Home-Owners claimed the lower court made a mistake in its interpretation of “public and livery conveyance” to include only the transport of passengers and not the transport of goods. Home-Owners, the trial court said, was obligated to defend or indemnify Kiry in any action arising from the collision. Pizza Hut’s motion for summary disposition was granted. The trial court added Kiry’s conduct fell within the exception to the exclusion he was reimbursed per delivery and that constitutes a reimbursement for normal operating expenses. It held the “public or livery conveyance” to mean “the holding of a vehicle out to the general public for carrying passengers for hire and not the transport of goods.” The Allegan County Circuit Court agreed Pizza Hut and Amerisure. This exclusion does not apply to … use of a private passenger automobile for volunteer or charitable purposes or for which reimbursement for normal operating expenses is received.”Īmerisure, meanwhile, argued that since Kiry’s use of the car did not constitute a “public or livery conveyance.” It added that, even if he had used the car as a public or livery conveyance, his use fell within the exception to the exclusion - when reimbursement for normal operating expenses is received. The policy read, in relevant part, that liability coverage does not apply “to any automobile while used as a public or livery conveyance. Home-Owners said its policy excluded coverage when a vehicle is used for business purposes. The plaintiffs and Home-Owners then filed cross-motions for summary disposition. Pizza Hut and its insurer, Amerisure Mutual Insurance Company, filed a complaint seeking declaratory relief against Home-Owners, and asked the court to enter judgment that Home-Owners owed the duties to defend and indemnify them. Home-Owners still refused to provide coverage. Home-Owners denied liability, saying the policy excludes coverage when the car is used for transporting goods or people.ĭevine filed suit, alleging various claims of negligence and vicarious liability against Pizza Hut, Kiry and Kiry’s mother Christina Stickney. While making a delivery, Kiry collided with James Devine, who was on a motorcycle. He got an hourly wage and an additional $1.50 per delivery for maintenance, gas and other miscellaneous expenses involved with using his personal vehicle. Justin Kiry used his mom’s car, which is insured by Home-Owners, as a delivery driver for Pizza Hut in Plainwell. Neither responded to a request for comment before deadline. Bogomir Rajsic of Harvey Kruse in Grand Rapids represented Michigan Pizza Hut. Dugan of Warner Norcross + Judd in Grand Rapids represented Home-Owners. Borrello, Kathleen Jansen and Christopher M. The unpublished decision is Michigan Pizza Hut Inc. “Therefore, the trial court did not err in concluding that the policy exclusion does not preclude coverage and that Home-Owners is obligated to provide coverage for the underlying accident.” “Strictly construing Home-Owners’ exclusionary clause in favor of the insured compels the conclusion that was not operating his automobile as a ‘public or livery conveyance’ at the time of the accident,” the panel explained. “Under the specific language employed in Home-Owners’ exclusionary clause, an ‘insurer is generally held to avoid liability only when the insured vehicle was in fact used as a public conveyance,’” the panel noted. The appellate court disagreed after reviewing the policy. The insurer claimed the trial judge erred by defining “public and livery conveyance” to include only the transport of passengers and not the transport of goods. An insurance company had a duty to defend and indemnify a pizza delivery driver who struck and injured a motorcyclist in a personal injury action, a Michigan Court of Appeals panel has held.
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