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Town of Cumberland v. Rhode Island Interlocal Risk Management Trust11/24/2004
s exclusions are broader than that of the Trust policy, barring coverage for any loss arising out of an inverse condemnation. We need not pass upon the breadth of Coregis's exclusionary language because, as discussed supra, we affirm the motion justice's finding that the town's actions did not amount to a taking.
Coregis also asserts that its exclusion for expected or intended acts precludes coverage. The exclusion provides, in pertinent part: " his policy does not provide coverage for liability which is expected or intended by the Insured." As discussed herein, the explicit coverage for the enumerated intentional torts and exclusion of intended harm creates facial ambiguity that we construe in favor of the insured.
Coregis further argues that it is not required to indemnify the town because diminution in property value is not a physical injury , as required under the policy definition of "property damage." We deem this argument to be without merit because the underlying claims are for personal injuries resulting from civil rights violations and not for property damage.
Lastly, Coregis contends that its public officials errors or omissions exclusion precludes coverage in this case. The motion justice found that, although defendants were liable under the general liability policy, they were not liable under the policy's errors and omissions clause, which says: "Underwriters shall not be liable to make payment for loss in connection with any claim made against the [town] if a judgment or final adjudication in any action brought against the [town] shall be based on a determination that acts of fraud or dishonesty were committed by the [town]."
Unlike the Trust policy errors and omissions clause, which hinges on a judgment or adjudication of fraud or dishonesty, Coregis's public officials errors and omissions exclusion hinges on allegations of negligence:
"This policy does not apply to any claim made against any insured in his capacity as, or arising out of his activities as a public official and caused by, or alleged to have been caused by, any negligent act, error or omission of any insured, or any other person for whose actions any insured is legally responsible."
The town's liability arose from the town officials' intentional violation of the underlying claimants' civil rights. This is not a claim arising from a public official's "negligent act, error or omission" and that exclusion is not applicable in the context of this case.
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court. The papers of the case are remanded to the Superior Court.
Justice Flaherty and Justice Robinson did not participate.
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