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Twin City Fire Insurance Co. v. Delaware Racing Association12/29/2003
Submitted: November 18, 2003
Upon appeal from Superior Court. AFFIRMED.
Twin City Fire Insurance Company ("Twin City") appeals from an order of the Superior Court granting summary judgment in favor of Twin City's insureds, Delaware Park Racing Association and Delaware Park, LLC, and denying Twin City's cross motion for summary judgment. In ruling for Delaware Park, the trial court held that the exclusion in Twin City's general liability excess policy for "Athletic Activity" did not encompass (and, therefore, that the Twin City policy covered) claims against Delaware Park for personal injuries sustained by three persons who were riding and/or exercising racehorses at Delaware Park. We conclude, for the reasons next discussed, that the Superior Court ruling is correct in all respects and accordingly, we affirm.
Facts
On November 5, 1999, three "breeze riders," Eric L. Jones, Roberto Montiel, and Leah Waldman were injured during a "breeze" when a stray horse that had gotten loose collided with them, causing all horses and riders to fall. A "breeze" is a training exercise in which a horse is run out of a starting gate, usually timed at a speed to the horse's potential. The purpose of the breeze ride was to exercise the horses' muscles and to accustom the horses to running in close proximity to one another without being frightened. The riders were not racing the horses, but, rather, were exercising them as part of a morning workout.
Jones and Montiel had been trained and employed as both exercise riders and jockeys. The third rider, Waldman, was employed only as an exercise rider. As a result of the collision, each of these three riders suffered personal injury and filed an action for damages against Delaware Park and others. The Waldman lawsuit was settled for $1.2 million, and the Jones and Montiel lawsuits remain pending. Twin City refused coverage of all these claims based on an exclusion in the excess policy that it had issued to Delaware Park.
By way of background, Delaware Park obtained its statutorilyrequired liability insurance coverage through Lowe-Tillson, an insurance broker that had represented Delaware Park for several years. Through Lowe-Tillson, Delaware Park renewed a two-tiered insurance plan in which CNA Insurance Company ("CNA") provided the primary coverage with limits of $1 million per occurrence, and Twin City provided the excess coverage in a secondary, umbrella policy having limit of $10 million per occurrence. Given those coverages, after the $1.2 million settlement was reached in the Waldman lawsuit, CNA contributed to that settlement its policy limits of $1 million, and Delaware Park then looked to Twin City to pay the $200,000 excess. Twin City denied coverage, based on an exclusion contained in its policy. The language of the exclusion upon which Twin Cities relied in denying coverage reads as follows:
Description of Designated "Athletic Activity":
HORSERACING
The policy does not apply to "bodily injury" to any person while practicing or participating in any "Athletic Activity" shown in the above Schedule. For the purposes of this endorsement, "Athletic Activity" means physical fitness activity including gym classes or similar activities; or a sports or athletic contest or exhibition that you [the insured] sponsor. Delaware Park then filed this coverage action in the Superior Court. After discovery, both sides filed cross motions for summary judgment. After finding that the Twin Cities policy covered the three underlying claims, the Superior Court granted Delaware Park's motion for summary judgment, and denied Twin Cities' cross motion. Twin Cities appealed from the ord
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