American Family Insurance v. National Casualty Co.

PARKER, Judge

(dissenting).

I respectfully dissent. My reading of the policy language is that it unambiguously excludes liability coverage for a resident relative such as Brian unless he is acting as a day-care provider at the time his operative act is performed.

The majority opinion strains to avoid this exclusion by distinguishing between an Insured and an insured; the majority interprets the capitalized title to apply only to the primary (named) insured and the lower-case title to resident relatives. No authority is cited for this construction. The majority urges illustratively that if no such distinction is drawn, this would lead to the absurd result that the child himself would be excluded from coverage. But we are construing liability insurance coverage, and the child (or his representative) is a claimant, not one who is “legally obligated to pay * * * damages because of bodily injury.”

The negligent activities of resident relatives in a home day-care operation are clearly foreseeable by a liability insurer. Surely the insuring risk is far greater if a liability policy provides coverage for the negligent acts of such persons causing injury to a child in the day-care program. The premiums assessed would necessarily reflect such broad coverage. To find such coverage by implication where the exclusion seems clearly designed to disclaim it imposes a considerable risk on an insurer, for which premiums presumably (in the light of the exclusionary language) have not been paid.

I would reverse and hold American Family to be the primary insurer by reason of its homeowner’s coverage. Brian’s operative act of negligence was to put down a cup of hot coffee within reach of a child while he was on the premises of a home day-care operation in which he was not employed. Such liability is typically covered by homeowner’s insurance.