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Gunther v. Metropolitan Casualty Insurance Co.

Decided: November 5, 1954.

MONROE GUNTHER AND MADELINE GUNTHER, PLAINTIFFS,
v.
METROPOLITAN CASUALTY INSURANCE COMPANY, A CORPORATION OF NEW YORK, DEFENDANT



Motion for summary judgment.

Gaulkin, J.c.c. (temporarily assigned).

Gaulkin

Plaintiffs contend that, upon the proper construction of the insurance policy sued upon, they are entitled to summary judgment.

The facts are not in dispute. Plaintiffs' part-time maid was injured while at work in plaintiffs' home. She filed a petition for workmen's compensation. Plaintiffs, contending that the policy which had been issued to them by defendant obligated defendant to indemnify them against such a claim, forwarded the petition to defendant. Defendant refused to defend plaintiffs on the ground that the policy does not cover workmen's compensation claims. The maid thereafter received an award from the Workmen's Compensation Division, and the plaintiffs in this action ask that the defendant pay the amount of the award.

The policy, headed "Comprehensive Personal Liability Policy," contains the following pertinent provisions.

The policy on its face shows that it was designed to cover residence locations. Item 5 of the declarations states that "No business pursuits are conducted at the premises." Item 7 asks for "the number of full time residence employees," to which the answer is "none." The coverage, for "A Liability" is "$10,000 each occurrence," while for "B Medical Payments" it is "$250 each person."

"Coverage A -- Liability" is defined as the obligation

"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of use thereof."

"Coverage B -- Medical Payments" is defined as the obligation

"To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident * * *."

sustained (among others) "by a residence employee while engaged in the employment of an insured. * * *"

Under coverage A the company undertakes to

"defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof * * *."

Under the heading "Exclusions" the policy provides that it does not apply:

"(a) to any business pursuits of an insured * * *

(b) to (1) automobiles while away from the premises * * * (2) watercraft * * *, while away from the premises, or (3) aircraft, or the loading or unloading of any of the foregoing; but, with respect to injury sustained by a residence employee while engaged in the employment of the insured, parts (1) and (2) of this exclusion do not apply, and part (3) applies only while such employee is engaged in the operation or maintenance of aircraft; * * *

(d) to bodily injury to or sickness, disease or death of (1) any employee of the insured while engaged in the employment of the insured, if benefits therefor are either payable or required to be provided under any workmen's compensation law; or (2) any residence employee of the insured while engaged in the employment of the insured if the insured has in effect on the date of the occurrence a policy providing workmen's compensation benefits for such employee; * * *."

It is agreed that the plaintiffs did not have in effect on the date of the occurrence any policy other than the one sued upon.

The "Exclusions" further provide that the policy does not apply:

"(e) under coverage A, to liability assumed by the insured under any contract or agreement * * *"

(g) under coverage B, to bodily injury to or sickness, disease or death of (1) any person while engaged in his employment if benefits therefor are payable under any workmen's compensation law; * * * or (3) any person, other than a residence employee, if such person is regularly residing on the premises * * *."

Plaintiffs' argument may be summarized as follows. Although exclusion (d)(1), standing by itself, clearly excludes a workmen's compensation award to "any employee," the insertion of exclusion (d)(2), to cover "residence employees" specially must be held to mean that defendant meant to take

the special class "residence employees" out of the general class "any employee" mentioned in (d)(1), and therefore, although workmen's compensation claims by employees generally are not covered by the policy, workmen's compensation claims of residence employees are covered if the policyholder has no ...


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