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Martinez v. Employers Insurance of Wausau10/8/1999
(1961), the question here is whether Subsection I(2) of the policy affords coverage for Appellants' emotional distress claims. This provision of the policy clearly does not.
An issue in the declaratory judgment action was whether bodily injury or property damage claims would be covered by any of Wausau's policies issued to LCC. The circuit court did not consider the property damage claims in relation to Subsection I(2) of the Cemetery Professional Liability Insurance Endorsement, which is applicable to the property damage claims for the policy period; and it erred in not doing so.
Appellants contend that the circuit court also erred in denying coverage under the multi-peril policies issued to LCC from September 1, 1983, through September 1, 1987.
According to the court:
Wausau issued the special multi-peril policies to Defendants from September 1, 1983, through September 1, 1987. * * * Such coverage does not apply to "property sold by the insured under conditional sale, trust agreement, installment payment or other deferred payment plan, after delivery to customers" . . . .
The multi-peril policies also provided general liability coverage for bodily injury and property damage "to which this insurance applies, caused by an occurrence," as defined by the policy. Under the provisions of the multi-peril policies, "bodily injury" is defined as "bodily injury, sickness or disease sustained by any person which occurs during the policy period . . . ." "Property damage" is defined as "(1) physical injury to or destruction of tangible property which occurs during the policy period, . . . or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period." An "occurrence" is as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." The comprehensive general liability insurance does not apply to damage to property "in the care, custody, or control of the insured or as to which the insured is for any purpose exercising physical control."
The multi-peril policies provided insurance coverage for unintended acts, accidents, and property damage occurring on its premises during the policy periods. They do not provide coverage for any of the damages alleged by the Plaintiffs. The claims for contractual or commercial losses are not covered. Since the plots were placed in the care, custody and control of the Defendants, any claims related to them are expressly excluded from coverage under the multi-peril coverage. The "bodily injury" contemplated in the policy clearly pertains to injuries sustained from occurrences on the cemetery premises; and the "occurrences" clearly pertain only to those which were not expected or intended by the Defendants. Any damages awarded in this action would be the result of finding liability for the systematic overburials and removal of remains and memorials, which would not be covered under the multi-peril policies. It is also obvious that such coverage was not contemplated under the multi-peril insurance, since the Defendants attached a cemetery professional liability insurance endorsement to the multi-peril coverage. (Emphasis original.)
Appellants fault the circuit court's analysis, citing Brown Foundation v. St. Paul Ins. Co., Ky., 814 S.W.2d 273 (1991), and arguing that Wausau's multi-peril policies provided coverage unless it is proved that LCC's officers not only intended their acts, but also the consequences of their acts. The Supreme Court held in Brown that it was a question of
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