Opinion
J-A17015-15 No. 1622 EDA 2014
08-07-2015
THE FIRST LIBERTY INSURANCE CORPORATION v. MICHAEL COLL AND COLLEEN COLL v. JAYDEN ALKER, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS, KEVIN ALKER AND TARA ALKER IN THEIR OWN RIGHT Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated April 14, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2012 No. 003400
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY OTT, J.:
Jayden Alker, a minor by his parents and natural guardians, Kevin Alker and Tara Alker, in their own right (Alkers) appeal the order dated April 14, 2014, in the Court of Common Pleas of Philadelphia County, granting declaratory judgment in favor of the First Liberty Insurance Corporation (First Liberty). Specifically, the trial court determined the homeowner's insurance policy in question contained a valid and enforceable exclusion regarding Jayden Alker's injuries suffered through the Colls' operation of a home day care business. The Alkers claim the trial court erred because (1) there was no proof the day care service operated on a profit motive, and (2) the term "Home Daycare Business" was inherently ambiguous. After a thorough review of the submission by the parties, relevant law, and the certified record, we affirm based upon the sound reasoning of the Honorable Alice Beck Dubow in her Pa.R.A.P. 1925(a) opinion, dated January 6, 2015.
Michael Coll and Colleen Coll are not part of this appeal.
Our standard of review for declaratory judgment is well-established:
Our standard of review in a declaratory judgment action is limited to determining whether the trial court clearly abused its discretion or committed an error of law. We may not substitute our judgment for that of the trial court if the court's determination is supported by the evidence.
Pocono Summit Realty , LLC v. Ahmad Amer , LLC , 52 A.3d 261, 265 (Pa. Super. 2012)(citations and quotation marks omitted).
Additionally,
[w]e will review the decision of the lower court as we would a decree in equity and set aside the factual conclusions of that court only where they are not supported by adequate evidence. The application of the law, however, is always subject to our review.
Erie Insurance Group v. Catania , 95 A.3d 320, 322 (Pa. Super. 2014).
Id. (citations and quotation marks omitted).
Briefly, we note that the Alkers had left their child, Jayden, in the care of Colleen Coll at the Colls' home. The Alkers paid Coll $25.00 per day for this care and on the date of the injury, the arrangement had been in place for approximately two years. On October 11, 2010, while under the Colls' care, in the Colls' home, the Colls' dog bit the child on the face, causing physical and emotional injury. The Alkers filed suit against the Colls who sought defense and indemnification through their homeowner's insurance, issued by First Liberty.
First Liberty filed this declaratory judgment action seeking a declaration of rights and duties pursuant to the exclusion noted above. Specifically, the relevant language of the policy is:
NO SECTION II - LIABILITY COVERAGES FOR HOME DAY CARE
BUSINESS.
LIMITED SECTION I - PROPERTY COVERAGES FOR HOME DAY
CARE BUSINESS
If an "insured" regularly provides home day care services to a person or persons other than "insureds" and receives monetary or other compensation for such services, that enterprise is a "business." Mutual exchange of home day care services, however, is not considered compensation. The rendering of home day care services by an "insured" to a relative of an "insured" is not considered a "business."
Therefore, with respect to a home day care enterprise which is considered to be a "business," this policy:
See First Liberty Policy, Endorsement HO 04 96 04 91.1. Does not provide Section II - Liability Coverages because a "business" of an "insured" is excluded under exclusion 1.b. of Section II - Exclusions[.]
The relevant language of exclusion 1.b. is as follows:
1. Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to "bodily injury" or "property damage":Id., Endorsement HO 00 03 04 91, Section II, 1.b., at 12 of 18.
. . . .
b. Arising out of or in connection with a "business" engaged in by an "insured." This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the "business[.]"
The trial court has provided a proper analysis regarding the Alkers' first contention regarding the application of the "profit motive" as a defining factor for the application of a business exclusion. See Trial Court Opinion, 1/6/2015, at 3-5, 6-8.
Regarding the Alkers' second issue; although the trial court opinion does not specifically address the nature of a home day care business, it is nonetheless clear reading the entire decision that the trial court determined the child care services Coll provided fit the description. Our review of the certified record finds no error therein.
Throughout the 1925(a) opinion, the trial court refers to the regularly provided, paid, services supplied by Coll as babysitting the child. We believe that this alone fairly encompasses home day care services. However, the certified record provides a more complete description of those services. The record demonstrates that Coll cared for the child on a regular basis in her home. She was paid for the service. See Answers to Interrogatories, 5/28/2013, at 4-7. She admitted she provided paid babysitting services to both the Alkers and the child of another couple. Id. at 9. She had no restrictions on how she cared for the children, including the ability to take them on daytrips, such as to the park. Id. at 8; N.T., Deposition of Colleen Coll, 6/21/2013, at 16. She provided food, shelter and attention to the children. Answers to Interrogatories, 5/28/2013, at 8; N.T. Deposition Coll, 6/21/2013, at 26. She provided medicine, as needed, to the Alkers' child. N.T. Deposition Coll, 6/21/2013, at 25. All of these facts support the determination that Coll provided home day care services to the Alkers.
Alkers opine, in part, that because the Coll situation does not meet the statutory definition of "Family child day care home," see 55 Pa.C.S. § 3209.4, Coll did not provide home day care services. This fact only demonstrates Coll did not provide licensed day care services.
Order affirmed. Parties are directed to attach a copy of the trial court opinion in the event of further proceedings. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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