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Insurance Hot Potato Over Yale Tailgating Fatality

HARTFORD, Conn. (CN) - The fraternity being sued over the death of a tailgater at a Harvard-Yale game cannot look to its insurer for coverage, a federal complaint alleges.

Nancy Barry, a 30-year-old Massachusetts woman, was one of three people run over by a U-Haul on its way to tailgate at the Nov. 19, 2011, Yale Bowl in New Haven, according to the complaint Charter Oak Fire Insurance Co. filed on Jan. 2.

While Barry died in the accident, two other pedestrians including Sarah Short were injured.

Charter Oak says SigEp Connecticut Delta had rented the U-Haul to tailgate at the biennial football game between Yale and Harvard universities, and that two of that fraternity's members, Brendan Ross and Patrick Dolan, drove the vehicle.

Dolan, a Maryland resident, allegedly put the rental on his credit card and was later reimbursed by SigEp Connecticut Delta.

Ross, a Yale junior, was driving the U-Haul when it collided with the three pedestrians, according to the complaint. The Missouri resident avoided prison time and a criminal record thanks to a plea deal that reduced the charges, according to the New Haven Register.

Other news reports from the time of the accident said that the U-Haul contained kegs of beer and that Ross passed a field sobriety test.

Though Charter Oak insured Sigma Phi Epsilon Fraternity Inc. at the time of the crash, it says this national organization had no connection to tailgate party or U-Haul rental.

Also "no notice was provided to Charter Oak of the accident at the time it occurred," the complaint states.

As such, Charter Oak's policy does not provide coverage for the four lawsuits now pending against Sigma Phi, Ross and Dolan over the accident in superior court.

Short filed complaints over the accident in 2012 and 2013. Barry's estate filed two lawsuits over the accident in 2013.

Since the national arm of Sigma Phi claims it did not sponsor the tailgating event, two of the lawsuits list 86 current and former fraternity members as defendants, Short's attorney Joel Faxon explained to the New Haven Register.

"It's a roadblock being thrown up by an insurance company for the national organization," the Register quoted Faxon as saying for a Jan. 14, 2014, article. "They've put these 86 Yale students and alumni through the wringer. It's a bizarre situation, but we were compelled to do it."

Charter Oak's complaint uses this distinction against the local chapter as well.

"The U-Haul was not leased, hired, rented or borrowed by National SigEp, or the other entities listed as named insureds in the policy," Charter Oak says.

"Accordingly, the U-Haul was not a 'hired auto' ... within the meaning of the policy."

Charter Oak also disputes that its named insures were "involved in planning, conducting or supervising the tailgating event."

"The named insureds had no involvement in the use of the U-Haul," the complaint states.

Charter Oak is represented in the declaratory-judgment action by Wystan Ackerman of Robinson & Cole.

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