Our client has an open perils inland marine policy. The carrier has declined coverage, stating that “the machine was not able to support the load from 'any' position.” It is agreed that the operator made an error in opening the cutting head too early, which is what caused the tree to fall. The carrier believes “any position” includes while the cutting head is open.

It is also agreed upon that the load of the machine was not exceeded. The machine is capable of handling a tree twenty-eight inches in diameter or less, and this tree was twenty-four inches in diameter.

Do you think this loss should be excluded?

Wisconsin Subscriber

From what you describe, it is our opinion that the loss resulted from operator error, which is not excluded by the policy. Even if “any position” included the cutting head being open, which we do not believe would be included as a position, the entire exclusion requires that loss must result when the weight of the load exceeds the designated capacity, which you state the parties agree did not happen. Thus, the exclusion would not apply.