The carrier denied the claim, stating that the exception to the motor vehicle exclusion—a vehicle used to service the insured's residence—does not apply because the insured was not doing the digging. We think the loss should be covered. May we have your opinion?

Illinois Subscriber

A

We believe the exception to the exclusion is open to interpretation. Use is not defined in the policy, so the broadest interpretation must be given. Many courts have held that use does not necessarily mean actual operation of a vehicle; in other words, an insured may by using a vehicle when a domestic employee runs an errand for the insured. (See, for example, BATS, Inc. v. Shikuma, 617 P.2d [Hi. App. Ct. 1980], where it was determined that the vehicle in question was being operated to serve a purpose of the insured. Therefore, it was being used by him.)

To service means “to repair or provide maintenance for,” according to Webster's Collegiate Dictionary, Tenth Edition, and that was the action leading to the loss.

Because of the definition and the possible interpretation of use, we believe the loss is covered. The insurer can certainly subrogate against the backhoe operator.

This does not mean that any vehicle is covered while servicing the premises. A vehicle which is subject to motor vehicle registration—a dump truck, for example—falls outside the exception.

On further note of caution. The ISO 2000 homeowners forms have tightened the exception to the exclusion. The form states there is no coverage for motor vehicle liability “unless the motor vehicle is used solely [emphasis added] to service an 'insured's' residence.” Now, while this language would serve to eliminate coverage for such a scenario as you describe, it also eliminates coverage if a thoughtful insured takes a riding mower to a parent's home to mow the grass and negligently damages the parent's neighbor's parked car. The parent's home is not an insured's residence.