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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON, SC. (FILED: AUGUST 1, 2012) SUPERIOR COURT

PROVIDENCE MUTUAL FIRE INSURANCE COMPANY

: : : v. : : KEVIN NEARY; INEZ NEARY; : PAMELA METRO, Individually and in : her capacity as Administratrix of the : Estate of Luke R. Metro; and PAUL : METRO, Individually and as Father and : Next of Kin to Luke Metro : DECISION

C.A. No. WC 11-0236

STERN, J. This matter is before this Court on Plaintiff Providence Mutual Fire Insurance Companys Motion for Summary Judgment seeking declarations from this Court that no coverage exists under the Providence Mutual homeowners insurance policy for claims by Defendants Pamela and Paul Metro against the homeowners and policyholders, Defendants Kevin and Inez Neary. I Facts and Travel Providence Mutual issued a Homeowners Insurance Policy for the period of June 25, 2008 to June 25, 2009, policy number HP 0122788-01 (the "Policy"), to Defendants Kevin and Inez Neary for their home in North Kingstown, Rhode Island. The Policy included personal liability coverage for "bodily injury" caused by an "occurrence," but certain exclusions applied during the policy period. One such exclusion contained in the Policy entailed that the personal

liability and medical payments coverage did not apply to "bodily injury" if it occurred in connection with a business. Inez Neary and Pamela Metro have known each other since elementary school and were family friends. See Inez Neary Dep. at 30-32. The Nearys and the Metros knew each other socially. See Paul Metro Dep. at 14, 15-17; Inez Neary Dep. at 30-32. Approximately six months before Luke was born, the Metros began to make arrangements for a babysitter, and Inez Neary agreed to watch him for payment of $25 per day. See Inez Neary Dep. at 43-44, 46. Pamela Metro and Inez Neary later arranged the details. Id. at 45-46. Inez Neary first watched Luke about eight weeks after he was born. Id. at 48. Pamela Metro always paid Inez Neary by check, id. at 48-49, and certain days were prorated to a lesser amount if Inez Neary only watched Luke for part of the day. See id. at 53-54. Inez Neary does not dispute that she received and cashed checks from Pamela Metro that accounted for the days she watched Luke. See id. at 5257 (discussion of each check received and cashed and the totals equaling the addition of the days for which Inez Neary watched Luke). Inez Neary did not watch Luke during April of 2008 because she had an externship with a doctors office. See id. at 57. She testified that she used the money she received for watching Luke to pay for groceries and other household items. See id. at 63-67. She did not separate the money received for watching Luke from her general budget. See id. Inez Neary watched four children, including Luke Metro, over the course of a number of years. See Inez Neary Dep. at 34. Inez Neary was paid $20 per day to watch her niece, Hanna Valley. See id. at 34, 37. She was paid $30 per day to watch Eric Burlingham, id. at 70-71, and $30 per day to watch Hanna Duva. Id. at 76-77.

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On August 8, 2008, Luke R. Metro, approximately eighteen (18) months old at the time, was under the supervision of Inez Neary at her home, which is the home covered by the Policy. She agreed to watch him that day while his parents were at work, as had been her practice for the previous year. Sometime that morning, Luke Metro had been left unattended. He managed to leave the home through a sliding glass door that was found open to the outside. Inez Neary and her daughter searched for Luke Metro and found him in a Koi pond on the property. Despite rescue and revival efforts, Luke Metro died. Pamela Metro and Paul Metro each filed separate complaints against the Nearys as a result of Luke Metros death. See Pamela Metro, Individually and in her capacity as

Administratrix of the Estate of Luke R. Metro v. Inez M. Neary and Kevin V. Neary, C.A. No. WC-2011-0156; Paul Metro, Individually and in his capacity as father and next of kin to Luke Metro v. Kevin and Inez Neary, C.A. No. WC-2011-0223. Plaintiff Providence Mutual Fire

Insurance Company subsequently filed the instant declaratory judgment action pursuant to R.I. General Laws

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Rhode Island Law