THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY VS. RLI INSURANCE COMPANY (L-0797-18, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4862-18

THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY,

Plaintiff-Appellant,

v.

RLI INSURANCE COMPANY,
TECHNO CONSULT, INC., and
MICHAEL FIUME,

Defendants-Respondents,

and

MICHAEL FIUME,

Defendant.
____________________________

Argued October 13, 2020 – Decided July 28, 2021

Before Judges Hoffman, Suter, and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0797-18.

Dinesh U. Dadlani argued the cause for appellant
(Segal McCambridge Singer & Mahoney, LTD,
 attorneys; Dinesh U. Dadlani and Mailise R. Marks, on
the briefs).

John A. Mattoon argued the cause for respondent RLI
Insurance Company (Ford Marrin Esposito Witmeyer
& Gleser, LLP, attorneys; Joseph D'Ambrosio and John
A. Mattoon, on the brief).

William F. Waldron, Jr., argued the cause for
respondent Techno Consult, Inc. (Marshall Dennehey
Warner Coleman & Goggin, attorneys; William F.
Waldron, Jr., of counsel and on the brief; Michael S.
Fogler, on the brief).

PER CURIAM

Plaintiff Port Authority of New York and New Jersey appeals from the

Law Division order denying its demand for coverage as an additional insured

under a comprehensive general liability policy issued to defendant Techno

Consult, Inc. (Techno) by defendant RLI Insurance Company (RLI). Plaintiff

also seeks reimbursement for its costs in defending the underlying claim and

litigation costs in this matter. For the reasons that follow, we affirm.

I.

The underlying action in this matter arises from a work-related injury

claim filed by defendant Michael Fiume, an employee of Halmar International

(Halmar). In his amended complaint, Fiume alleged that plaintiff and Techno

negligently, recklessly, and/or carelessly breached the duty of care to keep the

A-4862-18
2
premises where his injury occurred in a reasonably safe condition and to make

reasonable inspection, maintenance, and repair of the premises.

In September 2012, plaintiff and Port Authority Trans-Hudson

Corporation (PATH) contracted with Halmar to perform work on a construction

project at the Harrison PATH station. Pursuant to the contract, Halmar was

responsible for maintaining and supervising all safety precautions and programs

in connection with the construction. The contract required Halmar to create and

submit a Site Safety Program assessing potential jobsite hazards and describing

how to mitigate such hazards.

On December 12, 2014, plaintiff contracted with Techno (the Techno

contract) to perform expert professional construction management and

inspection services at all of plaintiff's facilities. The contract required Techno

to "immediately inform [plaintiff] of any unsafe condition discovered at any

time during the course of this work." The Techno contract also required Techno

to defend and indemnify plaintiff for claims arising out of Techno's work and to

procure a comprehensive general liability policy (CGL policy) naming plaintiff

as an additional insured. Thereafter, RLI issued Techno a CGL policy (the RLI

policy) for the period of January 10, 2015 to January 10, 2016.

A-4862-18
3
 Fiume sustained his injuries in a slip and fall at the Harrison construction

site on April 21, 2015. Fiume alleged that while loading tools on a lift at the

construction site, he slipped and fell on wet soil and rocks that were on a slope.

Fiume's liability expert opined that Techno failed in its duty to perform

construction management and inspection services by not reporting unsafe

working conditions.

In a letter dated April 18, 2017, RLI agreed to defend Techno against

Fiume's claims. In a letter dated May 4, 2017, plaintiff demanded a defense and

indemnification from Techno and RLI, pursuant to the Techno contract. In a

letter dated September 15, 2017, RLI responded to this request, denying

plaintiff's request for defense and indemnification on the basis that plaintiff did

not qualify as an additional insured under the RLI policy because Techno's

liability had not been determined; in addition, even if plaintiff qualified as an

additional insured, coverage would be denied under the professional services

exclusion. Fiume's claims eventually settled.

On February 26, 2018, plaintiff filed a complaint for declaratory judgment

against defendants asserting that 1) RLI failed to defend and/or indemnify

plaintiff as an additional insured against Fiume's claims in his initial complaint;

2) RLI breached its duties and obligations by refusing to defend and/or

A-4862-18
4
indemnify Port Authority; and 3) Techno breached its contractual obligations by

failing to obtain an insurance policy naming plaintiff as an additional insured.

