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Miller v. O'Brien8/2/2005
employed in the insured's "retail druggist or drugstore operation". The "Businessowners Liability Plus Endorsement" also provides that paragraph 1.g.(2) of Section B. Exclusions is to be replaced to state:
This exclusion does not apply to:
(2) A watercraft you do not own that is:
(a) Less than 51 feet long; and
(b) Not being used to carry persons or property for a charge;
The "Businessowners Liability Plus Endorsement" also adds language to paragraph k of Section B. Exclusions to provide that paragraphs (3), (4) and (6) of the exclusion do not apply to property damage arising out of the use of elevators.
Finally, the "Hired Auto and Non-Owned Auto Liability" endorsement provides that it modifies the insurance provided in the Businessowners Policy. That endorsement states:
NON-OWNED AUTO LIABILITY
The insurance provided under the Businessowners Liability Coverage Form, Paragraph A.1. Business Liability, applies to "bodily injury" or "property damage" arising out of the use of any "non-owned" auto" in your business by any person other than you.
The endorsement defines a "Non-Owned Auto" as "any 'auto' you do not own, lease, hire or borrow which is used in connection with your business. However, if you are a partnership, a 'non-owned auto' does not include any 'auto' owned by any partner." The "Hired Auto and Non-Owned Auto Liability" endorsement goes on to state:
For insurance provided by this endorsement only:
1. The exclusions, under the Businessowners Liability Coverage Form, Paragraph B.1. Applicable to Business Liability Coverages, other than exclusions a., b., d., f. and i. and the Nuclear Energy Liability Exclusion, are deleted and replaced by the following:
2. WHO IS AN INSURED in the Businessowners Liability Coverage Form, Paragraph C., is replaced by the following:
Each of the following is an insured under this endorsement to the extent set forth below:
a. You;
b. Any other person using a 'hired auto' with your permission;
c. For a 'non-owned auto', any partner or 'executive officer' of yours, but only while such 'non-owned auto' is being used in your business; and
d. Any other person or organization, but only for their liability because of acts or omissions of an insured under a., b. or c. above.
None of the following is an insured:
(2) Any partner or 'executive officer' for any 'auto' owned by such partner or officer or a member of his or her household;
(4) The owner or lessee (of whom you are a sublessee) of a 'hired auto' or the owner of a 'non-owned auto' or any agent or 'employee' of any such owner or lessee; . . .
In its "Judgment as to Summary Judgment", the trial court found that (1) O'Brien was an "insured" as defined under the liability plus endorsement because he was an employee performing duties in relate to the clinic at the time of the accident, (2) the truck was a "non-owned auto" as defined in the "Hired Auto and Non-Owned Auto Liability" endorsement, and (3) the auto exclusion in the base policy had been deleted by the "Hired Auto and Non-Owned Auto Liability" endorsement. The court found that the definition of an "insured" contained in the liability plus endorsement replaced the definition of "insured" contained in the "Hired Auto and Non-Owned Auto Liability" endorsement because the copyright date on the liability plus endorsement was later in time than that on the "Hired Auto and Non-Owned Auto Liability" endorsement and because the ambiguity created by the two definitions should be construed
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