Nationwide Mutual Fire Insurance v. Nunn

442 S.E.2d 340, 114 N.C. App. 604, 1994 N.C. App. LEXIS 453
CourtCourt of Appeals of North Carolina
DecidedMay 3, 1994
Docket9315SC831
StatusPublished
Cited by19 cases

This text of 442 S.E.2d 340 (Nationwide Mutual Fire Insurance v. Nunn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mutual Fire Insurance v. Nunn, 442 S.E.2d 340, 114 N.C. App. 604, 1994 N.C. App. LEXIS 453 (N.C. Ct. App. 1994).

Opinion

WYNN, Judge.

This case presents the question of whether the business exclusion provision in their homeowners insurance policy prevents appellants from recovering for liability incurred while operating a business on their insured premises.

In the fall of 1986, defendants-appellants Geraldine Nunn, her husband, Irvin L. Nunn, and his mother, Hallie W. Nunn, moved to an estate known as Windy Oaks Farm, in Chatham County, North Carolina. They purchased homeowners insurance for the house from plaintiff Nationwide Mutual Fire Insurance Company. In May of 1987, while living in part of the house, the Nunns began operating a bed and breakfast establishment, the Windy Oaks Inn, in another wing of the house. They also began hosting receptions and dinners there. They have continuously operated the Windy Oaks Inn as a bed and breakfast establishment and reception site since 1987.

On 6 May 1990, the Nunns hosted a wedding reception at the Windy Oaks Inn. Although the reception ended at 7:00 p.m., approximately ten people remained and requested permission to stay on the premises longer. Geraldine Nunn gave them permis *606 sion to stay. At approximately 10:00 p.m., she asked these remaining guests to leave. One of these guests, Vali McKnight, was bitten by a dog as she left the premises. Geraldine Nunn testified that she had' been temporarily keeping the dog, which belonged to her brother. Nunn, a registered nurse, immediately tended to Ms. McKnight. She then obtained further medical assistance for Ms. McKnight and permitted the other guests, who were too inebriated to drive, to stay on the premises for the night. McKnight sued the Nunns for injuries sustained from the dog bite. On 27 August 1992, plaintiff Nationwide initiated this action seeking declaratory judgment that, due to a business use exclusion provision in the Nunns’ homeowners policy, Nationwide has no obligation to defend the suit and no liability for any judgment rendered in it.

The insurance policy provides general coverage for liability arising from accidents occurring on the premises. However, the policy contains the following exclusion provision for liability arising out of or in connection with a business engaged in by the Nunns:

Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
b. (1) arising out of or in connection with a business engaged in by an insured. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.

We initially consider whether the Nunns were engaged in a business. The insurance policy sets out the following definition: “ ‘Business’ includes trade, profession or occupation.” The facts indicate that the Nunns had regularly rented out rooms and held banquets and receptions on the premises for some two years before the dog bite incident. Geraldine Nunn testified that they held ten receptions there in 1989 and twelve in 1990. The 6 May 1990 reception itself was a commercial event. The Nunns did not personally know the reception participants, and they were financially compensated for providing the site, food, and service. We conclude that, under the terms of the policy, giving receptions was a business engaged in by the Nunns.

*607 The next question is whether McKnight’s injuries “arose out of” or were “in connection with” this business. The meaning of specific language used in an insurance policy is a question of law for the court. Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E.2d 518 (1970). We first address the phrase “arising out of.” Our Supreme Court interpreted this phrase in State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 350 S.E.2d 66 (1986). In that case, defendant Anderson was standing talking to some fellow deer hunters when he saw a deer. He ran to his truck and reached behind the seat to get a rifle he had stored there. As he touched the stock of the rifle, it fired, and a bullet struck his companion, McKinnon. A claim was made under Anderson’s homeowners liability policy, which excluded coverage for injury “arising out of the ownership, maintenance, use, loading or unloading” of a motor vehicle. Id. at 537, 350 S.E.2d at 68. The Court relied on the two following legal principles. First, ambiguous terms of an exclusion provision are to be construed against the insurer. Id. at 547, 350 S.E.2d at 73; Wachovia Bank & Trust Co. v. Westchester Fire Insurance Co., 276 N.C. 348, 172 S.E.2d 518 (1970). The Court found that the phrase “arising out of” is ambiguous. State Capital, 318 N.C. at 547, 350 S.E.2d at 73-4. Second, coverage will not be denied where there is more than one cause of an injury and only one of the causes is excluded. That is, in order to exclude coverage under the policy, “the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury.” Id. at 546, 350 S.E.2d at 73. In State Capital, this principle meant that coverage would not be excluded if there was a proximate cause of the injury that did not “arise out of” the use or unloading of the automobile. Because the Court found that the injuries could have arisen out of Anderson’s mishandling of the rifle, it concluded that coverage should not be denied under the exclusion provision.

Here, although McKnight’s claim may have arisen out of the Nunns’ business operation, the injury could also have arisen out of negligent supervision of the dog, which has not been linked in any way to the business. Because this additional proximate cause exists, coverage is not excluded under the “arising out of” clause.

Next, we look at the phrase “in connection with.” This phrase has been held to have a much broader meaning than “arising out of.” See, e.g., Cameron Mut. Ins. Co. v. Skidmore, 633 S.W.2d 752 (Mo. App. 1982). In Skidmore, the insured burned some old *608 fertilizer sacks on his farm and the fire spread to a neighbor’s adjoining property, damaging a building and fixtures. The insured’s personal liability policy contained an exclusion for “any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an insured.” Id. at 753. The court excluded coverage, reasoning:

In the manner that the words are ordinarily used [the insured’s] acts were “in connection with” the farm. [The insured] was there to check the crop because of his ownership interest in the farm. The sacks were brought to the property and emptied there because their contents were used on the farm. They were burned on the farm.

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Bluebook (online)
442 S.E.2d 340, 114 N.C. App. 604, 1994 N.C. App. LEXIS 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-fire-insurance-v-nunn-ncctapp-1994.