One year later, RLI filed a motion for summary judgment, which the trial

court denied on April 17, 2019. The matter proceeded to a bench trial on May

13, 2019. The trial judge dismissed plaintiff's complaint with prejudice in an

order and letter opinion issued on May 30, 2019, finding that plaintiff was not

entitled to coverage as an additional insured as there was "no proof in the record

that Fiume's claimed injury was caused in whole or in part by Techno." The

court found that there was "limiting language" in the Blanket Additional Insured

Endorsement provision; in addition, the Professional Services Exclusion

provision of the RLI policy disqualified plaintiff as an additional insured. The

court determined that Techno had no duty to indemnify plaintiff for the claims

alleged by Fiume "as any injury he sustained did not arise in connection with

the performance of Techno's professional services." This appeal followed.

II.

We review questions of contract interpretation de novo, with no special

deference to the trial court's interpretation of the agreement. Kieffer v. Best

Buy, 205 N.J. 213, 222-23 (2011). "Well-settled contract law provides that

'[c]ourts enforce contracts based on the intent of the parties, the express terms

A-4862-18
5
of the contract, surrounding circumstances and the underlying purpose of the

contract.'" Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403,

415 (2016) (alteration in original) (quoting Manahawkin Convalescent v.

O'Neill, 217 N.J. 99, 118 (2014)). We are required "to read the document as a

whole in a fair and common sense manner." Ibid. (quoting Hardy ex rel.

Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009)).

"To determine the meaning of a provision in an insurance policy, we first

consider the plain meaning of the language at issue." N.J. Transit Corp. v.

Certain Underwriters at Lloyd's London, 461 N.J. Super. 440, 454 (App. Div.

2019) (citing Chubb Custom Ins. v. Prudential Ins. Co. of Am., 195 N.J. 231,

238 (2008)). "[W]hen 'the language of a contract is plain and capable of legal

construction, the language alone must determine the agreement's force and

effect.'" Cypress Point, 226 N.J. at 415 (quoting Manahawkin, 217 N.J. at 118).

If the provision is ambiguous, however, we "may look to extrinsic evidence as

an aid to interpretation." Ibid. (quoting Templo Fuente de Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 200 (2016)).

As a general rule of insurance contracts, "if the controlling language of a

policy will support two meanings, one favorable to the insurer and the other to

A-4862-18
6
the insured, the interpretation favoring coverage should be applied." Id. at 416

(quoting Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 575 (1970)).

III.

Plaintiff argues that it qualifies as an additional insured through the

Blanket Additional Insured Endorsement provision in the RLI policy. The

provision states, in part:

1. C. WHO IS AN INSURED is amended to include
as an additional insured any person or organization
that you agree in a contract or agreement requiring
insurance to include as an additional insured on this
policy but only with respect to liability for "bodily
injury," "property damage" or "personal and
advertising injury" caused in whole or in part by you
or those acting on your behalf:

a. In the performance of your ongoing operations;

b. In connection with premises owned by or rented
to you; or

c. In connection with "your work" and included
within the "product-completed operations
hazard[.]"[]

2. The insurance provided to the additional insured by
this endorsement is limited as follows:

a. This insurance does not apply on any basis to any
person or organization for which coverage as an
additional insured specifically is added by
another endorsement to this policy.

A-4862-18
7
 b. This insurance does not apply to the rendering of
or failure to render any "professional
services[.]"[]

c. This endorsement does not increase any of the
limits of insurance stated in D. Liability And
Medical Expenses Limits of Insurance.

The RLI policy defines "your work" as:

"Your work":

a. Means:

(1) Work or operations performed by you or on your
behalf; and

(2) Materials, parts or equipment furnished in
connection with such work or operations.

b. Includes:

(1) Warranties or representations made at any time
with respect to the fitness, quality, durability,
performance or use of "your work"; and

(2) The providing of or failure to provide warnings
or instructions.

Plaintiff asserts that this provision "provides additional insured status to

any person or organization with whom the named insured agrees to provide

additional insured coverage to in a written contract." Plaintiff argues that

because Techno was required by contract to name it as an additional insured

A-4862-18
8
under the RLI policy, as evidenced by Section 26(A)(1) of the Techno contract,

it is an additional insured, which in turn makes it an insured.

