Randolph v. Nationwide Mut. Fire Ins. Co., 1

• Decision Date: 30 September 1997
• Docket Number: No. 1,1
• Parties: , 1997 N.Y. Slip Op. 7830 Linda RANDOLPH, as Executrix of the Estate of Charles A. Haug, Deceased, Respondent, v. NATIONWIDE MUTUAL FIRE INSURANCE CO., Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 650

662 N.Y.S.2d 650

242 A.D.2d 889, 1997 N.Y. Slip Op. 7830

Linda RANDOLPH, as Executrix of the Estate of Charles A.

Haug, Deceased, Respondent, v. NATIONWIDE MUTUAL FIRE INSURANCE CO., Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Sept. 30, 1997.

O'Shea, Reynolds & Cummings by Nelson Schule, Buffalo, for appellant.

Abbot, Tills & Knapp by Kenneth Knapp, Hamburg, for respondent.

Before DENMAN, P.J., and HAYES, CALLAHAN, DOERR and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly granted plaintiff's motion for summary judgment, declaring that defendant must defend and indemnify plaintiff's decedent in the underlying personal injury action. Contrary to defendant's contention, the stepchild of plaintiff's decedent was not a relative within the meaning of the exclusionary provisions of the homeowner's policy issued to plaintiff's decedent. The stepchild had resided with plaintiff's decedent until both died from carbon monoxide poisoning in March 1994. The wife of plaintiff's decedent, who was the adoptive mother of the stepchild, had died the previous year. The stepchild's estate commenced the underlying personal injury action against plaintiff's decedent. In disclaiming coverage, defendant relied on a policy provision that excludes coverage for "bodily injury to you, and to the following who live in your household your spouse, your relatives or any other person under age 21 and in the care of you or your relatives." The policy does not define the term "relative".

In issues of insurance coverage, any ambiguities are construed in favor of coverage (see, Wrigley v. Potomac Ins. Co., 122 A.D.2d 361, 362, 504 N.Y.S.2d 324). "[T]he rule of construction applied to ambiguous terms in insurance contracts strongly favors the insured. 'Where an insurer attempts to limit liability by use of an ambiguously worded term which is subject to more than one reasonable construction, the courts will construe it strictly against the insurer (Sperling v. Great Amer. Ind. Co., 7 N.Y.2d 442, 447 [199 N.Y.S.2d 465, 166 N.E.2d 482] ).' [citations omitted.] This principle holds particularly true in cases where the ambiguity is in an exclusionary clause" (Hollander v. Nationwide Mutual Insurance Co., 60 A.D.2d 380, 384, 401 N.Y.S.2d 336, lv. denied 44 N.Y.2d 646, 406 N.Y.S.2d 1026, 378 N.E.2d 127). The term "relative" has been defined as "a person connected with another by blood or affinity" (Webster's Third New International Dictionary 1916). It also has been defined as a "kinsman; a person connected with another by blood or affinity", and "affinity" is defined as "[t]he connection existing, in consequence of marriage, between each of the married persons and the kindred of the other" (Black's Law Dictionary 59, 1289 ...