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Varda v. Acuity6/1/2005
In Smith, the plaintiffs contended that the exclusion for accidents occurring off the insured location did not apply to a deadly snowmobile crash because the snowmobile drivers' intoxication and the failure to put a helmet on a young passenger were independent concurrent causes. Id. at 331-32. We rejected that argument, concluding that " ithout the operation of the snowmobile off an insured location, the injury would not have occurred, intoxication and lack of a helmet notwithstanding." Id. at 332.
The same principle holds true here. Without the operation of the excluded risk, the riding mower, the cutting deck could not have caused the stone to fly up and injure Varda. Varda points out that the mower can be in motion while the cutting deck is not engaged and that the deck can be engaged without the mower being in motion. But neither of these facts alters the reality that, in this case, the cutting deck could not have turned a stone into a dangerous projectile unless it was part of the riding mower, an excluded risk.
By the Court.--Judgment and orders affirmed.
Recommended for publication in the official reports.
Ordered published (07-27-2005).
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