A: Presuming the vehicle was still listed on the policy as a covered auto and shown in the declarations, and since the named insured is an insured for the use of any auto, if your insured is found liable, the PAP will apply. There is no applicable exclusion based on the information you have provided. As for collision coverage, as long as the car is a covered auto by definition and the PAP has collision coverage and there is no applicable exclusion based on the facts of the accident, the PAP will apply to a collision claim.

Sixteen Acres of Wrong Crop Removed

Q: Our policyholder removed a crop of fruit bearing trees (sixteen acres of jujube) on the claimant's land. Afterwards the claimant advised the policyholder that it removed the wrong crop and that the claimant seeks compensation for loss of trees and production. We believe that exclusion j. (5) under CG 00 01 12 07 applies. Do you agree?

New Jersey Subscriber

A: In determining whether an occurrence is an accident, courts have focused on whether the injury is expected or intended by the insured, rather than whether the acts were intentional. In other words, it is the property damage, not the act, which must be neither expected nor intended from the standpoint of the insured. Here, the named insured was not advised until after the fact that it had cut down the wrong trees. Thus, while insured may have intentionally cut 16 acres of jujube, insured did not anticipate or intend the injury which resulted.

Exclusion j(5) is not applicable because it concerns ongoing operations. Here, the property damage was discovered after the insured finished his work, so this would be a completed operations claim. In sum, the property damage was the result of an occurrence and as an operations completed claim, exclusion j(5) is not available to exclude coverage.

Heating Service Overfills Oil Tank

Q: I have a homeowners claim that is insured with ISO form HO 03 04 91.

The cause of loss is an oil spill resulting from overfill by home heating oil delivery. The oil truck was unloading oil and overfilled the tank. There was about a five-gallon spill from the top of the tank located in the finished basement. The asbestos floor tile will need to be removed, along with other interior finishes. There was oil leaking through the slab and now under it so that there is oil in the soil under the basement. The carrier denied the claim based on the pollutant exclusion 2, e. (5), “unless caused by a peril insured against in Coverage C named peril.” I feel that there is a case to be made for a vehicle loss.

Illinois Subscriber

A: You are correct, the loss was caused by a vehicle and should be covered. The vehicle peril in the homeowners form is one of the broadest perils in the industry—it has no restrictions or exclusions attached to it. The oil could not have been there had it not been for the vehicle, so the vehicle is the cause of loss.