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Property damage caused by riding lawnmower
Q: The insured is a lawnmower repair company. The insured went to a customer’s home to pick up his riding lawnmower. The insured back his truck/trailer up to load the mower. The insured got on the riding lawnmower and put it in drive and the mower went in reverse through the garage door damaging it. Does this fall under exclusion g. (Aircraft, Auto or Watercraft) under the CGL form regarding loading and unloading? Also is the mower considered a mechanical device? Lastly, would it fall under subsection a. of the definition of mobile equipment?
A: Exclusion g is for autos and a riding lawnmower is not an auto. By definition, the lawnmower is mobile equipment. So, in this instance, if the insured is liable for the damage to the door, there is no exclusion to prevent coverage. Any damage to the mower itself is not covered due to the care, custody, or control exclusion.
Auto coverage or CGL coverage?
Q: If the mechanized arm from a garbage truck causes bodily injury or property damage, does this fall under the auto coverage or the general liability coverage?
A: The answer is that the claim would be handled under the BAP.
The BI or PD resulted from the use and ownership of the covered auto. The only exclusions that might apply pertain to the movement of property by a mechanical device or the operation of equipment listed in the mobile equipment definition in the BAP.
The movement of property be mechanical device exclusion is not applicable because the exclusion states that the exclusion does not apply if the device is attached to the covered auto; presumably, this is the case in your scenario.
The operation of equipment listed in the mobile equipment definition refers to things like cherry pickers and air compressors and pumps. The mechanized arm on a garbage truck does not fit into this category.
So, the BI or PD claim would be handled by the BAP.
CGL coverage versus BAP coverage
Q: The insured is an auto club tow and service agency for the general public. They have both a CGL coverage form and a commercial auto policy with us; the latter has a garage-keeper endorsement that may be applicable with primary selection scheduled for collision/comp coverage. The loss is as follows.
This is a two car collision in a Newark NJ parking garage between the 1st and 2nd floor. The insured employee was manually pushing a customer vehicle out of parking garage to the street level so he could tow it. The second vehicle in the accident was a NJ state vehicle. The state employee was coming in the garage and stopped as it approached the customer vehicle.
The customer originally was behind her vehicle as the insured pushed it from the rear. The driver side door was open as the insured was pushing and steering to move the car forward and down an incline to the street level. The insured had difficulty at a turn around and the customer’s car started to roll back. Then, the vehicle started to roll forward and the open door was getting near the stopped state vehicle. The customer ran to the driver’s seat and jumped in but got caught between the door and the seat causing leg injury. The door did strike the other vehicle causing damage.
So, the questions are these: 1. does the CGL section I, exclusion 2.g. for auto or the 2.j.4. care, custody and control exclusion apply; and, 2. does the BAP’s liability exclusion section II B, care, custody or control exclusion apply to the customer’s car assuming applicable coverage for maintenance or use of the customer car?
New Jersey Subscriber
A: The CGL exclusion g, the auto exclusion, is questionable since it requires that the insured own or operate or rent or have loaned to him an auto. The only possible thing here is saying the insured was operating the car and we are of the opinion that pushing a car is not actually operating it. At the very least, the term would be ambiguous in this instance and the insured has the benefit of any reasonable doubt.
Exclusion j4, the care, custody, or control exclusion, is also not applicable in our opinion. The insured did not have care, custody or control of the car in this instance since the owner of the car was in the car at the time of the accident and there was no control of the car since it crashed into another car. And, since the insured did not have care, custody, or control of the car under the terms of the CGL form, the same goes for the auto policy. Now, you might assume there was maintenance or use of the covered auto and that may be true, but we are of the opinion that this is a stretch. Pushing a car is not maintenance and use may be in order but since we think the insured was not actually operating the car, we don’t see any use of the car either.
As for the GKLL coverage, we have a problem with that since the insuring agreement calls for the car to be left in the care of the insured. Again, just pushing a car is not really having the car in the insured’s care, especially since the owner was in the car at the time of the accident.
Based on how you describe this accident, we are of the opinion that the CGL form is the one to check for coverage since the operations of the insured may have caused damage to another’s property. Of course, the insured has to be legally obligated to pay for the damages before the CGL form applies.