 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Truck Insurance Exchange v. Gagnon8/23/2001
insurance company has waived any argument that the policy in this case excludes coverage for sexual harassment. We reject this argument. The policy, issued to a different Tomato Café and expressly excluding coverage for sexual harassment, was issued in 1997, a year after the events giving rise to this case. The policy in force at the specific location, and for the relevant time period, is the policy that governs this case. Smith has cited no authority that would require us to hold that the insurance company has waived its right to rely on the policy in force at the location at which, and during the time, the sexual harassment occurred. Smith relies on Modisette v. Foundation Reserve Ins. Co., 77 N.M. 661, 427 P.2d 21 (1967), Empire West Cos. v. Albuquerque Testing Labs., Inc., 110 N.M. 790, 800 P.2d 725 (1990), Shaeffer v. Kelton, 95 N.M. 182, 619 P.2d 1226 (1980), and McMullen v. United Brotherhood of Carpenters & Joiners of Am., 34 N.M. 523, 285 P. 489 (1930). These cases are not on point. Modisette involved misrepresentations by an insured in an insurance application. Empire West Cos. and Shaeffer are not insurance cases, and involve acceptance of work that was already performed. McMullen held that a union was estopped from denying membership to a member when it had accepted his dues for sixteen years.
CONCLUSION
We reverse and remand with instructions to enter summary judgment in favor of the insurance company.
IT IS SO ORDERED.
IRA ROBINSON, Judge
WE CONCUR:
RICHARD C. BOSSON, Chief Judge
M. CHRISTINA ARMIJO, Judge
|