Opinion by
Plaintiffs, Sean, Tracey, and Peter S. Rodriguez, appeal a summary judgment entered in favor of defendant, Safeco Insurance Company of America. We affirm.
In 1987, Peter, then a three-month-old infant, suffered a traumatic head injury that resulted in severe brain damage while he was being cared for by Laura Brimmer, who operated a licensed child day care business in her home. Brimmer had in effect liability insurance for her day care business under a $500,000 policy issued by Scottsdale Insurance Company and homeowner’s insurance under a policy issued by Safeco.
Brimmer notified both insurance companies of the injury and of plaintiffs’ subsequent damage claim in which plaintiffs alleged that she had negligently failed to provide proper care and supervision for Peter. Scottsdale undertook Brimmer’s defense of plaintiffs' claims, but Safeco denied coverage under the homeowner’s policy.
Plaintiffs’ claim against Brimmer was settled without trial by entry of a stipulated judgment in favor of plaintiffs in the amount of $875,000. The judgment also provided for assignment of Brimmer’s rights under the Safeco homeowner’s policy to plaintiffs.
After Scottsdale paid the $500,000 limits of the business insurance policy in partial
I.
Plaintiffs contend that the trial court erred as a matter of law in concluding that the language of the Safeco homeowner’s policy did not provide coverage for Peter’s injuries. We disagree.
Summary judgment is proper only if the pleadings, affidavits, and other materials presented establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Continental Air Lines, Inc. v. Keenan,
An insurance policy is a contract which must be interpreted consistently with settled principles, and absent the manifestation of a contrary intention within the four corners of the contract, the words used in the policy must be accorded their plain and ordinary meaning. If a contract is clear and unambiguous, a court should not rewrite it so as to arrive at a strained construction.
Chacon v. American Family Mutual Insurance Co.,
The pertinent facts underlying this action are not in dispute. Brimmer publicly advertised and regularly conducted a state-licensed commercial business providing day care services for children in her home. She reported her earnings from that activity as business income on state and federal tax returns and purchased liability coverage for the business from Scottsdale. As part of her established business activities, she had provided care for Peter in exchange for compensation on a regular basis for some time prior to the date of his injury.
On the morning of Peter’s injury, the child’s mother left him, apparently in good health, in Brimmer’s care. Brimmer fed the child without incident, and placed him alone in a crib in a bedroom of her residence for a nap while she conducted routine household activities and generally watched and cared for other day care children inside the house. About two hours after putting the child down for his nap, she returned to the bedroom where she found him still in his crib but pale, limp, lethargic, and experiencing difficulty breathing.
After some delay, Brimmer contacted the child’s mother, who then arranged for a medical examination that revealed his head injury. There is no evidence indicating how the trauma was inflicted or that anyone other than Brimmer had contact with the child or was inside the bedroom during the two-hour period of his nap.
The Safeco homeowner’s policy provides personal liability and medical payments coverage for injuries to persons who are in Brimmer’s home with her permission. However, the policy expressly excludes coverage for injuries “arising out of business pursuits of any insured” except for “activities which are ordinarily incident to non-business pursuits.”
It is undisputed that the injury occurred on the insured premises while Peter was there with the permission of the insured. It is also undisputed that the injury occurred while Peter was under Brimmer’s care in the course and within the scope of her business pursuits.
Initially, we note that an assignee of rights under a contract has no greater rights than those of his or her assignor.
Matson & Mulhausen Construction Co. v. Boulevard National Bank,
Thus, the sole issue is whether, under these undisputed facts, any basis exists to support an inference that Peter’s injury was caused by “an activity ordinarily incident to a nonbusiness pursuit” as provided by the exception to the exclusion of coverage under the Safeco policy.
One line of authority relied upon by plaintiffs is represented by
Crane v. State Farm Fire & Casualty Co.,
“Indeed, it is difficult to conceive of an activity more ordinarily incident to a noncommercial pursuit than home care of children.”
That interpretation, however, gives no effect to the policy language providing a “business pursuits” exclusion from coverage in the event of a bona fide business providing home care for children. Its effect is to accord coverage for activities related to child care whether they are performed as a part of a “business pursuit” or not. Under that rationale the “nonbusiness pursuits activities” exception swallows up the “business pursuits” exclusion so as to render it ineffectual and meaningless with respect to child care activities.
A second line of cases, represented by
Republic Insurance Co. v. Piper,
“It seems to me and I find that nothing could be more a part of the business of operating a day care home than supervision of the children under the licensee’s care, and it was while supervising the child that the tort occurred.”
That rationale presents the obverse of the Crane, supra, analysis, in that it proceeds from the premise that any and all activities employed during the care and supervision of children in a commercial day care operation must necessarily fall within the “business exception” to coverage, without regard to whether such activities are “ordinarily incident to non-business pursuits.” Thus, under that interpretation, any act or omission by a day care operator that causes an injury to a child while under day care supervision is excluded from coverage.
In our view, both the
Crane, supra,
and
Piper, supra,
analyses fail to give rational meaning to the entirety of the language of the insurance contract clause in question.
See Gandy v. Park National Bank,
We believe a better approach is provided by those authorities adopting a “particular activities” test to determine liability in these kinds of cases.
See Gulf Insurance Co. v. Tilley,
No specific non-business activities attributable to Brimmer have been alleged or demonstrated as the causative force of Peter’s injury. Hence, we conclude that even if the trial court erred by applying the Piper, supra, standard in analyzing the undisputed evidence, the decision would not be altered by application of the “particular activity” standard which we now adopt.
II.
Plaintiffs next contend that the trial court erred in determining that they bore the burden of proving facts bringing them within the exception to the policy exclusion. We disagree.
Here, as in Watkins, supra, because the undisputed facts demonstrate the applicability of the exclusion to coverage, it was incumbent upon the insured, or her assignees, to demonstrate the existence of facts supporting an exception to the exclusion.
III.
Plaintiffs finally contend that the trial court erred in concluding that the policy in question was unambiguous. We disagree.
If the meaning of an insurance policy is expressed in plain, certain, and readily understandable language, it must be enforced as written.
Northern Insurance Co. v. Ekstrom,
The mere fact that the parties differ in their interpretation of an instrument does not, of itself, create an ambiguity.
Radiology Professional Corp. v. Trinidad Area Health Ass’n,
The judgment is affirmed.