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Maroney v. New York Central Mutual Fire Insurance Co.10/27/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The issue presented by this appeal is the meaning of the words "arising out of" in an "uninsured premises" exclusion contained in a homeowners insurance policy. Here we hold that "arising out of" includes use of the premises (as urged by the insurer), and is not limited to the physical condition of the premises (as urged by the insured).
On June 19, 1997, a horse being led by Deborah Morris kicked the six-year-old plaintiff, Mark Maroney, in the forehead. Deborah Morris was an owner of Soft Meadow Stables, a business that boarded horses for a fee. The barn and stable had been built on property owned by the Morrises, located across the road from their residence. Before the establishment of Soft Meadow Stables, that property had been insured as part of a homeowners policy secured from defendant, New York Central Mutual Fire Insurance Company (NYCM). In May 1997, once the Morrises began boarding horses for a fee, the policy was amended to remove coverage for the property where the barn and stable were located. The Morrises obtained a separate property and liability policy covering the barn and stable from Broome County Co-operative Fire Insurance Company (BCC). The agent who placed the insurance was Deborah Morris's mother; she testified that the change was made because of the horse-boarding business on the property, explaining that NYCM does "not do that type of insurance."
Fourteen-year-old Ashley Hoke, daughter of insured Deborah Morris, had agreed to care for the infant plaintiff during the summer of 1997. On the day of his injury, coincidentally the first day Ashley was to care for the child, Mark and his mother arrived at the Morris residence at about 6:30 a.m. While Ashley was getting herself ready for the day, Deborah Morris took the child across the road to the barn and stable where she proceeded to feed and turn out two boarded horses. As Deborah Morris was leading one of the horses to pasture, the horse kicked the infant plaintiff in the forehead, causing serious injury.
After the accident, Deborah Morris notified both BCC and NYCM of the injury. NYCM subsequently disclaimed coverage based on the policy's "business pursuits," "uninsured premises" and "home day care services" exclusions. The infant plaintiff, represented by his mother, Marsha Maroney, initiated a personal injury action against the Morrises. Marsha Maroney then brought suit against NYCM seeking a declaration that NYCM had a duty to defend and indemnify the Morrises in the underlying personal injury action. NYCM counterclaimed and commenced a third-party action against the Morrises, also seeking a declaration of its obligations under the policy.
Supreme Court held that the exclusions did not apply, and ordered NYCM to defend and indemnify the Morrises. A divided Appellate Division reversed, concluding that the injury "arose out of" the uninsured premises and, therefore, the exclusion was applicable. We granted plaintiffs leave to appeal and now affirm.
Initially, "'in policies of insurance ... if any one exclusion applies there can be no coverage'" (Monteleone v Crow Constr. Co., 242 AD2d 135, 140-141 [1st Dept 1998] quoting Zandri Constr. Co. v Firemen's Ins. Co., 81 AD2d 106, 109 [3d Dept 1981] affd sub nom Zandri Constr. Co. v Stanley H. Calkins, Inc., 54 NY2d 999 ). Here, the homeowners policy's "uninsured premises" exclusion provides in pertinent part that coverage for personal liability does not apply "to bodily injury or property damage . . . arising out of a premises.
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