| Q&A of the Week |
BOP Coverage for Damaged Walls
A Massachusetts subscriber recently asked the following question:
We have an insured with a BP 00 03 07 02. The insured suffered damage to two retaining walls by a vehicle. One of the walls is attached to the structure and the other wall is not. The insured is looking for coverage under his policy for both walls. Would you please advise as to your opinion as to whether or not these walls would be covered under the policy?
ANSWER: The ISO Building and Personal Property Coverage Form, CP 00 10, specifically lists retaining walls that are not part of a building as property not covered, but the BOP makes no mention of retaining walls either attached or not. It is our opinion that an attached or unattached retaining wall could be considered an outdoor fixture, and thus covered under the building portion of the policy. |
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| Litigation Watch |
Homeowners Policy and Coverage for Assault and Battery Claims
An employee filed a complaint against a co-worker claiming that the co-worker committed continuous assaults and batteries on the employee at the place of employment. This case is Love v. Sirey, 119 So.3d 732 (2013).
Love filed a complaint for personal injuries against Sirey claiming that Sirey committed continuous assaults and batteries on Love through inappropriate comments and bodily contact; these alleged acts occurred at the workplace. Sirey contacted her homeowners insurer, State Farm, for defense and coverage.
State Farm initially defended Sirey but then filed a declaratory judgment action asserting that coverage defenses precluded coverage. The trial court granted State Farm's summary judgment motion and this appeal followed.
Sirey contended that the trial court erred in its finding that the acts claimed in the complaint against the insured did not constitute an insurable occurrence under the policy provisions. The Court of Appeal of Louisiana, Fifth Circuit, noted that State Farm argued that the acts of battery and assault were intentional in nature and thus, did not constitute an occurrence as defined in the policy. The appeals court said that the policy defined "occurrence" as an accident but the policy did not define "accident." Moreover, the definition of "occurrence" did not specifically exclude assault and battery. Therefore, considering the precise language of the policy and the allegations set forth in the complaint, the court ruled that the homeowners policy did not unambiguously or clearly exclude Love's claims from coverage as an insurable occurrence. The court found that the trial court erred in this instance.
Sirey also said that the trial court erred in finding that the claims against her did not result in bodily injury as defined in the policy. State Farm contended that the emotional distress claimed by Love was excluded since the definition of "bodily injury" stated that the term did not include emotional distress or mental distress. However, the appeals court pointed out that Love claimed unwanted bodily contact and also claimed that Sirey's acts caused Love to be disabled. Love also claimed that due to fear and anxiety, she developed a physical injury, namely loss of her bodily functions. The court said that the policy did not unambiguously exclude coverage for these claims and the trial court erred in its findings. |
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