Tower brought this DJ action seeking a judgment holding that it has no duty to defend or indemnify the insured in an underlying personal injury action which arose out of a trip and fall at 35-36 9th Street, Long Island City.

Tower contended that the claim falls within an exclusion in the policy for claims arising out of a premises at which the insured does not reside. The policy defined insured location as:

A) The residence premises;

B) The part of other premises, other structures and grounds used by you as a residence and:

(1) Which is shown in the declarations; or

(2) Which is acquired by you during the policy period for your use as a residence;

C) Any premises used by you in connection with a premises in 4a and 4b above;

D) Any part of a premises:

(1) not owned by an insured and

(2) where an insured is temporarily residing....

Residence Premises is defined as:

The one family dwelling, other structures, and grounds; or

That part of any other building where you reside and which is shown as the residence premises in the declarations.

Residence Premises also means a two family dwelling where you reside in at last one of the family units and which is shown as the residence premises in the declarations.

Towers investigator took a statement from the insured, Amany Said, in which she said that she had lived in a different location (not the insured premises) for the past 15 years and that the underlying plaintiff was a tenant in the insured premises. Said also told the investigator that she bought the insured premises as an investment property.

Tower disclaimed coverage on the grounds that the subject premises is not a residence premises and therefore it does not qualify as an insured location with respect to the underlying claim.

Tower appointed defense counsel for the insured and also brought this DJ action. The insured opposed this DJ action, claiming, through her attorney, that the policy does not state in clear English that the insured must reside at the premises. However, the insured did not submit an affidavit with her papers.

The court held that, contrary to the insureds contention, the policy exclusion is not ambiguous, notwithstanding the inherent inequity of Towers acceptance and retention of premiums paid by defendant Said on the premises. The court therefore declared that Tower has no duty to defend or indemnify defendant Amany Said in the underlying action....

Comment: Why, I ask, is it inherently inequitable (as the court stated) that Tower gets to keep the premiums in a situation where a claim falls outside of its coverage? The insured got what she paid for: coverage for covered claims. She apparently chose to buy a policy that would not cover her for liability claims because she did not live there " quite possibly because the premiums would have been considerably higher if she had disclosed that she did not live at the location. Of course it is also possible that her broker failed to disclose to her that she was buying the wrong kind of coverage, but thats another lawsuit, isnt it?

Tower Ins. Co. v. Amany Said an Ahmed Hassan, 2007 NY Slip Op 30724 (U),Index no. 100420/2006 (Supreme Court, New York County) (Kapnick, j)