SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0299-21

CHENG HUI XIE and CHUN

RONG ZHU, his wife,

Plaintiffs-Appellants,

v.

VIOLA TILE AND MARBLE LLC

d/b/a VIOLA TILE & REMODELING,

SALVATORE VIOLA, GASPARE

VIOLA, and STONE KING PLAZA LLC,

Defendants.

__________________________________

MASSACHUSETTS BAY INSURANCE

COMPANY,

Plaintiff-Respondent,

v.

STONE KING PLAZA LLC,

Defendant-Appellant.

__________________________________

Argued November 15, 2021 – Decided December 16, 2021

NOT FOR PUBLICATION WITHOUT THE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.
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A-0299-21

Before Judges Sabatino, Mayer and Natali. 

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-0805-20.

Christina Vassiliou Harvey argued the cause for 

appellants Cheng Hui Xie and Chun Rong Zhu 

(Lomurro, Munson, Comer, Brown & Schottland LLC,

attorneys; Richard Galex, of counsel; Christina

Vassiliou Harvey, of counsel and on the brief). 

Liwu Hong argued the cause for appellant Stone King 

Plaza LLC. (Liwu Hong, attorney, joins in the brief of 

appellants Cheng Hui Xie and Chun Rong Zhu).

Kenneth E. Sharperson argued the cause for respondent 

Massachusetts Bay Insurance Company (Weber 

Gallagher Simpson Stapleton Fires & Newby LLP,

attorneys; Kenneth E. Sharperson, of counsel and on the 

brief).

PER CURIAM

This matter returns to us by way of a September 20, 2021 order from the 

New Jersey Supreme Court granting leave to appeal and remanding to review 

the legal issues on the merits. After hearing counsel's arguments, we reverse 

and remand to the trial court.
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The facts are undisputed. On December 2, 2019, plaintiff Cheng Hui Xie1

suffered an injury while working at Stone King USA, Inc. (SK USA). SK USA 

sold custom kitchen and bathroom cabinets and countertops. Defendant Viola 

Tile & Marble, LLC (Viola) removed a kitchen wall unit from SK USA. 

However, Viola's representative left a part of the unit, a large stone countertop, 

hanging from a wall in SK USA's store. The countertop was supported solely 

by a ladder and some pieces of wood. Plaintiff, believing the stone piece 

presented a danger to customers in SK USA's showroom, attempted to secure 

the countertop. In the process, the countertop fell on plaintiff's head, causing 

him to suffer serious and debilitating injuries and leaving him permanently 

disabled. 

SK USA rented space from defendant Stone King Plaza LLC (SK Plaza). 

SK Plaza owned a strip mall, consisting of several different stores, located in 

Middlesex Borough. Various family members held interests in SK Plaza. 

Plaintiff's brother, Tommy Xie, held a sixty percent interest as a member of SK 

Plaza. He also was the managing member of SK Plaza. Plaintiff, an investor in 

SK Plaza, held a twenty percent interest as a member of SK Plaza. Another 

1

 Chun Rong Zhu is plaintiff's wife and asserted a per quod claim based on her 

husband's injuries. We use the term plaintiff to refer to Cheng Hui Xie.
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family member held the remaining twenty percent interest in SK Plaza. On the 

day of the accident, plaintiff was not working or performing services for SK 

Plaza. Plaintiff did not receive compensation from SK Plaza. 

At the time of the accident, plaintiff worked for SK USA. Based on his 

status as an employee of SK USA and his significant injuries, plaintiff filed a 

petition for workers' compensation benefits. He eventually received 

compensation benefits from SK USA. 

Plaintiff also filed a personal injury action against Viola and others. On 

May 11, 2020, plaintiff amended the complaint to add SK Plaza as a defendant. 

Tommy Xie purchased liability insurance from Massachusetts Bay 

Insurance Company (MBIC) for SK USA and SK Plaza. Under the policy, SK

USA is a named insured and SK Plaza is an additional named insured. SK Plaza

requested MBIC defend and indemnify it against plaintiff's personal injury

claim. 

