Question from an IIABNY member: I am hoping that you can help me with a basic opinion on a complicated HO Liability claim situation. I will try to keep the details simple as follows:
1. Insured has a Homeowners policy on Long Island that has Comprehensive Personal Liability attached.
2. The insured has a separate Homeowners policy with the same carrier on an upstate home.
3. Two years ago, a neighbor to the upstate home was killed while riding an ATV, not on our insured's premises, but on a neighbors premises--a road that has rights of way to each neighbor's parcel.
4. The accident involved the ATV hitting a chain and/or post that was across the road to the other neighbor's property.
5. Our insured is now being sued, along with every other neighbor in the area. The suit alleges that our insured was responsible for maintenance of the road (which he was not at the time of the accident,) and should have known that this post and chain created a dangerous condition.
There are two CPL policies involved. The accident did not happen on the insured premises. The carrier is saying that only one policy will cover this loss. I am thinking that both CPL polices should be involved.
Answer: Interesting question. I’m starting with the definition of “insured location” in the ISO Homeowners 3 policy, which states:
"Insured location" means:
a. The "residence premises"; (NOTE: The one-family dwelling where the named insured resides; the one, two, three or four family dwelling where the named insured resides in at least one of the units; or the part of any other building where the named insured resides, but only if the premises is shown as the “residence premises” in the policy Declarations. It also includes grounds at that location.)
b. The part of other premises, other structures and grounds used by you as a residence; and
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use as a residence;
c. Any premises used by you in connection with a premises in a. and b. above;
d. Any part of a premises:
(1) Not owned by an "insured"; and
(2) Where an "insured" is temporarily residing;
e. Vacant land, other than farm land, owned by or rented to an "insured";
f. Land owned by or rented to an "insured" on which a one, two, three or four family dwelling is being built as a residence for an "insured";
g. Individual or family cemetery plots or burial vaults of an "insured"; or
h. Any part of a premises occasionally rented to an "insured" for other than "business" use.
Both a. and b. require the premises to be shown in the policy Declarations unless the named insured acquired them during the policy period. The adjacent roadway sounds as if it fits into c. None of d., e., f., g., or h. seem to apply. Therefore, a home is an “insured location” under both policies only if the Declarations for both policies lists it.
Exclusion 4 in Section II—Liability Coverages states that Personal Liability Coverage and Medical Payments To Others Coverage do not apply to:
"Bodily injury" or "property damage" arising out of a premises:
a. Owned by an "insured";
b. Rented to an "insured"; or
c. Rented to others by an "insured";
that is not an "insured location"
Because of this exclusion, the policy covering the Long Island home will not provide Personal Liability Coverage for an injury arising out of the upstate home unless that home is an insured location under the policy (i.e., is scheduled in the Declarations.) Assuming that the policy covering the Long Island home does not list the upstate home on its Declarations, I agree with the carrier.