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Vitale v. Jefferson Insurance Company of New York8/18/2000
amed insured is designated in the declarations as other than an individual, partnership or joint venture, [a person insured is] the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;
. . . ."
Again, although Clara was named as the insured, was operating Second Mom as a sole proprietorship and was married to Dennis, and although a spouse of a named insured is a "person insured" under the Jefferson policy, appellants claim that the failure to designate Clara as an individual or a sole proprietor in the space provided for such designations is determinative of whether Dennis may be a "person insured" for the purpose of the exclusion. We disagree.
The plain language of section II(a) defines a "person insured" as both an individual designated on the declarations page and the individual's spouse, provided they are conducting business for the insured sole proprietorship. We conclude that Dennis falls within the purview of section II(a) because he is the spouse of Clara, an individual named on the declarations page, and apparently conducting business for the insured sole proprietorship, Second Mom. Indeed, the declarations page of the policy designates the "Named Insured" as "Second Mom Child; Clara Moor." Implicit in this designation is the fact that Clara is an individual. Further, because Second Mom is in actuality a sole proprietorship, and not a joint venture or partnership (implicating section II(b)), or a corporation (implicating section II(c)), section II(a)'s definition of "persons insured" is applicable.
Thus, the failure to check the box on the declaration sheet denominating the named insured as either an individual or as a sole proprietorship is not determinative of coverage.
Accordingly, we conclude that Dennis was a "person insured" under the policy because he falls within the purview of section II(a).
Waiver of an otherwise applicable exclusion
Appellants alternatively contend that Jefferson waived its right to deny coverage under the automobile exclusion provision because Jefferson did not designate the "persons insured" in its 1993 written denial of coverage. We conclude that Jefferson did not waive its right to assert this automobile exclusion by failing to define "persons insured" in its letter denying coverage.
In Intel Corp. v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1561 (9th Cir. 1991), the Ninth Circuit Court of Appeals held that an insurer did not waive its right to rely on a different policy exclusion because the insurer informed its insured that "the pollution exclusion," a standard and unambiguous exclusion, was applicable. In its reasoning, the Intel court clarified the decision in McLaughlin v. Connecticut General Life Insurance Co., 565 F. Supp. 434 (N.D. Cal. 1983), in stating that waiver applies only in instances where the insurer engaged in misconduct, such as "sandbagging" or failing to investigate a claim, or where the insured relied on an insurer's misrepresentation to his detriment. 952 F.2d at 1559-60. We agree with the Intel court that an insurer does not waive its right to assert an exclusion where it has provided its insured with adequate notice of an unambiguous exclusion.
In the present case, like the insurer in Intel, Jefferson promptly informed the Moors that it was denying coverage based on exclusion (b) -- a standard and unambiguous automobile exclusion provision common to general liability policies. Although Jefferson's 1993 letter denying coverage did not specifically identify the "persons insured" for purposes of exclusion (b), we cannot say that such failu
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