Axis Insurance says the lawsuit brought against racing star Tony Stewart, whose car struck and killed another racer during a New York event in 2014, is not covered by the insurance policies it issued for Stewart.
Axis maintains that its combined liability insurance policies do not cover claims of one race car driver versus another, the specific race in New York where the accident occurred, or the race car Stewart was driving.
Axis filed for a declaratory judgment last Friday in the case brought against Stewart by the parents of the deceased driver, Kevin Ward Jr. The insurer says it should not have to defend or indemnify Stewart in the Ward case.
The 20-year-old Ward was hit and killed by Stewart after leaving his vehicle and walking onto the course during a racing event in upstate New York on Aug. 9, 2014.
Axis issued three policies to Stewart: primary commercial general liability (with $1 million each occurrence and $2 million aggregate limits), commercial excess liability ($4 million) and an auto policy ($1 million).
The primary CGL contains an endorsement for participant legal liability for motorsports that contains this exclusion:
This insurance does not apply to claims or actions brought by one racing vehicle driver against another racing vehicle driver. However in the event of such a claim or action, coverage remains in effect for the First Named Insured and any other applicable insureds; however, coverage is specifically excluded for the racing vehicle driver who is the object of such claim or action.
The CGL policy also limits coverage to specified events: World of Outlaws (65 events), USAC Sprint (30 events) and USAC Silver Crown (10 events).
The August race where Ward was killed was an Empire Super Sprints event at Canandaigua Motorsports Park. Axis says Empire Super Sprints are not among specified covered events.
Axis also claims that its $4 million excess policy for Stewart follows the provisions, exclusions and limitation of the primary coverage and is thus also not triggered in this case.
Finally, Axis argues, the $1 million auto policy for Tony Stewart Racing does not apply because the “super sprint vehicle” allegedly driven by Stewart during the event does not qualify as an auto under the policy and because this policy contains an exclusion for racing. Super sprints are a particular type of high-powered racing vehicle.
The suit by the Ward family alleges four causes of action: wrongful death, terror pain and suffering prior to death, intentional/reckless conduct and gross negligence. It seeks unspecified damages.
The Wards contend that Stewart could have “easily acted reasonably and with prudence” to avoid striking their son as 19 other drivers did while the race was under yellow caution flags.
If there is a crash or disabled car during a race, officials put the race in a state of caution using announcements and yellow flags. When a race is under caution, drivers must slow down and move away from any hazard.
The Wards’ complaint says Stewart is a successful professional racer and alleges he is also known for his “temper and outbursts” on and off the track.
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