Examining the plain language of the policy, it is clear that in order to

trigger coverage for plaintiff as an additional insured under the RLI policy, there

must be liability for Fiume's injuries "caused in whole or in part by [Techno] or

those acting on [Techno's] behalf." Fiume's claims in the underlying action

ended in a settlement. The trial court in this action found that there was "no

proof in the record that Fiume's claimed injury was caused in whole or in part

by Techno. Absent such a finding, [plaintiff] cannot be deemed to be an

additional insured."

Fiume's complaint alleged that plaintiff and Techno negligently,

recklessly and/or carelessly breached its duty of care to "keep the premises in a

reasonably safe condition and to make reasonable inspection, maintenance and

repair of the premises so that members of the general public, including [Fiume],

could work at the premises in reasonable safety." Even if we assume that Techno

was at fault, plaintiff's claim for coverage still fails based on the provision that

appears in Section 2(b), above, which states: "This insurance does not apply to

the rendering of or failure to render any 'professional services.'" The application

of the Professional Services Exclusion depends on whether Fiume's complaint

A-4862-18
9
alleged a rendering or failure to render any professional services that are

included in the RLI policy.

Plaintiff argues that the trial court erred in finding that it was not entitled

to coverage as an additional insured by focusing only on the Professional

Services Exclusion and by not considering "the actual allegations contained

within the Fiume complaint" or defendants' duty to defend. It asserts that the

court "created a retrospective illusory contract wherein the [plaintiff] would

never receive additional insured coverage through the RLI policy because . . .

any liability on behalf of Techno would derive from Professional Services and,

therefore be subject to the Professional Services Exclusion."

Plaintiff argues that the duty to defend is triggered by the allegations in

Fiume's amended complaint claiming negligence, recklessness and/or

carelessness in the breach of the duty of care. In support of this assertion,

plaintiff points to the April 18, 2017 letter, wherein RLI informed Techno it

would defend Techno against Fiume's allegations that Techno was responsible

for the safety of the premises where Fiume sustained injuries.

The duty to defend derives from the language of the policy. Hartford

Accident & Indem. Co. v. Aetna Life & Cas. Ins., 98 N.J. 18, 22 (1984). "In

considering the meaning of an insurance policy, we interpret the language

A-4862-18
10
'according to its plain and ordinary meaning.'" Flomerfelt v. Cardiello, 202 N.J.

432, 441 (2010) (quoting Voorhees v. Preferred Mut. Ins., 128 N.J. 165, 175

(1992)). "If the terms are not clear, but instead are ambiguous, they are

construed against the insurer and in favor of the insured, in order to give effect

to the insured's reasonable expectations." Ibid.

Disputes about an insurer's duty to defend are "generally determined by a

side-by-side comparison of the policy and the complaint, and [are] triggered

when the comparison demonstrates that if the complaint's allegations were

sustained, an insurer would be required to pay the judgment." Wear v. Selective

Ins. Co., 455 N.J. Super. 440, 453 (App. Div. 2018) (citing Sears Roebuck &

Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 340 N.J. Super. 223, 241-42 (App.

Div. 2001)). "In making that comparison, it is the nature of the claim asserted,

rather than the specific details of the incident or the litigation's possible

outcome, that governs the insurer's obligation." Ibid. (quoting Flomerfelt, 202

N.J. at 444).

"The duty to defend is not abrogated by the fact that the claim may have

no merit and cannot be maintained against the insured, either in law or in fact,

because the cause of action is groundless, false, or fraudulent." Sears Roebuck

& Co., 340 N.J. Super. at 241-42. "If the complaint is ambiguous, doubts should

A-4862-18
11
be resolved in favor of the insured and thus in favor of coverage." Voorhees,

128 N.J. at 173-74 (citing Cent. Nat'l Ins. v. Utica Nat'l Ins., 232 N.J. Super.

467, 470 (App. Div. 1989)). The analysis of the allegations is not limited to the

complaint itself, but rather "facts outside the complaint may trigger the duty to

defend." SL Indus., Inc. v. Am. Motorists Ins., 128 N.J. 188, 198 (1992).

