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.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3302-16T2

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 
3 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 thirdparty 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 
4 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 . . . .
5 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. 
6 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 

. . . .
7 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. 
8 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 
9 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 
10 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). 
11 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 
12 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 
13 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
14 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.