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Temporary worker’s tort suit covered by liability policy

Virginia Lawyers Weekly//November 29, 2022

Temporary worker’s tort suit covered by liability policy

Virginia Lawyers Weekly//November 29, 2022

A liability exclusion in a commercial general liability policy does not preclude coverage of a negligence claim brought by a staffing agency worker who said he suffered injuries because he was not provided with adequate protective clothing while working in an employer’s refrigerated warehouse, a federal judge has held.

Defendant New England Ice Cream Corp. was sued for negligence by Angel Parilla Rivera, who had been hired through a staffing agency for seasonal work in the defendant’s refrigerated warehouse.

NEICC submitted the claim for defense and indemnification under a CGL policy issued by plaintiff Union Insurance Co. The insurance company asserted that the employer’s liability exclusion in its policy precluded coverage of Rivera’s tort claim and sued for a judgment to that effect.

The exclusion generally provided that the policy did not cover bodily injury to an employee sustained in the course of employment. The policy defined “employee” to include a “leased worker” but not a “temporary worker.”

In granting summary judgment to NEICC, Judge Denise J. Casper concluded that the exclusion did not apply because Rivera qualified as a temporary worker under the terms of the policy. The judge rejected the insurance company’s argument that Rivera qualified as a leased worker because NEICC had contemplated hiring him on a permanent basis.

“Looking prospectively at NEICC’s intent in hiring Rivera, as the Court must under the relevant case law …, its intent was to address its seasonal needs,” Casper wrote. “This is reflected in the timing of the hire, its workload needs at the time of hiring and its arrangement with [the staffing agency] to make this hire. That a temporary worker might become a permanent one, does not change the nature of that temporary engagement.”

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