Plaintiff points to the portion of the Blanket Additional Insured

Endorsement in the RLI policy that provides for coverage of an additional

insured "but only with respect to liability for 'bodily injury' . . . caused in whole

or in part by you or those acting on your behalf . . . [i]n the performance of your

ongoing operations . . . ." Immediately following this provision, the policy states

that "[t]his insurance does not apply to the rendering of or failure to render any

'professional services.'" Plaintiff argues that the court relied only on the

Professional Services Exclusion in the RLI policy when it denied coverage to

Port Authority as an additional insured. This provision states, in part:

RLIPack FOR DESIGN PROFESSIONALS
PROFESSIONAL SERVICES EXCLUSION

This endorsement modifies insurance provided under
the following:

BUSINESSOWNERS COVERAGE FORM –
SECTION II – LIABILITY

A-4862-18
12
1. Section II B.1.j. Exclusions, Professional Services is
deleted and replaced by the following:

j. Professional Services

"Bodily injury," "property damage" or "personal and
advertising injury" arising out of the rendering or
failure to render any "professional services[.]"[]

2. The following is added to Section II F. Liability and
Medical Expenses Definitions:

"Professional services" means any service requiring
specialized skill or training including but not limited
to the following:

a. Preparing, approving, or failing to prepare or
approve any map, shop drawing, opinion, report,
survey, field order, change order, design,
drawing, specification, recommendation, permit
application, payment request, manual or
instruction;

b. Supervision, inspection, quality control,
architectural, engineering or surveying activity
or service, job site safety, warning or failure to
warn, construction contracting, construction
administration, construction management,
computer consulting or design, software
development or programming service, or
selection of a contractor, subcontractor or
subconsultant;

c. Monitoring, testing, or sampling service
necessary to perform any of the services
including in a. or b. above.

....

A-4862-18
13
 This exclusion applies even if the claims allege
negligence or other wrongdoing in the supervision,
hiring, employment, training or monitoring of others
by an insured, if the "occurrence" which caused the
"bodily injury" or "property damage," or the offense
which caused the "personal and advertising injury,"
involved the rendering or failure to render any
"professional services[.]"[]

Plaintiff argues that this exclusion "requires a causal link between the

performance of the professional service and the application of the exclusion." It

claims that there is "no causal link between all the allegations in the complaint,

particularly the Third Count, to warrant the application of the professional

services exclusion in rendering a complete denial of coverage rather than a

reservation."

"[E]xclusions in insurance policies are presumptively valid and

enforceable 'if they are "specific, plain, clear, prominent, and not contrary to

public policy."'" Wear, 455 N.J. Super. at 454 (quoting Flomerfelt, 202 N.J. at

441). "[C]ourts will find 'a genuine ambiguity to arise where the phrasing of the

policy is so confusing that the average policyholder cannot make out the

boundaries of coverage.'" Ibid. (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J.

233, 247 (1979)). We narrowly construe exclusions, however, we "must be

careful . . . 'not to disregard the "clear import and intent" of a policy's exclusion

A-4862-18
14
. . . .'" Ibid. (quoting Flomerfelt, 202 N.J. at 442). "The insurer has the burden

of bringing the case within the exclusion." Ibid. (citing Am. Motorists Ins. Co.

v. L-C-A Sales Co., 155 N.J. 29, 41 (1998)). "Far-fetched interpretations of a

policy exclusion are insufficient to create an ambiguity requiring coverage."

Ibid. (citing Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97, 105 (App. Div.

1998)).

The RLI policy excludes coverage for "'[b]odily injury,' 'property damage'

or 'personal and advertising injury' arising out of the rendering or failure to

render any 'professional services[.]'" "Professional services" is defined as "any

service requiring specialized skill or training including but not limited to the

following . . . [s]upervision, inspection, . . . engineering or surveying activity or

service, job site safety, warning or failure to warn, construction contracting,

construction administration, [and] construction management . . . ."

Techno was contracted to perform expert professional construction

management and inspection services at all of plaintiff's facilities. Per the

contract, Techno was to perform the following tasks: construction inspection

services, which include services related to structural steel, structural concrete,

asphalt and concrete paving, painting of structural steel, electrical, mechanical,

and civil; construction contract administration; constructability review; and cost

A-4862-18
15
engineering/estimating. Techno was also required to "immediately inform [Port

Authority] of any unsafe condition discovered at any time . . . ."