While investigating plaintiff's claim, MBIC learned SK USA and SK 

Plaza were owned by the same individuals. Based on this information, MBIC

sent a reservation of rights letter, informing SK Plaza that plaintiff "would be 

considered a Who is An Insured under the policy" and thus coverage would be 

denied under the policy's Workers' Compensation and Employer's Liability 
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exclusions. MBIC subsequently filed a declaratory judgment action seeking a 

judicial determination that it had no duty to defend or indemnify SK Plaza in 

plaintiff's personal injury action.2 

After brief discovery, MBIC moved for summary judgment, arguing the 

Workers' Compensation and Employer's Liability exclusions in its policy

precluded coverage. In granting the motion, the judge found SK Plaza and SK 

USA were named insureds under MBIC's policy, plaintiff was an employee of 

SK USA, and plaintiff was a part owner of both SK USA and SK Plaza. As a 

member of SK Plaza, the judge determined plaintiff met the definition of an 

"insured" and the Employer's Liability exclusion applied. Based on these 

findings, the judge held MBIC had no duty to defend or indemnify SK Plaza

against plaintiff's claim.3 The judge attached a written statement of reasons to 

his January 20, 2021 order.

2

In an October 16, 2020 order, plaintiff's personal injury action and MBIC's 

declaratory judgment action were consolidated. 

3

 Because the motion judge found the Employer's Liability exclusion in MBIC's 

policy applied, he did not determine whether the Worker's Compensation 

exclusion also applied. 
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Plaintiff moved for reconsideration, which was denied by a different 

judge.

4

 Plaintiff filed a motion for leave to appeal the orders granting summary 

judgment and denying reconsideration. On May 20, 2021, this court denied 

plaintiff's motion for leave to appeal. 

Plaintiff then appealed to the New Jersey Supreme Court. On September 

20, 2021, the Court granted plaintiff's motion for leave to appeal and summarily 

remanded the matter to this court to consider the trial court's orders on the 

merits. Xie v. Viola Tile & Marble, LLC, 248 N.J. 393 (2021). The Court also 

granted SK Plaza's motion for leave to appeal. Xie v. Viola Tile & Marble, 

LLC, 248 N.J. 402 (2021).

We review a trial judge's decision on a motion for summary judgment de 

novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). A motion for 

summary judgment must be granted "if the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The parties agree there are no genuine issues of material fact precluding 

our review of the issue on the merits.

4

 The original motion judge died unexpectedly in February 2021. 
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The issue presented is purely legal, involving the contractual 

interpretation of MBIC's insurance policy issued to SK USA and SK Plaza. We 

review a purely legal issue de novo. Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995); see also Pickett v. Moore's Lounge, 464 

N.J. Super. 549, 554-55 (App. Div. 2020) (citing Abboud v. Nat'l Union Fire 

Ins. Co. of Pittsburgh, Pa., 450 N.J. Super. 400, 406 (App. Div. 2017)).

When interpreting insurance contract provisions, we look to the plain 

meaning of the contractual language. Oxford Realty Grp. Cedar v. Travelers 

Excess & Surplus Lines Co., 229 N.J. 196, 207 (2017). "If the language is clear, 

that is the end of the inquiry." Ibid. (quoting Chubb Custom Ins. Co. v. 

Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)). A court should not 

"engage in a strained construction to support the imposition of liability" or write 

a more beneficial policy for the insured. Progressive Cas. Ins. Co. v. Hurley, 

166 N.J. 260, 273 (2001). 

The fact that parties offer conflicting interpretations of a policy's

contractual provisions does not render the policy language ambiguous. Fed. Ins. 

Co. v. Campbell Soup Co., 381 N.J. Super. 190, 195 (App. Div. 2005) (citing 

Powell v. Alemaz, Inc., 335 N.J. Super. 33, 44 (App. Div. 2000)). "A genuine 

ambiguity arises only when 'the phrasing of the policy is so confusing that the 
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average policy holder cannot make out the boundaries of coverage.'" Ibid.

(quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). 

With these legal principles in mind, we summarize the relevant provisions 

in MBIC's policy. The "Who is An Insured" clause provides an entity is insured 

if "designated in the Declarations as . . . [a] limited liability company." 

Members of the limited liability company are also insureds "but only with 

respect to the conduct of [the limited liability company's] business." 

The policy requires MBIC to "pay those sums that the insured becomes 

legally obligated to pay as damages because of 'bodily injury' or 'property 

damage' to which this insurance applies. [MBIC] will have the right and duty 

to defend the insured against any 'suit' seeking those damages." MBIC invoked 

two policy provisions in denying defense and indemnification to SK Plaza for 

plaintiff's bodily injury claim – the Workers' Compensation exclusion and the 

Employer's Liability exclusion. 

