Expert: Richard Hixenbaugh - 12/22/2010

Question
I have a landscape client who provides snow removal service to businesses. They were recently clearing a parking lot and the hit a ramp that was an after design addition by the property owner (concrete lot with concrete curb to adjacent lot which the owner placed an asphalt ramp from one lot to the other). This change in elevation was not visible to the plow operator and was unexpected. They damaged the asphalt addition. The insurance company is denying the claim under the commercial auto liability exclusion of care, custody and control and claim that the surface of the lot was in my clients care custody and control and therefore the property damage is not covered. I have several similar clients and I have never seen a policy interpretation like this. Do you feel this is an appropriate interpretation? If not, what would be your next step? Thanks!

Answer
Hi Jodi,

To be honest, commercial auto policies are not my stongest area of knowledge. However, it appears you could interpret it 2 ways; on the one hand and in the strictest interpretation of CCC, your client was given access to the parking lot to do his job. The lot is therefore in his care, custody & control. On the other hand, can a piece of ground (parking lot) actually be taken into ones car custody & control, when that is not what was contracted for. By that I mean, was there anything in the description of the work to be performed that included safegarding the property from damage. Did the property owner point out the difference in height and material before the job was contracted.

Well that's the best I can provide. I'm sure it will not settle the issue. You may need to ask this question of an attorney or someone who specializes in commercial auto policues.

I hope this helps
Richard Hixenbaugh