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MR. SOFTEE WOULD NEVER TAKE IT IN THE EYE

In Guishard v. General Security Insurance Company , a party in an underlying negligence lawsuit alleged that he suffered severe eye injuries while using a rivet gun to convert a van owned by Guishard into a "Mr. Softee" ice cream truck. When litigation ensued, Guishard sought a judicial determination declaring that General Security Insurance Company (GSIC) was obligated to defend and indemnify her pursuant to the terms of her insurance policy.

Although GSIC moved the Kings County Supreme Court for summary judgment in its favor -- citing a policy exclusion that denied coverage for bodily injuries arising out of the "maintenance" of any "auto" owned or operated by the insured -- the Court entered judgment in Guishard's favor, without a written opinion.

On appeal, the Appellate Division, Second Department, affirmed after finding that GSIC had not supplied the definition of "auto" and thus had not shown that the relied upon exclusion had been stated in "clear and unmistakable language" or was applicable to the dispute.

When the case reached the New York State Court of Appeals, that court focused on the policy's definition of the word "maintenance," and found that the term encompassed work relating to "an intrinsic part of the mechanism of the car and its overall function," and cited the removal of a tire from a rim as an example.

According to our state's highest court, turning a van into a Mr. Softee truck was transformative of the auto's function and thus did not fall within the policy's "maintenance" definition.

Undoubtedly, mothers everywhere are clucking and wagging their fingers.

To download a copy of the Court of Appeals's decision, please use this link:  Guishard v. General Security Insurance Company

To download a copy of the Appellate Division's decision, please use this link: Guishard v. General Security Insurance Company (AD)

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