PATRICIA A. HAMPTON and JOSEPH A. HAMPTON, individually as husband and wife; LAURA MARCIANO and NICHOLAS JAKOS, individually, and as parents and/or legal guardians of GENEVIEVE JAKOS, a minor child, Appellants-Defendants,
METROPOLITAN PROPERTY and CASUALTY INSURANCE COMPANY, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable Stanley A. Levine, Judge. Cause No. 02D01-1210-PL-369.
ATTORNEYS FOR APPELLANTS: ANDREW L. TEEL, TRAVIS S. FRIEND, Haller & Colvin, P.C., Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: ELIZABETH M. BEZAK, Burke Costanza & Carberry LLP, Merrillville, Indiana.
BAKER, Judge. NAJAM, J., and CRONE, J., concur.
MEMORANDUM DECISION -- NOT FOR PUBLICATION
In this case, appellee-plaintiff Metropolitan Property and Casualty Insurance Company (Metropolitan) issued a homeowner's insurance policy to Patricia and Joseph Hampton (collectively, " the Hamptons" ). Exclusions under the policy included provisions that Metropolitan would not cover losses that arose from " business activities" or from the " regular care" of a person for " economic gain." However, the policy exclusions did not apply to occasional care or babysitting.
Patricia, a stay-at-home mom who had two young children of her own, agreed to provide childcare on a regular basis to the appellants-defendants Laura Marciano's and Nicholas Jakos's (collectively, " the Parents" ) minor daughter, Gen, at a cost of $20 per day while the Parents were at work. In February 2012, Gen rolled off the Hamptons' bed and was severely injured.
Metropolitan sued for a declaratory judgment and ultimately moved for summary judgment, claiming that the exclusions mentioned above applied in this circumstance, and the Hamptons had no coverage for Gen's injuries as a matter of law. The Hamptons also moved for summary judgment, arguing that there were no genuine issues of material fact, that the exclusions under the policy did not apply, and that they had coverage under the policy.
The trial court granted Metropolitan's motion for summary judgment. We affirm and conclude that coverage was excluded under both the " business exclusion" and the " care of persons exclusion" under the homeowner's policy.
The Hamptons live in Fort Wayne and have two daughters. Juliana was born on February 6, 2008, and Savannah was born on March 23, 2011. Patricia quit her job at Easter Seals after Savannah was born and decided to stay home. The Parents and their child, Gen, who was born on June 24, 2011, also live in Fort Wayne.
Laura and Joseph were co-workers at Lincoln Financial Advisors. In March 2011, when Laura was pregnant, Joseph approached her and said that Patricia could watch the baby because she had decided to stay at home with their children.
The Parents and the Hamptons reached an agreement for Patricia to provide childcare to Gen. Patricia began providing daycare to Gen in August 2011, when Gen was approximately eight weeks old. The Parents provided the necessary supplies for Gen's care, including diapers, wipes, cream, extra clothing, and bottles.
There was no agreement as to how long the arrangement would last or when it would end. Rather, the parties kept the arrangement " open ended." Appellant's App. p. 95. Although the number of days that Gen stayed with Patricia " varied from week to week," Patricia provided care to Gen for approximately six months. Id. at 49-50. The specific days were determined as the weeks approached, but Patricia was paid a daily rate of $20 to watch Gen on a " weekly basis." Id. at 214. The Hamptons determined that $20 per day was a fair rate because that was the amount they had paid for their oldest daughter to be cared for at a " home daycare" when she was three months old. Appellant's App. p. 70-71.
Patricia typically cared for Gen Monday through Friday during the six-month period. The Parents understood that the agreement called for Patricia to provide care to Gen on a regular basis, " every day," Monday through Friday, five days a week or Monday through Thursday, with a few exceptions. Appellant's App. p. 120-21.
More particularly, Patricia provided care to Gen when the Parents were working. For instance, because Laura worked four days per week in September 2011, Patricia provided care for only four days per week during that month. And sometimes, Patricia would care for Gen only three days out of the week. Joseph acknowledged that Patricia provided care to Gen " a fair amount of times," either four or five days per week from August 2011 through February, 2012. Id. at 67.
Jakos would typically drop off Gen in the morning at the Hamptons' residence between 7:00 and 7:30 a.m. Although the pick-up times varied, the Parents typically arrived at the Hamptons anywhere from 4:30 to 5:00 p.m. The $20 daily rate was paid regardless of how many hours that Patricia cared for Gen. The Hamptons generally received cash payments every other week. The Hamptons received a total of approximately $1900 over a ...