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Homeowners |
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Business
Exclusion |
A
one-year-old child burned his hand severely when he fell against a woodburning
stove in his baby-sitter's home as she turned away to watch television. The parents
of four children paid a daily rate for the care of their respective offspring,
an arrangement on a regular basis for about three months.
The
baby-sitter's homeowners policy insurer denied coverage for an ensuing claim on
the basis of a personal liability coverage exclusion for personal injury
"arising out of business pursuits of any insured." Litigation
resulted in trial court summary judgment affirming that the policy did not
provide coverage. The insured appealed.
The
appeal court adopted the view that "baby-sitting is a business pursuit if
conducted on a regular and continuous basis for compensation. It cited a number
of what it termed "the better reasoned cases" involving the issues at
hand. It described, as typical, Stanley v. American Fire & Casualty
Company, 361 So. 2d 1030 (Ala. 1978). The circumstances there were similar to
those here. That court observed that "we are not dealing with a temporary
or casual keeping of children, but rather with a more permanent arrangement for
agreed upon compensation." The child care ". . .
.was properly found to be a 'business pursuit'."
The
appeal court said that, in most cases where coverage was found despite a
business pursuit exclusion, reliance was placed on an exception to the
exclusion for "activity which is ordinarily incident to a non-business
pursuit." Therein the baby-sitting activity was described as incidental to
the "non-business regimen of maintaining a household. . . ." The
injuries were ascribed to conditions associated with and arising out of the
maintenance of a household.
The
appeal court here found that reasoning flawed, stating that "supervision
is at the very heart of child care." It quoted
the Supreme Court of Alabama as follows: "The business of child care contemplates the exercising of due care to
safeguard a child of tender years from household conditions and activities; and
any activity of the insured in this regard from which injury results cannot
logically be called an activity ordinarily incident to a non-business pursuit.
In other words, the activity referred to is a failure to supervise. . . ."
The
judgment of the trial court was affirmed in favor of the insurance company and
against the insured.
Rocky
Mountain Casualty Company, Respondent V. St. Martin Et AL., Appellants.
Washington Court of Appeals, Division Two. No. 13025-4-II. December 26, 1990.
60 Wn. App. 5. CCH 1991-92 Fire and Casualty Cases,
Paragraph 3188.