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Miller v. O'Brien8/2/2005
sserts that non-owned auto liability coverage under the policy was limited to partners and executive officers of Holden Animal Clinic and did not extend to ordinary employees.
Numerous provisions in the Businessowners Liability Coverage Form and two endorsements modifying that form are relevant to this inquiry. The "Who Is An Insured" section of the "Businessowners Liability Coverage Form" states that " ach of the following is also an insured . . . our 'employees', other than either your 'executive officers' . . . or your managers . . ., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business." Accordingly, under this provision, O'Brien would qualify as an additional insured so long as he was acting within the scope of his employment or was performing duties related to the animal clinic. The "Exclusions" section of the "Businessowners Liability Coverage Form", however, states: "This insurance does not apply to . . . g. 'Bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and 'loading and unloading.'" Thus, under the base policy form, no coverage would be afforded for any damages resulting from an automobile accident involving any insured, including O'Brien.
The "Businessowners Liability Plus Endorsement" states that it modifies the insurance provided under the "Businessowners Liability Coverage Form". In relevant part, the "Businessowners Liability Plus Endorsement" states:
Section C. Who Is an Insured, paragraph 2.a. is replaced by the following:
a. Your "employees" or volunteer workers, other than either your "executive officers" . . . or your managers . . ., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" is an insured for:
(1) "Bodily injury" or "personal injury":
(a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co-"employee" or co-volunteer worker while that co-"employee" or co-volunteer worker is either in the course of his or her employment or performing duties related to the conduct of your business;
(b) To the spouse, child, parent, brother or sister of that co-"employee" or co-volunteer worker as a consequence of paragraph (1)(a) above;
(c) For which there is any obligation to share damages with or repay someone else who must pay damage because of the injury described in paragraphs (1)(a) or (b); or
(d) Arising out of his or her providing or failing to provide professional health care services. However, if you have "employees" who are pharmacists in your retail drugstore operation, they are insured with respect to their providing or failing to provide professional health care service.
(2) "Property damage" to property:
(a) Owned, occupied or used by,
(b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees" or volunteer workers, any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company).
The only change made to the "Businessowners Liability Coverage Form" by this provision was to change section 2.a.(1)(d) to provide coverage to employee pharmacists involved in the insured's "retail drugstore operation" rather than those
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