In-Home Babysitting Falls within "Business Pursuits" Exclusion in Homeowner's Policy; Coverage Denied for Suit Arising out of Injury to Child in Home
内华达州最高法院裁定，家庭保姆服务因收费且持续进行，属于房主保单中“商业活动”除外条款，保险公司无需赔付因保姆家狗咬伤儿童引发的诉讼。
Dwello v. American Reliance Insurance Co., 990 P2d 190 (Nevada Supreme CourtDecember 28,1999) Alisa Dwello was a working mother with a seven-year-old daughter. She arranged for her neighbor, Patty Kenyon, to care for the girl while Dwello worked. Kenyon generally watched the child in her home ten hours per day, five days per week for $50.00. The charges were, to say the least, modest, but accounted for 40 percent of Kenyon's monthly income. Unfortunately, the arrangement took a tragic turn when Kenyon's dog attacked the child, severely injuring her face, head, and eye. Dwello sued Kenyon for negligence in failing to adequately protect the girl and failing to warn of the dog's dangerous propensity (it had apparently bitten others before). The Kenyons tendered the complaint to their homeowners insurer, American Reliance. The insurer refused to defend and commenced a declaratory judgment action against the Kenyons, claiming the matter fell outside of coverage because the injury arose out of business by the Kenyons, which was specifically excluded from the standard homeowners policy. When the Kenyons filed for bankruptcy, Dwello was permitted to intervene against American Reliance in the declaratory judgment action. After a one-day bench trial, the trial court found for the insurer, and the Nevada Supreme Court unanimously affirmed. The exclusion in the policy provided that the liability coverage of the policy did not extend to bodily injury or property damage [a]rising out of your business This also includes your occasional or parttime business pursuits. The Supreme Court found this language undeniably clear in limiting coverage. The Kenyons had argued that they would have watched the child for free if necessary because of the neighbor relationship and that the exclusion did not apply because Kenyon was not generally operating a child-care business (she was not licensed and did not advertise) but watched only the one child as an accommodation to Dwello. Notwithstanding the cut-rate charges, the court rejected the Kenyon position on the ground that the child care in question was provided for a fee and was substantial and ongoing. According to the court, the business pursuits exclusion in the policy is clear and unambiguous. Notwithstanding this pronouncement, the Nevada Supreme Court suggested that it would not read the business pursuits exclusion to exempt from coverage all claims arising out of babysitting. Noting that other state courts had divided on in-home babysitting fell within the business exclusion, Dwello expressly adopted the approach of the New Jersey courts in Carroll v. Boyce, 272 N.J. Super. 384, 640 A.2d 298 (App. Div. 1994) and used a two-factor test that asks: (1) the business pursuit a continuity or customary engagement in the activity and (2) whether the involves a profit motive. …