As a member and employee of SK Plaza, MBIC argued plaintiff's claim 

against SK Plaza was barred by the Workers' Compensation Act (WCA), 

N.J.S.A. 34:15-1 to -146. During oral argument, MBIC appeared to abandon its

argument based on the Workers' Compensation exclusion. 
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Even if MBIC intended to press its position under this exclusion, we reject 

that argument based on the definitions section of the WCA. Under N.J.S.A. 

34:15-36,

members of a limited liability company . . . who 

actively perform services on behalf of the . . . limited 

liability company . . . shall be deemed an 'employee' of 

the . . . limited liability company . . . for purposes of 

receipt of benefits and payment of premiums pursuant 

to this chapter, if the . . . limited liability company . . . 

elects, when the workers' compensation policy of the . 

. . limited liability company . . . is purchased or 

renewed, to obtain coverage for the . . . limited liability 

company members. 

There is no evidence on this record that (1) plaintiff actively performed any 

services for SK Plaza on the day of the accident and (2) SK Plaza elected to 

purchase workers' compensation insurance for its members. 

MBIC also cited information posted on the Department of Labor and 

Workforce Development website, arguing SK Plaza was required to maintain 

workers' compensation insurance and failed to do so. However, information 

posted on a website, untethered to supporting statutory or regulatory authority

within an agency's rulemaking powers, lacks the force of law. See In re N.J.A.C. 

7:1B-1.1, 431 N.J. Super. 100, 133 (App. Div. 2013) (stating an agency's 

website, explaining processes for granting a waiver of the agency's rules that 

differs from the governing statute, was "beyond merely facilitating 
10 A-0299-21

administrative implementation of the rules . . . and actually, to some extent, 

announc[ing] new substantive requirements").

Having concluded the Workers' Compensation exclusion is inapplicable, 

we consider whether the judge erred in determining MBIC had no duty to defend 

and indemnify SK Plaza against plaintiff's personal injury claim under the 

Employer's Liability exclusion. This provision excludes coverage for "[b]odily 

injury to [a]n 'employee' of the insured arising out of and in the course of: (a) 

[e]mployment by the insured; or (b) [p]erforming duties related to the conduct 

of the insured's business." 

MBIC claims that because plaintiff is an employee of SK Plaza, SK Plaza 

is not entitled to coverage. Under the policy, MBIC correctly asserts a limited 

liability company, and its members, are an insured. However, the coverage

exclusion in MBIC's policy is triggered if injured party is an employee of the 

limited liability company and "only with respect to the conduct of [the limited 

liability company's] business." MBIC offered no evidence plaintiff was an 

employee of SK Plaza or conducting business on behalf of SK Plaza at the time 

of his injury. 

MBIC contends a member of a limited liability company is a de facto 

employee of the limited liability company. Because plaintiff was a member of 
11 A-0299-21

SK Plaza, MBIC argues plaintiff was an employee of SK Plaza. We reject this 

argument as unsupported by MBIC's own definition of the term "employee" in 

its policy.

MBIC's policy clearly and simply defines the term "employee" as 

including "a 'leased worker'" but excluding "a 'temporary worker.'" Nowhere in 

MBIC's policy is a member of a limited liability company defined as an 

"employee." If MBIC intended to include a member of the limited liability 

company as an insured, MBIC could, and should, have expressly so stated in 

defining the term "employee." 

Nor do the cases relied upon by MBIC support its claim that every member 

of a limited liability company is also an employee of the limited liability 

company as a matter of law. Members of limited liability companies often 

provide purely investment capital or other form of financial support and never 

actually perform any work on behalf of the company. 

Based on our review of the record, there is no evidence supporting the 

application of the Employer's Liability exclusion under MBIC's policy. Plaintiff 

was not an employee of SK Plaza, and the record is devoid of any facts 

demonstrating plaintiff was "[p]erforming duties related to the conduct of [SK 
12 A-0299-21

Plaza]'s business" at the time of his injury to invoke the Employer's Liability 

exclusion. 

Any remaining arguments are without sufficient merit to warrant 

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

Reversed. We do not retain jurisdiction.