dissenting.
It is my view that the policy taken as a whole, vis-á-vis the matter at issue, is ambiguous and is to be construed most favorably in favor of the insured. As noted in the majority opinion, any doubts as to coverage are construed against the insurer.
State Farm understandably takes the position that the Supreme Court’s remand in Bruce II did not instruct the trial court “to determine if Murl’s child care services were occasional, but whether [T.B. ⅛] care was occasional.” Appellee’s Br. at 15. This is certainly one construction to be placed upon the remand but the remand itself is not so crystal clear. It says simply that “We ... remand for a hearing on the merits of the childcare exclusion and occasional care exception.” Bruce II, 762 N.E.2d at 1233-34. This phrasing could be construed to embrace both a determination as to the insured in whose care T.B. was at the time and whether, as to that insured, the care being given was occasional or not.
One reading of the child care exclusion applicable to “any insured” would seem to make it applicable if the child were in the care of “any insured,” i.e. either Vicki or Murl. However, under a construction most favorable to the insureds in this instance, Murl as an “any insured” provided “occasional” care, and therefore the “child care” exclusion did not apply. Accordingly, the State Farm policy would provide coverage to Murl for the molesting incident although Vicki would be outside the coverage by reason of the exclusion.
This latter reasoning is consistent with the terminology of the severability provision. It states that the insurance “applies separately to each insured.” Thus there would appear to be no prohibition within the policy itself against there being coverage as to one of the two insureds but not as to the other.4
In light of these considerations, I would reverse the decision of the trial court and remand for further proceedings not inconsistent with the views expressed herein.
. One might pose the hypothetical question as to whether it would be possible for T.B. to be in the non-occasional care of Vicki, and at the same time, i.e., at the time of the molest, be in the occasional care of Murl. On the other hand, one might wonder whether being in the general overall and non-occasional care of Vicki at the time in question trumps what may have been the momentary actual physical care afforded by Murl at the time. In the latter event the application of the exclusion to Vicki would seem to carry with it the application of the exclusion to Murl so as to prevent any recovery by the Bruce under the policy. Despite the interesting but speculative questions, we need not decide those matters. Suffice it to say that such inquiries tend to place the policy in a posture of ambiguity.