Insurer Responsible for Liability Claims Despite Uninsured Premises Exclusion

By | March 13, 2020

The Massachusetts Supreme Judicial Court has ruled that an insurer is responsible for paying liability claims resulting from the improper use of a portable generator, despite an uninsured premises exclusion in the insured’s homeowners policy.

This comes after four people died from carbon monoxide poisoning at an uninsured cabin owned by Mark Wakelin. The cabin did not have electrical power, and it was found that a portable generator Wakelin left at the cabin had been improperly used indoors by the victims to power a small refrigerator.

Wakelin held a homeowners policy from Green Mountain Insurance Company for another property he owned in Braintree, Mass. Although the policy provided protection for personal liability as well as property damage, it contained an exclusion for bodily injury occurring at any property owned by Wakelin but not insured under the policy.

The cabin where the incident occurred, located in Byron, Maine, was not an insured location under the policy and was not covered by another homeowners insurance policy.

Carbon Monoxide Accident

Around July 14, 2015, Wakelin’s daughter, Brooke, and son, Matthew, went to the cabin with two friends, Keith Norris and Deana Lee Powers, to celebrate Brooke’s upcoming twenty-second birthday. Shortly after arriving at the camp, all four died from carbon monoxide poisoning.

After the cabin was inspected, it was discovered that the victims had plugged the cabin’s small refrigerator into the portable generator using an extension cord and ran the generator inside the cabin without opening any windows or doors. The generator was not running when it was found, but its switch was in the ‘on’ position, and it contained little-to-no gasoline.

After the accident, counsel for the estate of Norris notified Green Mountain in an October 2015 letter about the estate’s wrongful death claim against Wakelin. Among other things, counsel claimed Wakelin failed to instruct his children and their friends on the proper and safe use of the generator and failed to warn them of the dangers of running the generator in an enclosed area.

Legal Action

After receiving this letter, Green Mountain initiated a declaratory judgment action against Wakelin, the estate of Norris, and the estate of Powers in December 2015. In its complaint, Green Mountain anticipated that the respective estates of Norris and Powers would make claims that Wakelin was negligent and caused the death of both victims. Green Mountain sought a judgment from the Superior Court declaring coverage for these claims was barred under the policy’s uninsured premises exclusion.

In its argument, Green Mountain relied on an electrical engineer’s conclusions that the deaths were caused by the use of the generator inside the cabin and the cabin’s inadequate ventilation. The Superior Court judge, however, denied Green Mountain’s motion for summary judgment and instead ruled in favor of the defendants. Green Mountain then filed a notice of appeal, and The Massachusetts Supreme Judicial Court transferred the appeal on its own motion.

The Massachusetts SJC found that the accident cannot trigger the policy’s uninsured premises exclusion since the generator was portable. Although the generator was always kept in the Maine cabin, it was not hard wired into the cabin’s rough electrical system, making it a permanent fixture, and was not regularly used to provide electricity, the court found.

Additionally, the court ruled that Wakelin’s failure to instruct his children on how to safely use the generator was the primary issue in this case, as opposed to any condition or defect on the property itself.

“Wakelin could have been responsible for the very same omission elsewhere and still would have been covered by the policy,” Massachusetts SJC Justice Scott L. Kafkerin wrote in his opinion. “By way of example, Wakelin could have lent the portable generator to a neighbor and failed to instruct him or her on how to properly use it, and had any harm resulted, he would have been covered under his policy for the same alleged tortious conduct that underlies the present case.”

Similarly, the court rejected Green Mountain’s argument that the accident was partially a result of the cabin’s inadequate ventilation.

“Nothing from our review of the record makes this particular cabin any more susceptible to an accident involving carbon monoxide poisoning than any other enclosed area, as no enclosed area is a safe place to run a generator,” Kafkerin’s opinion stated. “This further supports our conclusion that this accident -however tragic – could have happened anywhere and did not arise out of a condition of the uninsured premises.”

With this in mind, the Massachusetts SJC affirmed the Superior Court’s earlier judgment that the accident didn’t result from the uninsured premises, and consequently, the uninsured premises coverage exclusion in Wakelin’s homeowners policy does not apply.

The case is Green Mountain Insurance Company, Inc. vs. Mark J. Wakelin & others.

Topics Carriers Claims Massachusetts Homeowners

About Elizabeth Blosfield

Elizabeth Blosfield is the East region editor for Insurance Journal. She can be reached at More from Elizabeth Blosfield

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