The question is whether the complaint alleges negligence claims related

to professional services or non-professional services. Fiume alleged in his

complaint that he slipped and fell on wet soil and rocks that were on a slope

while he loading tools onto a lift. The relevant portions of Fiume's underlying

complaint, starting with the first count, reads as follows:

3. On or about, April 21, 2015, and for some time prior
thereto, Defendant(s), The Port Authority of NY &
NJ, Techno Consult, Inc., . . . were actively engaged
as owners, developers, project managers, site
supervisor, general contractors, sub-contractors
and/or contractors at the subject premises and
subject work site mentioned above and were
responsible for the control, supervision,
maintenance, design, implementation, procurement
and hiring of subcontractors, inspection of premises
and charged with the responsibility of implementing
and regulating safety procedures for the premises
and the construction project at the subject premises
and all that entailed.

4. Defendant(s), The Port Authority of NY & NJ,
Techno Consult, Inc., . . . warranted, either expressly
or implicitly, to the public, the contractors and sub-
contractors and their employees and more
particularly, to Plaintiff, Michael Fiume, that the
subject construction project and the premises would
be operated, controlled, managed, maintained,
inspected and supervised in a safe and reasonable
manner so that the premises, construction area

A-4862-18
16
 would be safe and secure for the construction
activities conducted thereon.

5. Defendants, The Port Authority of NY & NJ, Techno
Consult, Inc., . . . did breach said warranties in that
the aforesaid premises was extremely dangerous and
unreasonably unsafe in that improper safety features
were implemented, construction, inspection and
permitted on the site and the construction site and
activities were not reasonably safe or fit for the
activities occurring there, and were further defective
and unsafe in that the premises contained no
reasonably adequate safeguards or warnings
regarding the risks and hazards involved in its
operations and all of the above unreasonably
dangerous conditions existed at the time said
construction began at the above mentioned premises
by and through said Defendant(s), and the actions of
their employees, . . . individually, jointly and/or in
concert with each other and existed on April 21,
2015.

....

7. Due to the carelessness, recklessness and/or
negligence of the Defendant(s), The Port Authority
of NY & NJ, Techno Consult, Inc., . . . Plaintiff,
Michael Fiume, in the scope of his employment was
loading a man lift basket with his tools, Plaintiff
slipped and fell on soft and wet soil and rocks that
was on a slope and sustained serious personal
injuries.

[(emphasis added).]
The relevant allegations contained in the second count are:

A-4862-18
17
 4. At the time and place aforesaid, Defendant(s), The
Port Authority of NY & NJ, Techno Consult, Inc.,
. . . owed a duty to the Plaintiff and to members of
the general public to keep the premises in a
reasonably safe condition and to make reasonable
inspection, maintenance and repair of the premises
so that members of the general public, including the
Plaintiff, could work at the premises in reasonable
safety.

5. At the time and place aforesaid the Defendant(s),
The Port Authority of NY & NJ, Techno Consult,
Inc., . . . did breach the aforesaid duty of care and
were negligent and careless in allowing and/or
permitting a dangerous, hazardous and nuisance-like
condition to exist for an unreasonable period of time
in the premises, namely, soft and wet soil and rocks.

[(emphasis added).]

Reading the underlying complaint alongside the RLI policy, the

allegations fall in line with the language of the Professional Services Exclusion.

The relevant services included in the Professional Services Exclusion are

supervision, inspection, job site safety, warning or failure to warn, construction

administration and construction management. The underlying complaint

contains allegations of negligence on the part of plaintiff and Techno with

respect to "supervision," "inspection of the premises," "implementing and

regulating safety procedures," management, and failure to warn. Because the

professional services listed in the Professional Services Exclusion are alleged

A-4862-18
18
by Fiume in the underlying complaint, the exclusion applies, barring coverage

for plaintiff as an additional insured under the CGL policy and thus, RLI did not

have a duty to defend.

Plaintiff asserts that if RLI's arguments are taken as true, it would be left

with "near illusory coverage" under the RLI policy as an additional insured. It

argues that "pursuant to the Separation of Insureds clause, RLI was obligated to

evaluate its duty to defend [plaintiff] separately from the duty to defend Techno,

including the applicability of any exclusions." The Separation of Insureds

clause states:

Except with respect to the Limits of Insurance of
SECTION II – LIABILITY, and any rights or duties
specifically assigned in this policy to the first Named
Insured, this insurance applies:

a. As if each Named Insured were the only Named
Insured; and

b. Separately to each insured against whom claim is
made or "suit" is brought.

