction      project     at    which   Hand    Brothers     was    a

subcontractor.      Hand Brothers did not have a workers compensation

insurance policy at the time JDDM retained it to work as a

subcontractor.          On August 1, 2014, plaintiff filed a negligence

cause of action against JDDM and its principal, David Cohen,

seeking     compensatory      damages    for    injuries   he    suffered     while

working at the construction site as an employee of Hand Brothers.

At the time, JDDM had a Contractor's Special insurance policy with

Utica First Insurance Company (Utica).

       JDDM reported plaintiff's claim to Utica and requested it to

defend JDDM and Cohen in this suit and to indemnify them both

against any civil liability up to the policy's coverage limit.                     In

a letter to JDDM dated October 17, 2014, Utica denied coverage

pursuant     to   the    policy's    Workers'    Compensation     Exclusion      and

Employee Exclusion.               According to Utica, the policy did not

provide coverage if JDDM was required to provide plaintiff with

                                          2                                 A-3302-16T2
workers' compensation benefits under the Workers' Compensation

Act, N.J.S.A. 34:15-1 to -146.         Because plaintiff's employer, the

subcontractor, did not have a workers' compensation policy, under

N.J.S.A. 34:15-79(a), the general contractor is liable for any

compensation which plaintiff would have been entitled to receive

from his employer.

       JDDM and Cohen filed a responsive pleading to plaintiff's

complaint and a third-party declaratory judgment action against

Utica, seeking declaratory relief on the issue of coverage and an

injunction compelling Utica to defend JDDM and Cohen in the civil

action filed by plaintiff.         After joinder of issue, Utica moved

for summary judgment before the Law Division arguing the third-

party complaint should be dismissed based on the policy's workers'

compensation exclusion.       The motion judge agreed with Utica and

dismissed JDDM's and Cohen's third-party complaint as a matter of

law.    JDDM and Cohen thereafter entered into a Consent Judgment

in   which   they   agreed   to   be   jointly   and   severally   liable   to

plaintiff in the sum of $55,000.

       In this appeal, JDDM and Cohen argue the motion judge erred

when she concluded Utica was entitled to deny coverage under the

workers' compensation exclusion in the policy.           We review an order

granting a motion for summary judgment de novo, without any

deference to the Law Division's conclusions of law. Town of Kearny

                                       3                             A-3302-16T2
v. Brandt, 214 N.J. 76, 91 (2013).      We also consider the evidence

and the parties' factual contentions in the light most favorable

to the non-moving party.    Murray v. Plainfield Rescue Squad, 210

N.J. 581, 584 (2012); R. 4:46-2(c).      Applying these standards to

the record developed by the parties here, we affirm.

                                   I

                                   A

     JDDM is a limited liability company; Cohen is its sole member.

Utica issued a Contractor's Special liability policy to JDDM

effective from July 11, 2012 to July 11, 2013.           The policy's

declarations page identifies JDDM as the named insured. The policy

defines   "'you'   and   'your'"   as   "the   person,   persons,    or

organizations named as the insured on the 'declarations.'"           It

defines "insured" as:

          b. "you" and all "your" partners or members
          and their spouses, but only with respect to
          the conduct of "your" business, if shown on
          the "declarations" as a partnership or joint
          venture;

          c. "you" and all "your" members and managers,
          but only while acting within the scope of
          their duties, if shown on the "declarations"
          as a limited liability company . . . .




                                   4                          A-3302-16T2
     Coverage L, found on page nine of a forty-two-page policy

document,1     defines     Bodily   Injury     Liability/Property    Damage

Liability:

             "We" pay all sums which an "insured" becomes
             legally obligated to pay as "damages" due to
             "bodily injury" or "property damage" to which
             this insurance applies. The "bodily injury"
             or "property damage" must be caused by an
             "occurrence"   which  takes   place  in   the
             "coverage territory", and the "bodily injury"
             or "property damage" must occur during the
             policy period.

