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South Carolina Farm Bureau Mutual Insurance Co. v. S.E.C.U.R.E. Underwriters Risk Retention Group11/27/2000
the dog bite occurred on the business premises of Garrison Pest control does not mean that it arose out of a business pursuit or arose out of premises owned by the Garrisons but not insured under the homeowner's policy. Therefore, we hold Farm Bureau's policy exclusions are inapplicable to the injury sustained by Jordan Purvis and affirm the circuit court's determination that Farm Bureau has a duty to defend and, if necessary, indemnify the Garrisons in the underlying action.
B. SECURE's Appeal
SECURE appeals the order of the circuit court finding it has a duty to defend and, if necessary, indemnify the parties in the underlying action. We disagree.
Incident's Relationship to An "Insured" Under the Policy's Terms
SECURE argues the claims asserted in the underlying action do not relate to the duties of Ralph or Mary Garrison as officers or employees of Garrison Pest Control. SECURE maintains its policy does not provide coverage for this incident because the Garrisons' bringing the dog to the business premises and subsequently failing to supervise the dog were personal to the Garrisons and did not originate with any risk connected with their employment. SECURE further argues Mary Garrison is not an insured under the policy because she was not an executive officer, director, or employee acting within the scope of her official duties when this incident occurred.
SECURE overlooks, however, the Garrisons' role as owners of the business. "One who controls the use of property has a duty of care not to harm others by its use." Nesbitt v. Lewis, 335 S.C. 441, 446, 517 S.E.2d 11, 14 (Ct. App. 1999) (quoting Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997)). "The responsibility for an injury negligently caused by a defect or dangerous condition or activity in or on real property usually attaches to the owner or possessor, by virtue of his control thereof . . . ." 62 Am. Jur. 2d Premises Liability ยง 4 (1990).
Along with her husband, Mary Garrison owned sixty percent of the stock in Garrison Pest Control. Therefore, the Garrisons, along with one other shareholder, controlled what took place on the premises of Garrison Pest Control. Garrison Pest Control, the named insured on the SECURE policy, through its owners and officers, allowed the Garrison family pet on the business premises, thereby creating a dangerous condition. Garrison Pest Control had a duty to take reasonable care to protect the public from dangerous conditions it allowed to exist on the premises. Therefore, SECURE had a duty to defend Garrison Pest Control, its named insured, because of its potential liability for the dog bite.
This holding is not inconsistent with our reasoning that Farm Bureau's policy does not exclude coverage because the dog bite did not "arise out of" Garrison Pest Control's premises. As previously stated, "arising out of" is narrowly construed in policy exclusions to mean caused by the premises. However, SECURE's policy provides coverage for "'bodily injury ' caused by an accident . . . on premises you own or rent." (Emphasis added). The policy further states SECURE "will make these payments regardless of fault." Therefore, the SECURE policy is not limited to injuries caused by the premises, but includes all injuries sustained on the premises unless the injury meets certain policy exclusions, none of which are applicable to this case.
Furthermore, a person may recover against a property owner under a premises liability theory for the personal tortious conduct of an employee or guest on the premises if the owner knows or has reason to know of the occurrence. See Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E.2d 61 (1984);
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