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Strictly Construing the Policy, Falling Through a Defective Manhole (Located in the Parking Lot) Into the Building’s Septic System Was Not Subject to the “Parking Lot” Exclusion from Coverage—The Claim Did Not Arise from the “Ownership, Maintenance or Use” of the Parking Lot, But Rather Arose from the “Operations Necessary or Incidental” to the Insured Building

The Second Department determined that the exclusion of a parking lot from a bodily injury insurance policy did not apply to the failure of a manhole cover in the parking lot.  Plaintiff’s decedent drowned in the leaching pool below the manhole. The leaching pool and manhole cover were deemed to be part of the building’s septic system.  Therefore the claim arose from operations necessary or incidental to the building, and not out of the “ownership, maintenance or use” of the parking lot:

The policy provided coverage for bodily injury “arising out of . . . [t]he ownership, maintenance or use of the premises . . . and operations necessary or incidental to those premises.” The policy excluded coverage for claims “arising out of . . . [t]he ownership, maintenance or use of [a specified parking lot] or any property located on these premises; [or] Operations . . . necessary or incidental to the ownership, maintenance or use of those premises” (hereinafter the parking lot exclusion). * * *

Exclusions to coverage must be strictly construed and read narrowly, with any ambiguity construed against the insurer … . “[T]o negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case'” … . …

Since the allegedly defective manhole cover and leaching pool into which the decedent fell were part of the building’s septic system, the decedent’s claim arose out of operations necessary or incidental to the building, and not out of the “ownership, maintenance or use” of the rear parking lot. Thus, strictly construing the parking lot exclusion and reading it narrowly, it does not apply … . Lancer Indem. Co. v JKH Realty Group, LLC, 2015 NY Slip Op 03331, 2nd Dept 4-22-15

 

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