Plaintiff cites to an out-of-state case from the Northern District of Illinois,

U.S. Fid. & Guar. Co. v. Shorenstein Realty Servs., L.P., 700 F. Supp. 2d 1003,

1011 (N.D. Ill. 2010), to support its position that RLI is obligated to evaluate its

duty to defend Port Authority, as well as the applicability of the Professional

Service Exclusion, separately from Techno. In a declaratory judgment action

A-4862-18
19
arising from a fatal accident at a restoration project, the district court reviewed

the policy's separation of insureds provision alongside the professional services

exclusion and concluded that the separation of insureds provision "must be

interpreted as requiring that the coverage of each insured or additional insured

be determined separately from other insureds. . . . [T]he professional services

exclusion must be applied vis a vis [the additional insured's] own conduct."

Shorenstein, 700 F. Supp. 2d at 1014-15. Applying this interpretation, the

district court found that the additional assured would remain covered despite the

professional services exclusion because it did not perform professional services

on the project at issue. Id. at 1015.

While Shorenstein is factually similar to the case under review, the

underlying complaint in Shorenstein differs in a significant respect. The

additional insured in Shorenstein was not alleged to have performed professional

services and the underlying claim alleged causes of action different from that of

the insured. Id. at 1010. In this matter, Fiume's underlying claim did not

differentiate between plaintiff and Techno.

Contrary to plaintiff's argument that it is neither alleged nor is there

evidence of plaintiff performing professional services at the project, Fiume's

allegations of negligence with respect to "supervision," "inspection of the

A-4862-18
20
premises," "implementing and regulating safety procedures," management, and

failure to warn were made against both plaintiff and Techno. Even if we

separately evaluate plaintiff's conduct under the Professional Services

Exclusion, plaintiff still would not qualify for coverage because the underlying

complaint alleges negligent conduct involving professional services that are

excluded under the Professional Services Exclusion.

Fiume's allegations were that Techno was liable for a failure to inspect

and alert about a slippery condition at the property. Plaintiff could not be an

additional insured, however, because the alleged liability had to be caused in

whole or part by Techno as part of its work, but under the policy, the work did

not include professional services. Therefore, plaintiff was not an additional

insured because the allegations involved professional services.

Alternatively, plaintiff asserts that, based on RLI's "improper denial" of

its tender, RLI should be ordered to reimburse Port Authority for its costs in

defending the underlying matter as well as the costs for pursuing coverage. If

"an insurer believes that the evidence indicates that the claim is not covered, the

insurer is not always required to provide a defense." Wear, 455 N.J. Super. at

456. (quoting Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241,

274 (App Div. 2008)). If an insurer decides that it will not provide a defense

A-4862-18
21
for a claim, its "obligation to defend becomes an obligation to reimburse for

defense costs to the extent that the defense is later determined to have be en

attributable to the covered claims and, if coverage is not determinable in the

underlying action, it is later determined that there was in fact coverage." Wear,

455 N.J. Super. at 455-56 (quoting Muralo Co. v. Emp'rs Ins. of Wausau, 334

N.J. Super. 282, 289-90 (App. Div. 2000)). "Although the duty to defend is

broader than the duty to pay, the duty 'is not broader in the sense that it extends

to claims not covered by the covenant to pay.'" Id. at 456 (quoting Grand Cove

II Condo. Ass'n v. Ginsberg, 291 N.J. Super. 58, 72 (App. Div. 1996)). Since

we find the claims in the underlying complaint fall under the services listed in

the Professional Services Exclusion, RLI is under no duty to reimburse as there

is no coverage under the policy.

For any claims in the underlying complaint against plaintiff and Techno

that fall under the services listed in the Professional Services Exclusion, RLI

was under no duty to reimburse since there is no coverage under the policy. For

any claims not barred under the Professional Services Exclusion, plaintiff

needed to show that, pursuant to the Blanket Additional Insured Endorsement,

that liability for Fiume's injuries was "caused in whole or in part by" Techno in

A-4862-18
22
the performance of their operations. The trial judge correctly rejected plaintiff's

claims.

Affirmed.

A-4862-18
23