The Insured Bears the Burden
The underlying action was brought by Marjorie Braucher and Bonne Leiser against Swagat Group (owner and operator of Comfort Inn of Lincoln, Illinois) regarding an infestation of bacteria in the hotel’s hot tub and pool. Swagat Group was insured by Amco Insurance Company (Amco) under a commercial general liability policy and an umbrella liability policy.
The policies contained an exclusionary provision for fungi and bacteria related claims. Amco moved for summary judgment on the basis that the policy excluded fungi or bacteria related claims. The Court ruled that there was no equitable ground for modification of the insurance contract because the insured bore the burden of knowing the terms and conditions of the policy it purchased.
Additionally, the fungi and bacteria provisions in the policy were unambiguous. The court held that Swagat was not entitled to equitable relief because there was no evidence of concealed, misrepresented or ambiguous facts by Amco. The court granted summary judgment in favor of Amco.
