Hanover Ins. Co. v. Cowan
| Decision Date | 01 April 1991 |
| Citation | 172 A.D.2d 490,568 N.Y.S.2d 115 |
| Parties | HANOVER INSURANCE COMPANY, Appellant-Respondent, v. Edie COWAN, etc., et al., Defendants-Respondents, Jeanette D'Amico, et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Russo & Tanenbaum, P.C., Westbury (Ted J. Tanenbaum and Thomas M. Cooper, of counsel), for appellant-respondent.
D'Amato, Forchelli, Libert, Schwartz, Mineo and Joseph F. Carlino, Mineola (Donald Jay Schwartz and Marjorie E. Bornes, of counsel), for respondents-appellants.
McCabe & Cozzens, Mineola (Stephen McCabe, of counsel), for respondents Lawrence Moser and Sybil Moser.
Before BROWN, J.P., and KOOPER, HARWOOD and MILLER, JJ.
MEMORANDUM BY THE COURT.
In an action for a judgment declaring that the plaintiff Hanover Insurance Company is not obligated to defend or indemnify the defendants Jeanette D'Amico and Martin D'Amico under a homeowners' policy issued to the D'Amicos for claims arising out of alleged injuries sustained by a child for whom they were babysitting, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Hand, J.), dated October 23, 1989, as denied its motion for summary judgment, and the defendants Jeanette D'Amico and Martin D'Amico cross-appeal from so much of the order as denied their cross motion for partial summary judgment with respect to the plaintiff's duty to defend them.
ORDERED that the order is modified, on the law, by deleting the provision thereof which denied the cross motion for summary judgment and substituting therefor a provision granting the cross motion to the extent of finding that the plaintiff has a duty to pay the reasonable costs of the respondents-appellants' defense in the action commenced by Edie Cowan, as Guardian Ad Litem for Lauren Moser, in the Supreme Court, Suffolk County, Index No. 88-12582, and is required to compensate them for the costs already incurred for their defense in that action; as so modified, the order is affirmed, with one bill of costs, payable by the plaintiff to the respondents-appellants and the respondents appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Suffolk County, for an assessment of costs already incurred by the respondents-appellants for the defense in that action.
On July 14, 1987, Lauren Moser, an infant, was allegedly injured while under the care and supervision of defendants Jeanette and Martin D'Amico. Jeanette D'Amico babysat for the child on an almost daily basis and was paid two dollars an hour for this service. The D'Amicos were insured under a homeowners' policy issued by the plaintiff. This policy contained an exclusion for injuries "arising out of business pursuits of an insured". The policy also contained a narrow exception to the exclusionary clause which provided coverage for "activities which are usual to non-business pursuits". The plaintiff, relying on the business pursuits exclusion, commenced this action for a judgment declaring that it had no obligation to defend or indemnify the D'Amicos for claims brought on behalf of the infant Moser.
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