Daniel Francis Kelly, Jr. - Page 17




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               rendered, promised, owed, or implied to be provided                    
               because of the nature of the business;                                 

          Initially, USAA informed petitioner that it was denying coverage            
          under the homeowner's policy and, subsequently, filed a complaint           
          for declaratory judgment asking the Superior Court of Maricopa              
          County, Arizona, to enter a judgment declaring that petitioner              
          was not entitled to coverage under his USAA homeowner's policy              
          for the claims set out in Ms. Doe's civil suit.  Petitioner                 
          opposed USAA's attempt to deny coverage and claimed that he was             
          entitled to coverage for liability as well as the costs of                  
          defending the civil suit.  Eventually, USAA dropped its attempt             
          to deny petitioner coverage and paid not only the full amount of            
          the settlement between petitioner and Ms. Doe but also                      
          petitioner's expenses in defending the civil suit.  Thus, both              
          petitioner and USAA effectively took the position that Ms. Doe's            
          claims that were the subject of the civil suit did not arise out            
          of, nor were they connected with, petitioner's business.                    
               Petitioner has seen fit to alter his position on classifying           
          the origin of the sexual assault claim (i.e., business or                   
          personal) based solely on which theory happens to prove                     
          financially advantageous to him in any given situation.                     
          Unfortunately for petitioner, he has completely failed in his               
          attempt to make transformations reminiscent of a chameleon.                 
               In conclusion, under the Gilmore test, the Court holds that            
          the origin of Ms. Doe's claim against petitioner did not arise              
          from any business or profit-seeking activity or motivation of               

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