58 Mass. App. Ct. 818 | Mass. App. Ct. | 2003
The plaintiff brought an action for declaratory relief in the Superior Court to determine whether the plaintiff was under a duty to defend and indemnify Patricia Trimble
We recite those facts that are not in dispute. At the time of the incident, Button and Trimble were employed by CliniTech Services, Inc., where Button worked as a lab assistant and Trimble as a phlebotomist. On September 27, 1995, Button was working at her desk at CliniTech’s facility when Trimble arrived there to deliver lab specimens for processing. After delivering the specimens, Trimble walked past Button, who was engrossed in her work. Trimble poked Button to get her attention and said, “Hello.” Startled, Button fell backwards off her chair and suffered a severe back injury. At the time of Button’s injury, Trimble was living in her parents’ home. Her parents were insured through a homeowners’ policy issued by the plaintiff. The pertinent provisions of the policy read as follows:
“SECTION n - LOSSES WE DO NOT COVER
“2. bodily injury or property damage arising out of or in connection with your business activities. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.”
Under the general definition of the policy, “ ‘[business’ or ‘business purposes’ means: 1. Any full or part time activity of any kind engaged in for economic gain, and the use of any part of any premises for such purposes.”
A liability insurer has a duty to defend its insured in the
The terms “arising out of” and “in connection with” are not be to be construed narrowly but are read expansively in insur-
Given the expansive meaning of “arising out of” and “in connection with,” it is clear that the business pursuits exclusion applies because the alleged battery inflicted by Trimble is associated with, related to, and linked to Trimble’s performing work for her employer. It is incontrovertible that if Trimble had not been performing a task for her employer she would not have been on her employer’s premises at that time and place and the injury to Button would not have occurred. Cf. Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 412 (1990) (claims against two employees of a child care facility alleging injuries to children as the result of the employees’ negligent failure to protect and prevent injury from sexual molestation to the children under their care fell within the “business pursuits” exclusion of their respective homeowner’s insurance policies); Commerce Ins. Co. v. Finnell, 41 Mass. App. Ct. 701, 702-703 (1996) (“business pursuits” exclusion under a homeowner’s policy barred coverage for a child’s injuries that occurred while the insured in her own home was babysitting the child but was preparing her own lunch).
Button contends that the “business pursuits” exclusionary clause is ambiguous standing alone, when read in the context of the entire insurance contract, or as applied to the subject matter, and must be strictly construed against the insurer. “However, an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to” the other party’s interpretation. Jefferson Ins. Co. of N.Y. v. Holy-oke, 23 Mass. App. Ct. 472, 475 (1987). The interpretation of
At oral argument, Button also argued that the definition of “business” or “business purposes” in the business pursuits exclusion restricts the exclusion to business activity engaged in by the insured on the insured’s premises. However, that construction makes no sense when the contract is read as a whole, for the contract provides optional coverage which, when purchased by an insured for certain business pursuits, specifically excludes therefrom business pursuits for one acting as a member of the faculty or teaching staff of any school or college or providing care anywhere to one or more persons for economic gain. Those exclusions would be redundant or unnecessary if the term “business” under the policy was limited solely to an income earning activity on the insured’s premises. We, thus, reject Button’s interpretation. See Worcester Mut. Ins. Co. v. Mamell, 398 Mass. 240, 245 (1986), quoting from Sherman v. Employers’ Liab. Assurance Corp., 343 Mass. 354, 357 (1961) (“an interpretation [that] gives a reasonable meaning to all of
Further, it is a “long-standing rule of construction that the favored interpretation of an insurance policy is one which ‘best effectuates the main manifested design of the parties.’ Clearly, the manifest design of homeowners’ insurance is to protect homeowners from risks associated with the home and activities related to the home.” Ibid., quoting from King v. Prudential Ins. Co., 359 Mass. 46, 50 (1971). Here, the battery resulting in Button’s injury is in no way associated with the home or related to it. Cf. Worcester Ins. Co. v. Fell Acres Day Sch., Inc., 408 Mass. at 412. Accordingly, Trimble could not reasonably have expected protection under her homeowner’s policy from a claim arising out of or in connection with her work. Summary judgment for the plaintiff was appropriate.
Judgment affirmed.
Patricia Trimble was named as a defendant in the complaint. However, she did not file an appearance or answer in this case.