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EDMUND G. MILLER AND CLARE F. MILLER v. NATIONWIDE MUTUAL FIRE INSURANCE CO. (04/25/80)

filed: April 25, 1980.

EDMUND G. MILLER AND CLARE F. MILLER, APPELLANTS,
v.
NATIONWIDE MUTUAL FIRE INSURANCE CO., AND DONALD F. LEWIS, T/A THE DON LEWIS AGENCY



No. 316 October Term 1979, Appeal from Judgment entered of the Court Common Pleas of Chester County, Civil Action, Law, at No. 120 February Term, 1975.

COUNSEL

Lawrence M. Aglow, West Chester, for appellants.

William J. Gallager, West Chester, for appellees.

Price, Wieand and Van der Voort, JJ.*fn*

Author: Van Der Voort

[ 277 Pa. Super. Page 204]

This is an appeal from Judgment denying appellant's motion for a new trial. The dispute arises over the coverage of a so-called Home Owners' insurance policy issued to the appellants, Edmund G. Miller and Clare F. Miller, husband and wife, by Nationwide Mutual Fire Insurance Company, (hereinafter Nationwide) through its agent, Donald F. Lewis, t/a The Don Lewis Agency, (hereinafter Lewis).

The Millers owned a home near rural Unionville in Chester County and operated a commercial horse business in a rented barn and adjacent acreage located approximately one-half mile from their home. The business consisted primarily of the purchase, raising, training, grooming and sale of horses, although they also undertook some breeding of horses and also boarded horses belonging to others for a fee. This commercial horse business was the sole occupation and source of livelihood of the Millers.

In August 1970, Mrs. Miller called at the office of Mr. Lewis, whom she had not previously met or known, for the purpose of purchasing an insurance policy. She brought with her a Home Owners' insurance policy issued by Aetna. She told Mr. Lewis that she had been advised by Aetna that it would not renew the policy because it was going out of the business of issuing this particular type of contract. She explained to Mr. Lewis that she wanted to get one like it from him. In the application which she filled out in Mr. Lewis's office with the aid of his secretary, she stated that her husband's business was "horse breeder". It would appear from the testimony of both Mrs. Miller and Mr. Lewis that she did not describe the nature of the business further and that she did not tell Mr. Lewis that the business was conducted on rented property located approximately one-half mile away from the premises which were to be insured. She did tell Mr. Lewis that she and her husband had some ponies, liability for which Mr. Lewis told her would be covered under the insurance policy like other household pets. The remainder of the conversation is in dispute.

[ 277 Pa. Super. Page 205]

Mrs. Miller testified that she made specific inquiry as to the scope of the liability coverage of the policy and gained the impression that the horse business was included in the coverage. In contradiction to this testimony, Mr. Lewis was specific in his recollection that he had told Mrs. Miller that the policy would cover only their household property and any personal pets connected with the household such as the ponies which Mrs. Miller told him were on the property. He testified that he informed her that the policy would not cover "the horse business" and that Mrs. Miller replied that that was alright because her husband took care of that business.

At the conclusion of this now disputed conversation, Mrs. Miller ordered a policy of insurance which Mr. Lewis issued the following day on behalf of Nationwide. Neither of the Millers read the policy after it was received until this litigation arose. The policy, quite specifically, excludes "business property", both in its affirmative description of the coverage and in the exclusion section of the policy. In the section dealing with "protection against liability", the policy provides in affirmative coverage that:

"This policy insures against liability arising from the ownership, maintenance or use of real property, meaning a. all premises, other than business property and farms, where ...


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