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Maroney v. New York Central Mutual Fire Insurance Company9/23/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MEMORANDUM AND ORDER
Calendar Date: May 27, 2004
Appeal from an order of the Supreme Court (Monserrate, J.), entered August 25, 2003 in Otsego County, which, inter alia, denied defendant's cross motion for summary judgment.
In June 1997, plaintiff made arrangements for her then-six-year-old son, Mark, to be cared for during the day at the home of third-party defendants John J. Morris and Deborah A. Morris (hereinafter collectively referred to as the Morrises), by Deborah Morris's then-14-year-old daughter, Ashley. On the morning of June 19, 1997, plaintiff dropped off Mark for what was scheduled to be the first day that Ashley watched him. After plaintiff left, Deborah Morris indicated that she had to go across the road to the barn, which contained their horses, as well as other horses boarded for a fee, to do some chores before she left for work. Since Ashley was still dressing, Deborah Morris asked Mark if he would like to go with her. The child agreed and accompanied Deborah Morris while she, among other things, fed the horses. Unfortunately, as she was leading one of the boarded horses out of the barn to the pasture, Mark got behind the horse and was kicked in the forehead, suffering a fractured skull with lasting physical and mental effects.
Initially, the Morrises' entire property was insured under a homeowner's policy issued by defendant. When the Morrises built the barn on the east side of the highway (their house was located on the west side), defendant's policy was amended to cover farming operations east of the highway. However, once John Morris and his cousin, third-party defendant Thomas C. Morris, started a horse boarding business at the barn, the policy was amended on May 28, 1997, deleting coverage for all property east of the highway as defendant will not insure a horse boarding business. As a result, John Morris and Thomas Morris obtained a separate policy issued by the Broome County Cooperative Fire Insurance Company for the east side of the highway.
The Morrises provided notice of the accident to both insurance companies and defendant sent a disclaimer letter which begins with a verbatim restatement of a coverage exclusion excluding liability coverage for injuries "arising out of business pursuits of an insured." The letter next lists the exclusion for injuries "arising out of a premises . . . owned by an insured . . . that is not an insured location." Then, the letter "additionally" refers to endorsement H0-322, which describes circumstances under which home day care services could constitute a business which would likewise not receive liability coverage. The letter next restates a portion of the endorsement and notes again that the policy "does not provide Section II iability overages because a business of an insured is excluded," and concludes by summarizing the denial of the request for coverage by restating: (1) "The accident occurred as a result of business pursuits," (2) "The accident occurred on premises you own which is not an insured location" and (3) " ome day care services are considered to be a business, which is excluded as outlined above."
In February 2000, plaintiff, individually and on behalf of Mark, commenced a personal injury action against the Morrises and Thomas Morris, alleging negligent supervision by Deborah Morris. The Morrises sent a copy of the complaint to defendant, which sent a second disclaimer letter restating its reasons and elaborating that the accident "occurred at your business property while you were undertaking your duties there." In September 2001, plaintiff commence
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