Several employees of an organization were putting up an artificial Christmas tree on the premises when a component of the tree fell off and damaged the auto of one of the employees. The organization turned the claim in to its CGL carrier. The adjuster denied the claim, citing the following exclusion [emphasis added]:
“Property damage” to:
Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property.
According to the denial letter, “The vehicle that was damaged is owned by an insured. There is no coverage to property owned by an insured.”
This is actually NOT what the exclusion says. There is no coverage for property YOU own. “You” is a term defined in the policy as follows [emphasis added]:
Throughout this policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.
The statement that there is no coverage to property owned by “an” insured is not correct since the individual whose vehicle was damage was not a Named Insured on the Declarations or elsewhere in the policy.
When the agent pointed this out to the adjuster, the response was, “The issue is that he is an insured, and qualifies as ‘you’ as he was participating in the activity which led to the incident. An insured can not be liable to themselves, and property owned by an insured is excluded.”
This too is not supported by any language in the policy. “You” is a special, defined class of insured. The International Risk Management Institute (www.irmi.com) discusses an almost identical claim in Dakota Fire Ins. Co. v. J&J McNeil, LLC, 849 N.W.2d 648 (2014) where the South Dakota Supreme Court ruled that the term “you” applies only to the Named Insured.
RTFP! (And understand what you’re reading.)
Photo by http://www.christmasmarine.com/
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