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September 9, 2016  

 
 Q&A of the Week
Damage Caused by Bears

An Indiana subscriber recently asked the following question:

If a bear damages the siding on the insured's garage, would this be covered under the homeowner's policy? Would the bear be considered a vermin?


ANSWER: It depends on what policy form you are using. The ISO HO 00 03 10 00 excludes birds, vermin, rodents, and insects. Exclusions are to be read narrowly, and Merriam Webster online defines "vermin" as "a: small, common, harmful, or objectionable animals (as lice or fleas) that are difficult to control; b: birds and mammals that prey on game; c: animals that at a particular time and place compete (as for food) with humans or domestic animals."
The Cambridge Advanced Learner's Dictionary considers "vermin" as "small animals and insects that can be harmful and difficult to control when they appear in large numbers."
Keeping the exclusion for vermin in context with the rest of the exclusion, which is birds, rodents, and insects, bears are nothing like any of those categories, so we would not consider bears to be vermin. The loss should be covered.
 
 Litigation Watch
Comments on the Assault and Battery Exclusion

Kinsale Insurance Company brought an action seeking a declaration that its insurance policy did not require it to defend or indemnify an insured in a lawsuit arising from an alleged battery. This case is Kinsale Insurance Company v. Mojoes of Joliet, 2016 WL 3075097.

Mojoes owns, operates, manages, and maintains an entertainment facility and bar in Joliet. At all times relevant to the complaint, Saunders was employed by Mojoes as a security guard. Kiebles was in the bar one night when Saunders allegedly used physical force and violence to remove Kiebles from the bar, and then continued to assault and batter him on the public walkway outside of Mojoes.

Kiebles suffered severe injuries and sued Mojoes and Saunders. Mojoes sought coverage under its policy with Kinsale Insurance Company. The insurer denied coverage based on the assault and battery exclusion and filed this declaratory judgment action.

The United States District Court for the Northern District of Illinois noted that the assault and battery exclusion provided that the insurance did not apply to any claim or lawsuit for bodily injury arising out of, related to, or in any way involving any actual or alleged assault, battery, harmful or offensive contact or threat caused by or at the instigation, instruction, direction, or due to the negligence of the insured or its employees. According to the insurer, this exclusion precludes coverage in this instance.

The court said that the assault and battery exclusion is very broad and specifically precludes coverage of claims for bodily injury related in any way to an alleged battery. The court also found that the exclusion prevents coverage of any claim that bodily injury was caused in an assault or battery due to the negligent hiring, employment, training, supervision, or retention of any employee of the insured. The court found that no insured offered any reason why the assault and battery exclusion should not be enforced under the facts in this case.

Therefore, the court concluded that the assault and battery exclusion applies to the claims alleged in the underlying lawsuit. The insurer was entitled to a declaration that it is not required to defend Mojoes or Saunders against any claims or to indemnify them for any settlements or judgments resulting therefrom. Summary judgment was granted in favor of Kinsale.

Editor's Note: This case is presented as an analysis of the assault and battery exclusion. The U.S. District Court listed court rulings from both federal and state courts on the interpretation of the assault and battery exclusion in support of its decision to apply the exclusion.
 
 Fraud of the Week
Auto Fraud – Maryland
AMOUNT: $1,000 to $10,000


A Maryland woman has been sentenced to ninety days of home detention and two years of probation for filing a false insurance claim that she was the driver of the vehicle, a Chevrolet Malibu, at the time of an incident. Her husband was sentenced to eight years in prison for second-degree assault and failure to stop at the scene of an accident involving injury for hitting a man in a parking lot and then leaving the scene. Surveillance videos showed the couple pulling into the parking lot, the female going into a store, the victim pulling into the parking lot, getting out of his car, and knocking on the window of the Malibu. The male then backed up the Malibu, hitting a dump truck, pulled forward to hit the victim's vehicle, and then backed up again and drove forward to pin the victim between his own vehicle and the Malibu. The female returned to the vehicle and the two left the scene of the crime. The dump truck driver followed the Malibu until the police could pull it over. The victim suffered injuries that required surgery to mend. Two days later, the female filed an insurance claim saying that she was driving the vehicle at the time of the collision. When the victim filed his own insurance claim, the insurance company realized the initial claim was fraudulent.
 
   
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