     The section titled "Defense Coverage" states: "Payments under

this coverage are in addition to the 'limits' for the Commercial

Liability Coverage[2] . . . We have the right and duty to defend a

suit seeking 'damages' which may be covered under the Commercial

Liability     Coverage."      Finally,   the    policy   contains   several

exclusions from coverage:

             "We" do not pay for a loss if one or more of
             the following excluded events apply to the
             loss, regardless of other causes or events
             that contribute to or aggravate the loss,
             whether such causes or events act to produce
             the loss before, at the same time as, or after
             the excluded event.



1
  The policy contains a Table of Contents with clearly worded
descriptions of the various subject areas.      "Definitions" is
properly labeled with subheadings. Subheading "Coverage L" is the
first subheading under "Definitions."
2
 The Declarations Page discloses the limit for each occurrence as
$1,000,000. The General Aggregate Limit is $2,000,000.

                                     5                              A-3302-16T2
          EXCLUSIONS THAT APPLY TO           BODILY INJURY,
          PROPERTY DAMAGE, PERSONAL          INJURY, AND/OR
          ADVERTISING INJURY

                 . . . .


          12.    [The Workers' Compensation Exclusion]

          "We" do not pay for "bodily injury" or
          "personal injury" if benefits are provided or
          are required to be provided by the "insured"
          under a workers' compensation, disability
          benefits, occupational disease, unemployment
          compensation, or like law.

The   policy    excludes   from   coverage   injuries   to   employees,

contractors, and employees of contractors:

          [The Employee Exclusion]

          This Endorsement only applies to worksites
          within the State of New York[.]

                 . . . .

          This insurance does not apply to:

          (i) bodily injury to any employee of any
          insured, to any contractor hired or retained
          by or for any insured or to any employee of
          such contractor, if such claim for bodily
          injury arises out of and in the course of
          his/her employment or retention of such
          contractor by or for any insured, for which
          any insured may become liable in any capacity;

          (ii) any obligation of any insured to
          indemnify or contribute with another because
          of damage arising out of the bodily injury
          . . . .




                                   6                            A-3302-16T2
                                 B

     On August 8, 2012, JDDM was functioning in the capacity of

general contractor when it hired Hand Brothers, as a subcontractor,

to perform work at a construction site located in the Township of

Livingston.   Hand Brothers drafted the proposal that described the

work it agreed to perform, but improperly listed "JDDM Custom

Construction, LLC," as the general contractor.     In a deposition

taken on August 23, 2016, plaintiff testified that at the time of

the accident on August 15, 2012, he was employed by a man named

Evan Soto, whom he later learned owned Hand Brothers, to do framing

work at the job site.

     In the Workers' Compensation – First Report of Injury or

Illness he filed with the Division of Workers' Compensation on

November 30, 2012, plaintiff named JDDM as his employer.      In an

amended Employee Claim Petition, plaintiff described the accident:

"Fell one story through [a] cutout stairwell" at the job site.

Cohen testified that in response to his question, the "owner"3 of

Hand Brothers told him he had workers' compensation insurance.

However, he did not ask him to produce proof of insurance at this

encounter.    When Hand Brothers provided Cohen a Certificate of

Liability Insurance, the Certificate was issued to "Top Line


3
 Cohen did not remember the name of the man who identified himself
as the "owner" of Hand Brothers.

                                 7                          A-3302-16T2
Quality Construction, Inc.", and not to Hand Brothers.       When asked

about this discrepancy, Cohen explained that he was not certain

who owned Top Line Quality Construction, Inc., but believed it was

another company owned by the owner of Hand Brothers.        Ultimately,

the Certificate of Liability Insurance Hand Brothers produced was

"fake."   The record shows that Hand Brothers did not have any

workers' compensation insurance during the time JDDM retained it

as a subcontractor.

     After it investigated the claim, Utica denied coverage in a

letter dated October 17, 2014.    Citing paragraph 11 (the Employee

Exclusion) and paragraph 12 (the Workers' Compensation Exclusion)

in the policy's "EXCLUSIONS," Utica explained that it would be

          unable to provide coverage to you or any other
          party seeking coverage under this policy of
          insurance for damages arising out of this
          incident. We will not defend any legal action
          against our insured or any other party; we
          will not indemnify our insured or any other
          party for any judgment awarded; and we will
          not make any payment on our insured for any
          other party's behalf in connection with
          damages arising out of this event.

