This declaratory judgment action arises from an underlying negligence action filed by Darrel and Kay Beaver against Dwayne Lee, d/b/a Lee Construction, for injuries Darrel Beaver sustained when he briefly assisted Lee in building a deck on the back of the Beavers’ home. Alea London Limited, Lee’s commercial general liability CGL insurance carrier, provided Lee a defense in the underlying litigation subject to a reservation of rights. Alea sought a declaration that it does not owe a duty to defend or indemnify Lee under the insurance policy’s voluntary labor exclusion. The parties filed cross-motions for summary judgment. The trial court denied Alea’s motion for summary judgment, and instead found that coverage existed and granted the motion for summary judgment filed by Lee and the Beavers. Alea appeals. From July 2000 through April 2003, Lee maintained a CGL policy with the Hartford Insurance Company, which he acquired through agent Stacy Davis, at The Davis Agency, Inc. That policy contained no voluntary labor exclusion. Hartford cancelled that policy when Lee failed to pay the premium, and in June 2003 he again contacted Davis to replace that policy. Davis forwarded a “request for a quote” to Northeast Agencies, Inc., an insurance broker, for new CGL coverage for Lee. Northeast, in turn, contacted TAPCO Insurance Underwriters, Inc., which is the managing general agent for Alea. On July 7, 2003, Northeast forwarded a quote from Alea to Davis. The quote made no reference to a voluntary labor exclusion although it listed other applicable exclusions. In response, Lee signed an Alea insurance application, and on August 11, Davis forwarded it to Northeast along with Lee’s initial annual premium payment.
Northeast subsequently sent Davis a binder securing CGL insurance coverage for Lee as of August 12, 2003. At this point, no written copy of Lee’s policy had been generated, but coverage existed based upon the terms of the quote. TAPCO, on Alea’s behalf, subsequently reviewed Lee’s application and printed a hard copy of the CGL policy on August 25, 2003. The policy was then scanned into the TAPCO computer system on September 2, 2003. No clear indication exists in the file as to when the policy was sent to Northeast, Davis or Lee, although it was TAPCO’s usual practice to mail the policy to the broker —in this case, Northeast —within two days of the policy being issued. The printed policy contained the following voluntary labor exclusion: This insurance does not apply to “bodily injury”, “personal injury” or medical payments to any member, associate, affiliated member, or to any person or persons loaned to or volunteering services to you, whether or not paid by you, arising out of or in the course of work performed for you or on your behalf. In the meantime, Beaver hired Lee to build a deck on the back of his home and agreed to pay Lee’s requested rate of $35 per hour. Lee estimated that the job would take about two days. Lee and an assistant began work on September 1, Labor Day, but Lee came without an assistant on the second day. Lee worked alone on the deck on September 2, until late in the afternoon when he asked Beaver, who was working in his yard, to hold one end of an eight-foot board so that Lee could nail it to the house. Beaver initially demurred, saying that he needed to pick up his daughter, but Lee asked if he could help him “right quick.” Beaver held the left side of the board while Lee held the right at shoulder height and began nailing the board every 16 to 18 inches with a nail gun. After about one-half to one minute, Beaver told Lee that he had a enough nails and Beaver had to go. Beaver let go of the board, turned to leave, ducking under a cross brace. As he was coming up from under the cross brace, Lee turned to the left with the nail gun in his hand, finger on the trigger, and shot a nail into Beaver’s head.
