North River Ins. Co. v. Poos

Citation553 S.W.2d 500
Decision Date21 June 1977
Docket Number38315 and 38336,Nos. 38314,s. 38314
PartiesThe NORTH RIVER INSURANCE COMPANY, a corporation, Respondent, v. Kenneth POOS, Jean Poos, Wild Canid Survival & Research Center, Inc., Daniel Joseph Mahlandt, a minor, Donald J. Mahlandt and Dorcas Mahlandt, Appellant. . Louis District
CourtCourt of Appeal of Missouri (US)

Merle L. Silverstein, Rosenblum & Goldenhersh, Clayton, for appellants poos.

Evans & Dixon, Eugene K. Buckley, Richard L. Meives, St. Louis, for appellant Wild Canid Survival, etc.

Jack H. Ross, Coleman, Ross, Carey, Goetz & Schaaf, Inc., Clayton, for North River.

P. Terrence Crebs, Gallop, Johnson, Godiner, Morganstern & Crebs, St. Louis, for Mahlandts.

CLEMENS, Presiding Judge.

Defendants appeal a declaratory judgment in favor of plaintiff-respondent, North River Insurance Company. North River sued for a declaration of non-liability under its homeowners' liability insurance policy issued to defendants Kenneth and Jean Poos. This concerned a wolf-bite injury allegedly sustained at their residence by Daniel Mahlandt. The trial court declared coverage was excluded by the policy, 1 and defendants appeal.

Plaintiff-insurer's petition alleged an underlying lawsuit by Daniel Mahlandt and his parents for personal injuries inflicted by a wolf named "Sophie." Sophie was owned by defendant Wild Canid Survival and Research Center, Inc., (hereafter WCS), and was kept by WCS's employee Kenneth Poos at his residence. Plaintiff acknowledged that the Poos' homeowners' policy providing personal liability coverage was in effect when the child was injured. Insurer further alleged it had undertaken to provide a defense for defendant Poos with a reservation of its rights, this relying on the following exclusionary clause of its policy: "This policy does not apply: 1. Under coverage E personal liability . . . d. To bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits."

North River contended the injury was not covered by its policy because Kenneth Poos was an employee of WCS, Sophie's owner; keeping and maintaining her at his residence was a business obligation of his employment; the minor's injury arose out of Poos' business pursuits and such activities were not ordinarily incident to non-business pursuits.

The evidence showed WCS is a not-for-profit corporation devoted to preserving wild canids and Sophie was used as an exhibit in educational programs. Kenneth Poos was obliged to care for Sophie, that is to feed, water and keep her clean and he was paid a yearly salary plus expenses incurred in keeping her. Defendant Poos had left Sophie chained to a fence post inside his enclosed yard and was not home when the child was injured.

The trial court declared coverage for this injury was excluded by the terms of the policy and defendants have appealed.

Our threshold concern is whether the bodily injury claim is excluded from coverage by the "business pursuits" exclusion. This depends on whether Poos' keeping and caring for Sophie at his residence was incidental to his employment.

Defendants' out-of-state cases would require Poos to have had a profit motive in keeping Sophie at his residence, holding this to be a necessary element of the term "business pursuits." Salerno v. Western Casualty & Surety Company, 336 F.2d 14 (6) (8th Cir. 1964); Allied Mutual Casualty Company v. Askerud, 254 Minn. 156, 94 N.W.2d 534 (5) (1959); Lane v. Hartford Fire Insurance Company, 343 F.Supp. 79 (11) (Mo., E.D. 1972); Home Insurance Company v. Aurigemma, 45 Misc.2d 875, 257 N.Y.S.2d 980 (7) (1965).

Blatt v. Metropolitan Life Ins. Co., 413 S.W.2d 533 (1) (Mo.App. 1967), decided the issue of when an accidental injury "arises out of" employment. In that case an insurance salesman, while driving his automobile to solicit and collect funds had a mechanical failure and was injured while making repairs. The court concluded that an accidental injury "arises out of" employment when there is a causal connection between the employment and injury. An insured meets this requirement when the injury is "the rational consequence of an act incidental to his employment." The court concluded the insured's...

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9 cases
  • Salimbene v. Merchants Mut. Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • July 14, 1995
    ...held that an insured is engaging in a business pursuit when his activities are "incidental to his employment" (North River Ins. Co. v. Poos, 553 S.W.2d 500, 501-502 [Mo.Ct.App.]; American Family Mut. Ins. Co. v. Nickerson, 813 F.2d 135, 136; see also, Annotation, Construction & Application ......
  • State Farm Fire & Cas. Co. v. Moore
    • United States
    • United States Appellate Court of Illinois
    • December 28, 1981
    ...related to or associated with the insured's business pursuits. (Annot., 48 A.L.R.3d 1096, 1099, 1107 (1973); North River Insurance Company v. Poos (Mo.App.1977), 553 S.W.2d 500.) Activities resulting from babysitting frequently fall within this exception. (Annot., 48 A.L.R.3d 1096, 1099-110......
  • Economy Fire & Cas. Co. v. Beeman
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 10, 1981
    ...(no coverage where insured's activation of power brake on sheet metal machine injured fellow employee); North River Insurance Co. v. Poos, 553 S.W.2d 500 (Mo.App.1977) (insurer not liable to child bitten by wolf kept by insured since insured was obligated, as an employee of the Wild Canid S......
  • New Jersey Property Liability Guaranty Ass'n v. Brown
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 6, 1980
    ...the exception to activities not associated with the insured's business pursuits in any way, a position taken in North River Ins. Co. v. Poos, 553 S.W.2d 500 (Mo.App.1977), and criticized in 7A Appleman, Insurance Law and Practice, § 4501.10 (1980 Pocket Part at 32, n. 8.15). See, also, Mart......
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