     On March 31, 2017, the Law Division entered an Order of

Dismissal Through Settlement in which the court dismissed the

underlying   civil   action   between   plaintiff   and   JDDM   without

prejudice. (Emphasis added).     This order further provided: "The

parties may file a stipulation or order setting forth the specific


                                   8                             A-3302-16T2
settlement terms."       As part of the record in this appeal, JDDM

included an unsigned copy of an Order of Judgment with Stipulation

of Settlement.        In this document, JDDM and Cohen agreed that

plaintiff    could    enter   judgment      against   them   both    "jointly,

severally, and/or in the alternative for the sum of $55,000.00."

The balance of the Stipulation of Settlement states:

            3. Provided Defendants file a timely appeal,
            Plaintiff agrees to stay [the] execution and
            docketing of the within judgment during the
            pendency of said appeal to the filing of an
            opinion (R. 1:36-1) of the Appellate Division,
            whereupon:

            a. Defendants shall pay the sum of $27,500.00
            within thirty (30) days;

            b. And thereafter, Defendants shall pay an
            additional sum of $27,500 within one hundred
            eighty (180) days;

            4. Provided Defendants meet all obligations
            under this Order, Plaintiff agrees to suspend
            execution upon the Judgment.

In   his    brief    before   this    court,    JDDM's   appellate    counsel

acknowledged that plaintiff’s workers’ compensation claim has not

been decided.

                                       II

     JDDM    argues    that   the    Workers'   Compensation   Exclusion      in

Utica's policy is ambiguous and should be construed in favor of

coverage because the parties have unequal bargaining powers.                  In



                                        9                              A-3302-16T2
contrast, Utica argues that the Workers' Compensation Exclusion

is unambiguous and the exclusion should be given its plain meaning.

     "Insurance     policies     are        construed   in     accordance    with

principles   that   govern     the    interpretation      of    contracts;    the

parties' agreement 'will be enforced as written when its terms are

clear in order that the expectations of the parties will be

fulfilled.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J.

512, 525 (2012) (quoting Flomerfelt v. Cardiello, 202 N.J. 432,

441 (2010)). "The terms of insurance contracts are given their

'plain and ordinary meaning,' with ambiguities resolved in favor

of the insured." Ibid. (quoting Flomerfelt, 202 N.J. at 441).

     Exclusionary    clauses         are    presumed    valid    if   they    are

"specific, plain, clear, prominent and not contrary to public

policy."   Flomerfelt, 202 N.J. at 441 (quoting Princeton Ins. Co.

v. Chunmuang, 151 N.J. 80, 95 (1997)).             "If the terms used in an

exclusionary clause are ambiguous, 'courts apply the meaning that

supports coverage rather than the one that limits it.'" Mem'l

Props., LLC, 210 N.J. at 528 (quoting Flomerfelt, 202 N.J. at

442).   If however, "the words used in an exclusionary clause are

clear and unambiguous, 'a court should not engage in a strained

construction   to   support     the        imposition   of liability.'" Ibid.

(quoting Flomerfelt, 202 N.J. at 442).



                                       10                               A-3302-16T2
       The burden is on the insurer to show that an exclusionary

clause applies, and "[a]s a result, exclusions are ordinarily

strictly construed against the insurer, and if there is more than

one possible interpretation of the language, courts apply the

meaning that supports coverage rather than the one that limits

it."     Flomerfelt, 202 N.J. at 442 (citations omitted).                  However,

"courts must be careful not to disregard the 'clear import and

intent' of a policy's exclusion."             Ibid. (citing Westchester Fire

Ins. Co. v. Cont'l Ins. Cos., 126 N.J. Super. 29, 41 (App. Div.

