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Dwello v. American Reliance Insurance Company12/28/1999
As amended January 4, 2000.
ALISA DWELLO, AS PARENT AND GUARDIAN AD LITEM FOR STEFANIE LAWRENCE, APPELLANT,
V.
AMERICAN RELIANCE INSURANCE COMPANY, AN ARIZONA CORPORATION, PATTY KENYON, AND STEVE KENYON, RESPONDENTS.
Law Offices of Frank C. Cook, Las Vegas, for Appellant. Pico & Mitchell and Daniel E. Carvalho, Las Vegas; John & Elizabeth Foley Law Offices, Las Vegas, for Respondents.
Before Maupin, Shearing and Becker, JJ.
The opinion of the court was delivered by: Per Curiam:
Cite as: Dwello v. American Reliance Insurance Co.
115 Nev. Adv. Op. No. 58
Appeal from declaratory judgment following a bench trial adjudicating dispute over the extent of coverage of a homeowner's insurance policy. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Affirmed.
OPINION
FACTS
Alisa Dwello (Dwello) is a single working mother caring for her eleven-year-old daughter, Stefanie Lawrence (Stefanie). When Stefanie was seven years of age, Dwello asked her neighbor, Patty Kenyon (Kenyon), to care for Stefanie while Dwello worked. Kenyon agreed and cared for Stefanie from 6:00 a.m. to 4:00 p.m. five days a week for approximately one month at the rate of $50.00 per week. Kenyon's baby-sitting revenues for Stefanie's care accounted for forty percent of her total monthly income. In July, 1995, Kenyon's dog attacked Stefanie, severely injuring Stefanie's face, head, and eye.
In August, 1995, Dwello filed a complaint against Kenyon and her husband alleging that they failed to adequately protect Stefanie from their dog, knowing its propensity to bite, and that they failed to inform Dwello that the dog had bitten other children.
The Kenyons forwarded the complaint to the carrier of their homeowner's insurance policy, American Reliance Insurance Company (American Reliance), seeking indemnity and defense. In March, 1996, American Reliance filed an action for declaratory judgment alleging that they had no duty to defend or indemnify the Kenyons. The Kenyons then filed for Chapter Seven bankruptcy . In September, 1996, the district court allowed Dwello to intervene in the declaratory judgment action.
In July, 1997, the district court held a one-day bench trial to adjudicate the declaratory relief action. American Reliance argued that the "business pursuits" provision in the homeowner's policy shielded American Reliance from liability.
That provision states:
"Comprehensive Personal Liability Coverage and Medical Payments to Others Coverage Does Not Pay for Bodily Injury or Property Damage:
Arising out of your business pursuits. This also includes your occasional or part-time business pursuits.*fn1"
The Kenyons argued that Kenyon would have watched Stephanie without compensation, if necessary, and thus the business pursuits exclusion was inapplicable. Likewise, Dwello argued that the exclusion did not apply because Kenyon was unlicensed, only watched one child not her own, and did not advertise.
The district court found that Kenyon watched Stephanie from 6:00 a.m. to 4:00 p.m. for one month and was paid at the rate of $50 per week. Further, the court determined that the payment was for services rendered and constituted approximately forty percent of Kenyon's total monthly salary. On the basis of these findings, the district court concluded that Kenyon was engaged in a business pursuit within the meaning of the exclusion in the American Reliance p
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