Homeowners Premises Liability Coverage Beyond The Property Line
Kristen A. Barnes
It is universally understood that homeowners insurance provides insureds with liability coverage for negligence related to the landowner's duty to persons lawfully on the premises. Massachusetts courts, however, have recognized that the landowner's duty does not end abruptly at the boundary line of the property over which he exercised control, but rather extends in appropriate circumstances to conditions on adjacent property. Polak v. Whitney, 21 Mass. App. Ct. 349 (1985), citing
Carleton v. Franconia Iron & Steel Co., 99 Mass. 216 (1868); Hopkins v. F.W. Woolworth Co., 11 Mass. App. Ct. 703, 706, 419 N.E.2d 302 (1981). This extended duty, however, generally does not leave a homeowner with uninsured exposure because the standard form homeowner's policy (HO-3), via its definition of "insured location," extends the boundaries of the liability policy to premises "used in connection with" the insured property.
The existence of ambiguities in insurance policies are common place for Plaintiff's attorneys attempting to navigate the facts of the case into the language of a homeowners policy to somehow invoke coverage applicable to their client's loss. One such vagary is located in the definition of an "insured location". More often than one might expect, questions arise involving the interpretation of the terms in the standard homeowners policy - - "used on connection with" as it relates to establishing the boundaries of an insured location. This language comes up in two ways in the standard homeowners' policy. First off, this phrasing is found in the definition of insured location. Homeowners policies typically contain the following definition, or some variation thereof, for insured location:
"insured location" means:
- the "residence premises;
- the part of other premises, other structures and grounds used by you as a residence and:
- which is shown in the Declarations; or
- which is acquired by you during the policy period for your use as a residence;
- any premises used by you in connection with a premises in 4a or 4b above;
This language necessarily treats property other than that of the residence premises as insured property for purposes of coverage. Massachusetts case law has attempted to clarify just what it means when an insured uses premises "in connection with" an insured location.
The language "use in connection with" also arises in conjunction with the most common form of homeowner's personal liability coverage - - the exception to the motor vehicle exclusion, including on for off road vehicles:
The motor vehicle exclusion does not apply to:
(2) a motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and
(a) note owned by an insured; or
(b) owned by and insured and on an insured location.
The first appellate level case in Massachusetts to interpret the language "used on connection with" was Massachusetts Property Ins. Underwriting Assn. v. Wynn, 60 Mass.App.Ct. 824 (2004). In the Wynn case, the Court addressed the question as to whether a beach located approximately 500 feet from the insured's residence was used regularly by an insured for recreation was an "insured location" under a homeowner's policy definition of "any premises used in connection with [the insured residential premises])". Id. at 829. The underlying case involved a collision of an all-terrain vehicle (ATV) which was being operated at the nearby beach. The Court concluded that the beach was not integral to the use of the residence no matter how regularly the insured used the beach for recreation. The Wynn decision appears to focuses on three criteria for determining whether a site is used in connection with a specifically insured residential premises: (1) the character of the use as a residentially related activity; (2) the distance between the residence and the site; and (3) the resulting reasonable foreseeablity of the risk of the connected activity on the site to the insurer. Applying these criteria in the Wynn case, the Court ultimately concluded that there was no coverage for an ATV accident as the term "insured location" was limited to the residence and premises integral to its use as a residence. Id. at 830 (emphasis added). The Court noted that the "definition [of insured location] is not meant to encompass adjacent, non-owned land on which an ATV might be used any more than it is intended to include parks or recreational facilities in proximity to the residence that the insured may enjoy and use regularly. Such locations are neither intended nor reasonably understood to be 'insured locations' under a homeowner's policy." Id. at 829-830. The Court went on to say that "[i]t is not reasonable that the meaning of the language 'used in connection with' the residence' and hence the ambit of the insured location, should vary depending on the fortuity of an insured's regular use of a field, trail, or recreational area, public or private, in a neighborhood of his residence." Id.
It is interesting to note that the Wynn decision has been criticized for its insertion of the word "integral" into the clause "used in connection with." The policy "does not refer to property that is 'an integral part' of [the] residence; it refers to property that is regularly used "in connection with" it. Allstate Ins. Co. v. Drumheller, 185 Fed.Appx. 152 (3rd Circuit 2006). However, in the Appeals Court's later decision in Utica Mutual Ins. Co. v. Fontneau, 70 Mass.App.Ct. 553 (2007), the Court steps away from word "integral" while staying consistent with the overall reasoning in the Wynn decision.
