Allstate Insurance Co. v. Kelsey

WARREN, J.,

dissenting.

I believe that the majority is wrong on several counts.

First, there is doubt as to what was intended by the exclusion and the exception to the exclusion contained in this policy. The provision excludes coverage for “business pursuits” but provides that “activities normally considered non-business” are covered. The exclusion and the exception appear often in homeowners’ policies and have been the subject of considerable litigation in the context of “babysitting.” See, e.g., Camden Fire Ins. Ass’n v. Johnson, 294 SE2d 116 (W Va 1982); Stanley v. American Fire & Casualty Co., 361 So2d 1030 (Ala 1978); Gulf Insurance Co. v. Tilley, 280 F Supp 60 (ND Indiana 1967), aff’d 393 F2d 119 (7th Cir 1968), and other cases cited in Annot., 48 ALR3d 1096 (1973).

The disputed issue in those cases and in this case is the meaning of the phrase “activities normally considered non-business.” The disagreement arises over whether we are to look at the “activity” which caused the injury, in this case, *356the fall of a ladder, or the “activity” being engaged in as a business pursuit, in this case, child care.

In taking the latter view, the majority equates the terms “pursuit” used in the exclusion and “activity” used in the exception. In arriving at the decision to exclude coverage, it inquires whether Loper’s child care is a business pursuit. Having decided that it is, it asks whether that child care was an activity normally considered non-business. After the first answer, the second comes as no surprise.

I take a different view for several reasons. First, I would infer from the fact that the insurer used substantively different terms in drafting the exclusion and the exception that it intended different meanings. The provision can fairly be read to say that there is no liability with respect to “business pursuits,” but that coverage will be extended to some act or omission not ordinarily associated with, although causally connected to, the insured’s business pursuit. Second, I would infer from the fact that the company provided an exclusion and an exception to that exclusion that they intended the exception to have some meaning. To have any meaning at all, there must be some act or omission that is covered, even though it somehow is connected with a “business pursuit.” The majority finds no coverage, because supervision of children ordinarily is incident to the business pursuit of supervising children. That reasoning renders the exception meaningless by making the same inquiry twice. I can imagine no “activity” that would ever be covered under that approach.

Third, the majority incorrectly interprets Safeco Ins. Co. v. Leslie, 276 Or 221, 554 P2d 469 (1976), to support its view. In Leslie, a truck driver employed at a service station was wounded when a gun discharged after he accidentally knocked it to the floor. The gun had been brought to the service station by an attendant, Leslie, who placed it under his coat in the supply room. After concluding that Leslie’s work at the service station was a business pursuit, the court inquired further whether the exception for “activities * * * ordinarily incident to non-business pursuits” required coverage despite the exclusion. In applying that exception to the exclusion, the court looked to Leslie’s purpose for bringing the handgun to work. Because he had stated that he wanted a gun at the service station to protect large amounts of cash which accumulated at *357the station on Friday nights, the court reasoned that he had the gun at the station incident to a business purpose and that the exception to the exclusion would not require coverage in that case.

Following that analysis, I conclude that injuries incurred in connection with business pursuits are not covered when the activity which causes harm is in the business context for a business purpose. The other side of that proposition is that, when the harm producing activity is in the business context for a non-business purpose, there is coverage. This is much the same analysis that the majority finds not well reasoned in Gulf Insurance v. Tilley, supra, where the insured was caring for a child in her home for compensation and the child sustained burns when she overturned a percolator.

Under Tilley and Leslie, injuries that occur while the insured is engaged in a business pursuit are not excluded from coverage if the particular activity which caused the injury is incident to a non-business purpose. Applying that analysis to these facts results in coverage, because the cause of Tyler’s death was the fall of a ladder that both parties agree was used exclusively in the non-business activity of berry picking and was not used for baby care in any manner.

I conclude that it is reasonable to interpret “activity” to mean the particular activity which allegedly caused the harm. Where two interpretations are reasonable, we are directed by ther well-established rule of law to construe the policy for the benefit of the insured. Western Fire Insurance Co. v. Wallis, 289 Or 303, 308, 613 P2d 36 (1980). That is especially true when the provision in dispute creates an exclusion from coverage under the general terms of the policy. Stanford v. American Guaranty Life Ins. Co., 280 Or 525, 527, 571 P2d 909 (1977). To be effective, an exclusion in an insurance contract must clearly bring the particular act or omission within its scope. I cannot find that clarity in this case.

Further, even if the majority properly focuses on child care as the relevant activity, I believe it reaches the wrong conclusion. According to the majority’s reasoning, the issue is whether caring for children is an activity normally *358considered non-business despite the fact that in this particular situation it is a “business pursuit.” Given the clear intention by the insurer that some activities “normally considered non-business” are to be covered even though they are “business pursuits,” I would find home care of children to be an activity normally considered non-business.

The California Supreme Court in Crane v. State Farm Fire and Casualty Company, 95 Cal Rptr 513, 485 P2d 1129, 1131 (1971), stated:

“* * * Indeed, it is difficult to conceive of an activity more ordinarily incident to a noncommercial pursuit than home care of children.”

In Crane, the court found that the medical expenses of a child injured while being cared for for compensation by the named insured, was covered under a homeowner’s policy. It did so, notwithstanding that the policy excluded “business pursuits” of insureds under the exception to the exclusion relating to “activities * * * which are ordinarily incident to non-business pursuits.” I believe that home care of children is an “activity normally considered non-business.” Accordingly, I conclude that the majority is wrong for two reasons. First, the harm producing activity, i.e., the placement of the ladder, was not incident to a business purpose. Second, the activity of caring for children in one’s home or that of a neighbor’s is normally considered non-business, even though it is sometimes done for compensation.

I would reverse.

Rossman, J., joins in this dissent.