Insured Property or Insured Location

The insured owns a two family /two story dwelling that is insured on an HO 03 04 91. The insured lived on the first floor and rented the second floor, but then moved out and rented the first floor as well. No notice was given to the carrier about the change in the situation. The second floor tenant tripped and fell down the common area stairs. The policy states in Section II that Exclusions indicate Coverage E does not apply to bodily injury arising out of the rental or holding for rental of any part of any premises by an “insured”. The exclusion exception however extends coverage to rental or holding for rental of an “insured location”:…(2) In part for use only as a residence, unless a single family unit is intended for use by the occupying family to lodge more than two roomers or boarders.

The carrier maintains that the injury to the tenant is not covered because the insured location was used to lodge more than two roomers or boarders. We disagree. This is a two story/two family structure. The first floor tenant is a single male occupant. The second floor tenant is a three-person family consisting of husband, wife, and adult son. Does coverage apply?

New York Subscriber

Before counting the number of bodies in each unit, we need to go back to the definition of insured location. “Insured location” is defined as the “residence premises”, which is defined as the one family dwelling and grounds where the insured resides and is shown in the declaration. It also includes a 2 family dwelling as long as the insured lives in one of the units. In your situation neither fits, so the dwelling is not a “residence premises”. Going to the remainder of the “insured location” definition, the dwelling isn't an other premises used by the insured as a residence, it isn't a premises used in connection with 4.a. and b., it's not a premises not owned by someone else but where an insured is living, and it's not vacant land, land where a dwelling is being built, or cemetery plots. So while the property in question may be listed on the declaration as insured property, it's not an “insured location” or “residence premises”, and in order for coverage E to apply, the occurrence must have happened on the “insured location”. Technically it didn't, so there's no coverage.

 

For reference, the exception for the exclusion is referring to a situation where the renters are subletting a room to other boarders. For example, the insured rents a single-family unit to Joe and his family, Mary and Lisa. Joe then takes in 3 roomers – Matt, Frank, and Lou. Because Joe, the tenant, has taken in more than 3 roomer/boarders, there is no coverage since this has violated the exception to the exclusion.   

 

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