In the Fontneau case, the insurer brought an action for declaration that its policy did not provide coverage for personal injuries claims arising out of accident which occurred on the parcel owned by the homeowner which was adjacent to the insured parcel. In the underlying case, a police officer sustained an injury on a dirt track of 380 Old Colony Road in Norton. The track led to an adjoining parcel known as 378 Old Colony Road. The insured owned both parcels of land - with only 380 Old Colony Road carrying insurance. Evidence revealed that the insured would store antique automobiles on the insured parcel and the only way to access those vehicles was via a dirt track through the adjacent uninsured parcel. A police officer was injured while walking the dirt track to investigate an incident in the rear of the insured premises when he walked into a stabilizer extension of a backhoe which was protruding onto the track. The Court concluded that both the proximity and usage of the accident site (the track) was sufficiently connected to the residence premises to receive coverage as an insured location. The Court reasoned that "the dirt track from 380 provided the only vehicular access and the most convenient pedestrian access to the lower backyard of 378. Without the dirt track Fontneau could not have stored and cared for antique automobiles there. . . . The evidence at trial placed the accident at a spot only a short distance from the boundary line of 378." The Court went on to consider the insurer's expectations and concluded that "[n]o unforeseeable surprise befell Utica Mutual" as "[n]o evidence arose at trial to indicate that Utica Mutual did not know of the activities oat 378 and 380 or that it had not been able to learn of them by application of renewal questionnaires or by direct inspection." Id. at 560.
The reasoning in the Fontneau decision is in line with many jurisdictions on this issue. In Nationwide Mutual Insurance Co. v. Prevatte, 423 S.E.2d 90 (1992), the Court of Appeals of North Carolina held that an ATV accident, which occurred on land adjacent to insured's residence, occurred on an "insured location" within meaning of the policy. Similarly, in Uguccioni v. United States Fidelity and Guaranty Co., 597 A.2d 149 (Pa. Super.1991), the court held that a roadway in a private residential development was an "insured location" under a homeowner's policy. Employing a similar rationale, a Vermont court concluded that an easement where a collision allegedly occurred between all terrain vehicles was "an insured location" within the meaning of a homeowners' insurance policy which made the motor vehicle exclusion of liability coverage inapplicable if a motorized land conveyance not subject to registration was used on an insured location; the policy defined "insured location" to include the residence premises and premises used in connection with them, and the right-of-way was thus part of the insured location. Northern Sec. Ins. Co., Inc. v. Rossitto, 762 A.2d 861 (Vt. 2000).
Employing a similar rationale, a Vermont court concluded that an easement where a collision allegedly occurred between all terrain vehicles was "an insured location" within the meaning of a homeowners' insurance policy which made the motor vehicle exclusion of liability coverage inapplicable if a motorized land conveyance not subject to registration was used on an insured location; the policy defined "insured location" to include the residence premises and premises used in connection with them, and the right-of-way was thus part of the insured location. Northern Sec. Ins. Co., Inc. v. Rossitto, 762 A.2d 861 (Vt. 2000).
Courts have generally declined to extend this definition where the location of the accident is not an access way and is more remote from the primary property. See, e.g., Illinois Farmers Insurance Co. v. Coppa, 494 N.W.2d 503, 505-06 (Minn. App. 1993) (denying coverage for injuries sustained while insured was driving ATV across a hayfield adjacent to the insured's property; hayfield was not "used in connection with" the insured's premises); United Services Automobile Association v. Parry, 761 P.2d 157, 159 (Ariz. App. 1988) (water basin collection area in a subdivision was not "premises used in connection with insured's premises" where child operating go-cart in the street of subdivision hit curb which caused go-cart to vault through air and come to rest in a water retention basin 17 feet from the curb; "[g]iven the fact that the basin was owned by the Association, designed for run-off collection purposes, and located at a distance from the Jones's residence, within the meaning of this provision, the water basin cannot be construed as a 'premises' used 'in connection with' the Jones' residence within the meaning of this provision.").
As for Massachusetts precedent on this issue, the Appeals Court's construction of the policy language in Wynn and Fontneau establishes a construct which is consonant with the decisions from other jurisdictions and is consistent with objectively reasonable consumer expectations that the liability policy should provide coverage at least concurrent with the duties and resulting liability obligations that may arise from an insured's possession of an insured location.
Kristen A. Barnes is a member of MATA and concentrates her practice with Kenney & Conley, P.C. on representing injury victims in the trial courts and appellate courts, as well as litigating insurance coverage issues.