1973)).    Additionally, not every "far-fetched interpretation of a

policy    exclusion       will   be   sufficient    to    create   an   ambiguity

requiring coverage," and instead, "courts must evaluate whether,

utilizing     a    'fair    interpretation'        of    the   language,    it     is

ambiguous."       Ibid.    (quoting Stafford v. T.H.E. Ins. Co., 309 N.J.

Super. 97, 105 (App. Div. 1973)).

       New Jersey's Workers' Compensation statute requires employers

to purchase workers' compensation insurance, and "[i]n return for

the employer assuming the burden of providing this coverage, the

employee surrenders the right to pursue any other remedy against

the employer, thus immunizing the employer from tort liability."

Eger v. E. I. du Pont de Nemours Co., 110 N.J. 133, 137 (1988)

(citing N.J.S.A. 34:15-7, -8).               Because general contractors are

not part of an employment contract between a subcontractor and its

                                        11                                  A-3302-16T2
employees, they are "not required to provide workers' compensation

coverage, and do not enjoy the immediate employer's immunity from

tort liability."    Ibid.

     N.J.S.A. 34:15-79(a) provides that:

           Any    contractor   placing   work    with   a
           subcontractor shall, in the event of the
           subcontractor's failing to carry workers'
           compensation insurance as required by this
           article, become liable for any compensation
           which may be due an employee or the dependents
           of a deceased employee of a subcontractor. The
           contractor shall then have a right of action
           against the subcontractor for reimbursement.

     Under   this    provision,    a   contractor    who   retains    a

subcontractor becomes liable for workers' compensation benefits

owed to the subcontractor's employees if the subcontractor does

not provide workers' compensation insurance.        Pollack v. Pino's

Formal Wear & Tailoring, 253 N.J. Super. 397, 403-04 (App. Div.

1992).   This section acts as an incentive for general contractors

to confirm that the subcontractors they hire are insured, "or else

the general contractor himself [or herself] will become liable to

pay such benefits."     Pollack, 253 N.J. Super. at 404; see also

Eger, 110 N.J. at 137 (explaining "this secondary liability is

imposed to ensure that a worker has some source of recovery, and

to provide an incentive for general contractors to place work with

insured subcontractors . . . .").      However, this provision "has



                                  12                          A-3302-16T2
no bearing on the tort liability of a general contractor to a

subcontractor's employee."        Eger, 110 N.J. at 137.

     Here, it is undisputed that JDDM was the general contractor

at the construction site where plaintiff was injured.                  It is also

undisputed that JDDM hired Hand Brothers as a subcontractor to

perform framing work at the property.                  Hand Brothers failed to

provide    workers'     compensation        coverage    to    its   employees      as

required by N.J.S.A. 34:15-7, -8.              Pursuant to N.J.S.A. 34:15-

79(a), because Hand Brothers failed to provide this coverage,

JDDM, as the general contractor, became liable to Hand Brothers'

employees        to    provide     workers'        compensation           coverage.

Specifically, JDDM was required by N.J.S.A. 34:15-79(a) to provide

workers' compensation benefits to plaintiff.                 Based on the record,

it also appears that JDDM's workers' compensation carrier admitted

liability pursuant to N.J.S.A. 34:15-79(a) and agreed to pay those

benefits.

     JDDM's insurance contract with Utica provides a Workers'

Compensation Exclusion to coverage, which excludes coverage for

"bodily" or "personal" injury if "benefits are provided or are

required    to    be   provided   by   the     'insured'      under   a    workers'

compensation . . . law."          Because JDDM was required to provide

workers' compensation coverage to plaintiff under N.J.S.A. 34:15-

79(a), New Jersey's Workers' Compensation statute, the policy's

                                       13                                   A-3302-16T2
Workers' Compensation Exclusion applied.        The literal language of

the Workers' Compensation Exclusion plainly excludes exactly the

type of coverage that JDDM is seeking.          We reject the argument

based   on   any   alleged   ambiguity   in   Utica's   policy   exclusion

provision.    The balance of JDDM’s arguments lack sufficient merit

to warrant discussion in a written opinion.        R. 2:11-3(e)(1)(E).

    Affirmed.




                                   14                              A-3302-16T2
