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A U.S. National Guard soldier in Iraq who lost both arms when a helicopter tire exploded while being inflated may collect on his insurance policy, its exclusion for “acts of war” notwithstanding, a Rockland County judge has ruled. “Based upon the language in the exclusion and the commonly understood definitions of ‘war,’ this Court holds that plaintiff’s injuries do not fall within the policy exclusion since he was not engaged in ‘armed conflict,’ or ‘active hostilit[ies],’ or ‘battle’ at the time he sustained injuries; rather, plaintiff was simply engaged in routine maintenance of a helicopter tire,” Supreme Court Justice Mary H. Smith ruled in Damon v. Fortis Benefits Insurance Company , 7673/04. The decision will be published Tuesday. Peter J. Damon purchased the disputed insurance policy from Fortis Benefits Insurance in Massachusetts a few weeks before he left for a tour of duty in Iraq. The sales representative allegedly assured Mr. Damon the policy covered all injuries, no matter the locale sustained. Mr. Damon did not receive a copy of the policy, however, until “weeks and weeks later,” when he was already in Iraq, he said. In Iraq, Mr. Damon was stationed in Balad, where he worked as a helicopter mechanic. On Oct. 21, 2003, a UH-60 Black Hawk helicopter tire he was filling with high-pressure nitrogen exploded, killing Specialist Paul Bueche and severely damaging Mr. Damon’s arms. His left arm was severed just below the elbow, his right arm just above it. Mr. Damon spent one year at the Walter Reed Army Medical Center before returning home to Brockton, Mass., where he is still undergoing rehabilitation. He filed with Fortis Benefits for compensation for the injury in July 2004. The insurance company denied the policy based on its exclusion for a “loss which is caused by, results from, or contributed to by: Declared or undeclared war or any act of war.” Mr. Damon sought a judgment declaring that his injuries fall within the covered risks of the policy and an order requiring Fortis to pay him, pursuant to the policy, $72,500. He filed in Rockland County because he has “significant contacts” with New York, according to his attorney. Both sides moved for summary judgment. Justice Smith granted Mr. Damon’s motion. “The test for determining whether an insurance provision is ambiguous is the reasonable expectations of the average insured upon reading the policy and employing common speech,” Justice Smith held. “Notably, the policy here in issue does not define the term ‘war.’” Justice Smith therefore relied on Webster’s New World Dictionary, 4th Edition, which defines “war” as a “battle,” “military operations as a profession or science,” “any active hostility, contention, or struggle” or an “open armed conflict between countries or between factions within the same country.” Under this definition, Mr. Damon’s injuries were not caused by an “act of war,” Justice Smith concluded. Accident Location Irrelevant “The mere fact that the United States is and was at war with Iraq at the time that plaintiff suffered his injuries is irrelevant; said circumstance of being at war merely furnished the occasion for plaintiff’s injuries ? the war did not ’cause’ or ‘contribute’ to plaintiff’s injuries, as required by the terms of the policy exclusion,” she wrote. Mr. Damon’s attorney, Dennis Lynch of Nyack-based Feerick Lynch, called the location of the accident irrelevant. “The facts were certainly unique, but the application of precedent is very appropriate. The war itself was no competent producing cause of the injury sustained,” Mr. Lynch said. “It’s the Iraq version of Palsgraf,” he added, referring to the seminal Court of Appeals ruling regarding proximate cause. The decision coincides with a report released yesterday by the Government Accountability Office, “Product Sales: Actions Needed to Protect Military Members,” that urges Congress to protect military personnel from deceptive and unsuitable insurance policies. “I think the manner in which these policies were sold is a great discredit to the insurance industry,” said Mr. Lynch, a partner at the Nyack-based civil rights firm Feerick Lynch. “How many soldiers [whose claims] were turned down will have the ability to retain counsel and fight this? Not many.” Michael Lenoff and Michael E. Pressman of the Law Offices of Michael E. Pressman represented Fortis Benefits Insurance, a subsidiary of the Assurant Group, a New York-based insurance company. Mr. Lenoff said he has not yet discussed with his client whether it will appeal. Representatives of Assurant could not be reached for comment. ? Mark Fass can be reached at [email protected] .

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