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Dwello v. American Reliance Insurance Company12/28/1999
olicy and granted the American Reliance petition for declaratory relief. Dwello filed this timely appeal.
DISCUSSION
Whether the baby-sitting in this situation triggers the business pursuits exclusion in the homeowner's insurance policy is a question of fact for the trial court. Only when this finding is clearly erroneous will this court reverse. See Trident Construction v. West Electric, 105 Nev. 423, 426, 776 P.2d 1239, 1241 (1989). The exclusion provision in the insurance policy is clear and unambiguous, and it is for the trial court to determine whether the homeowner is engaged in a "business pursuit." Other courts that have addressed the issue are divided on the question of whether baby-sitting falls within the business pursuits exception. In Carroll v. Boyce, 640 A.2d 298 (N.J. Super. Ct. App. Div. 1994), the New Jersey appellate court applied a two-factor test to determine whether the baby-sitting in question fell within the business pursuits exception. The two factors that the court considered are: (1) whether the pursuit involves a continuity or customary engagement in the activity; and (2) whether the activity involves a profit motive. Id. at 300. We agree that these are the appropriate factors to consider. The findings of fact made by the district court show that those factors were considered when the court found that Kenyon was engaged in a business pursuit within the meaning of the exclusion in the American Reliance policy. We conclude that there was substantial evidence to support the district court's findings.
Dwello also argues that the dog bite was an exception to the business pursuits exclusion since it was one of the " ctivities which are ordinarily incidental to non-business pursuits." A babysitter's primary role is to maintain a safe, healthy environment and to keep the child out of harm's way. While the babysitter's services are engaged, the babysitter maintains a continuous duty to provide for the child. The dog bite was related to negligent supervision, and was not "incidental to non-business pursuits." Thus, the exception to the exclusion does not apply.
Therefore, we affirm the judgment of the district court that American Reliance had no duty to defend or indemnify the Kenyons under the homeowner's insurance policy pursuant to the business pursuit exclusion.
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