Tony Stewart files counterclaim against insurance company

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Tony Stewart’s attorney countered an insurance company’s claim that its policy does not cover Stewart in the wrongful death lawsuit filed by the parents of sprint car driver Kevin Ward Jr.

Brian Gwitt, Stewart’s New York-based attorney, filed the claim Tuesday with the U.S. District Court for the Northern District of New York.

Axis Insurance Company stated in court documents in September that it should not be held responsible for damages Stewart might have to pay the Ward family.

The family filed a lawsuit Aug. 7 against Stewart, seeking unspecified damages for the death of their 2o-year-old son. He died Aug. 9, 2014, after he was struck by Stewart’s car at Canandaigua (N.Y.) Motorsports Park. Ward had been racing Stewart in an Empire Super Sprints race when he crashed. Ward exited his car and walked down the track toward oncoming traffic when he was struck by Stewart’s car.

A grand jury did not indict Stewart on criminal charges. A toxicology report stated that Ward had smoked marijuana within five hours of racing.

Axis claimed in documents that clauses in its policy with Tony Stewart Racing precluded it from paying any damages.

Stewart’s counterclaim states that various clauses show that Axis should be responsible for such damages.

Stewart’s counterclaim states that the Liability Policy includes a segment titled “Commercial General Coverage Part” with a primary-layer coverage of $1 million “per occurrence” for claims covered under it.

That, according to Stewart’s counterclaim, provides coverage for, among other things, “Bodily Injury and Property Damage Liability” and “Participant Legal Liability – Motorsports.”

Stewart’s counterclaim states: “Under the ‘Bodily Injury and Property Damage Liability’ Axis agrees to pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage.’ ‘’

Axis stated in its court filing that its Participant Legal Liability – Motorsports section contained the following exclusion: “This insurance does not apply to claims or actions brought by one racing vehicle driver against another racing vehicle driver.’’

Axis also states that its policy is limited to the events specifically listed by Tony Stewart Racing. The Empire Sprint Series event was not listed, according to Axis.

Stewart’s counterclaim contends that the Axis’ policy “provides Axis with the right and the duty to defend any lawsuit asserting covered liabilities.’’

Stewart’s filing also states that there is an Excess Policy that provides excess-layer coverage of $4 million per “occurrence” for claims covered under the form.

Stewart’s counsel seeks a declaratory judgment that states Axis is “obligated” to provide coverage “to him, including both defense and indemnity in connection with the Ward action” and immediate payment for all past fees and costs incurred in the underlying litigation, and other just and proper relief.