A federal judge from Southern District of Florida has ruled that Florida Memorial University (FMU) is not entitled to coverage from an insurance company in a case in which it was sued for negligence by a cheerleader, who suffered a concussion and other injuries while performing a stunt.
In so ruling, the court found that Philadelphia Indemnity Insurance Company (PIIC) carried its burden of “establishing the applicability of a policy exclusion” Therefore, it is “not liable for either the defense or indemnity of FMU in the underlying action.”
FMU student Aaliyah Edmond, the plaintiff in the case, was a member of FMU’s dance team. The complaint alleges the dance team was managed and organized by FMU. While under the supervision of an assistant dance-team coach, Edmond says that she, along with her team, attempted to execute a new stunt during a practice session on October 7, 2015, in preparation for an upcoming dance show. In practicing the new stunt, Edmond’s teammate failed to catch her, and she hit her back and head on the bare tile floor of the practice room. The coach, according to Edmond, directed her to sit down but did not otherwise instruct her to seek medical care even though she was experiencing concussive symptoms. The next day, Edmond continued to experience concussive symptoms which she reported to FMU’s athletic trainer’s office. The trainer, however, determined she was fine. Nonetheless, when Edmond followed up with a neurologist a few days later, she was diagnosed with a grade three concussion, which was determined to be a result of the head trauma sustained during practice on October 7th.
Edmond ultimately sued FMU, alleging the school had been negligent in a number of ways: (a) negligent supervision of the dance team; (b) failing to provide a proper practice room; (c) failing to provide safety mats; (d) introducing a dangerous stunt to an inexperienced dance team; (e) failing to assign spotters for dancers attempting the stunts; (f) failing to implement or follow a proper concussion protocol; (g) failing to provide medical care despite the presence of concussion-like symptoms; (h) failure of the coach to report Edmond’s injury; and (i) failure of the trainer to provide proper medical care when Edmond presented with concussion-like symptoms the day after the incident.
At all relevant times, FMU was insured by a liability policy issued by PIIC. This policy afforded coverage for FMU’s liability for “bodily injury,” subject to certain limitations and exclusions. One of those exclusions was added by an endorsement, “Form CG2101,” or “Sponsorship Exclusion.” Under this endorsement, coverage was excluded for: “‘bodily injury’ to any person while practicing for or participating in any sports or athletic contest or exhibition . . . sponsored” by the school.
Another endorsement, “Form CG2271,” was also added to the policy. Under this endorsement, or “No-Supervision Exclusion,” coverage for “‘bodily injury’ to any person while practicing for or participating in any sports or athletic contest or exhibition” was excluded “if there is no direct management, organization or supervision of such sports or athletic contest or exhibition by any insured.”
Finally, relevant to the instant dispute, the policy also contained an endorsement titled “General Liability Deluxe Endorsement: Schools.” This endorsement expanded the definition of “Insured” to include coverage for liability triggered by athletic trainers while acting within the scope of their duties for FMU.
Although PIIC assigned counsel to defend FMU in the underlying state action, while reserving its rights, it also sought a declaration that coverage is not afforded under the policy and that PIIC does not, therefore, have a duty to defend or indemnify.
The judge was receptive. First, it agreed that Edmond’s claims are excluded by the plain language of the policy.
“In Florida, in determining an insurer’s duty to defend, a court must look no further than ‘the allegations contained within the four corners of the complaint in the underlying action against the insured.’ Philadelphia Indem. Ins. Co. v. Yachtman’s Inn Condo Ass’n, Inc., 595 F. Supp. 2d 1319, 1322 (S.D. Fla. 2009) (King, J.).”
On the other hand, the court noted that where “the complaint against the insured alleges any facts which actually, or even potentially, fall within the scope of coverage under the policy, the insurer is obligated to defend the entire suit.” Yachtman’s Inn, 595 F. Supp. 2d at 1322. Conversely, “an insurer is relieved of its duty to defend if the alleged facts and legal theories do not fall within a policy’s coverage.” Wackenhut Servs., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 15 F. Supp. 2d 1314, 1321 (S.D. Fla. 1998) (King, J.). Also, because “the duty to defend is much broader than the duty to indemnify,” “a court’s determination that the insurer has no duty to defend requires a finding that there is no duty to indemnify.” Yachtman’s Inn, 595 F. Supp. 2d at 1322.
“Here, the Sponsorship Exclusion unambiguously bars coverage for Edmond’s underlying state claims,” wrote the court. “As a starting point, FMU itself agrees that this provision, at least when considered in isolation, ‘may prevent coverage as Ms. Edmond sustained bodily injury while in dance practice on the premises of FMU for an upcoming dance show.’ FMU’s argument, instead, is that the Sponsorship Exclusion is rendered unenforceable by what it describes as the wholly contradictory provision set forth in the No-Supervision Exclusion. To the contrary, however, the court finds no conflict or inconsistency between these two provisions.
“Instead, the court concludes that these two endorsements serve different functions. The first, the Sponsorship Exclusion, bars coverage for injuries suffered by participants in school-sponsored events. … In contrast, the No-Supervision Exclusion excludes coverage for injuries that arise where there was no control by the school over an athletic event taking place on its grounds.
“In order for the (PIIC) to exclude coverage for injuries suffered by participants in official, school-sanctioned events as well as in unofficial or more casual games or contests, not sponsored or organized by the school (for example, a pick-up basketball game on school property or an event wholly organized and run by an outside vendor), both endorsements are necessary. Despite FMU’s protestations, the court finds these two provisions do not create any ambiguities in the policy as a whole. Just because coverage would not be barred under the No-Supervision Exclusion (because the assistant coach was clearly supervising Edmond’s practice), it does not follow that coverage cannot be otherwise barred by virtue of the Sponsorship Exclusion.
“Further, contrary to FMU’s argument, nor does the Deluxe Endorsement—which FMU says expands coverage for an athletic trainer acting within the scope of his or her duties in response to a medical incident — support coverage in the face of the Sponsorship Exclusion. The Sponsorship Exclusion applies broadly, excluding coverage for injuries suffered during sponsored events; the Deluxe Endorsement merely expands the definition of an insured. This expanded definition, however, is inapplicable where coverage is barred by reason of the overarching exclusion. See Underwriters Safety & Claims, Inc. v. Travelers Prop. Cas. Co. of Am., 661 F. App’x 325, 327 (6th Cir. 2016) (holding that a policy’s sports-participant exclusion trumps its medical-malpractice extension and noting that ‘while the Endorsement broadens the policy’s definition of bodily injury, the Exclusion applies to the amended insurance policy as a whole’).”
Does University Negligence in Handling Concussion Trigger Policy?
Next the court turned to whether the policy was triggered by FMU’s alleged negligence, as the university contends.
“FMU … argues that, even if there is no coverage for the negligence alleged on the day of Edmond’s fall, coverage lies for FMU’s negligence in relation to its failure to address Edmond’s concussion the next day. Those allegations relate to FMU’s failure to follow a proper concussion protocol and failing to provide medical care the following day despite Edmond’s concussion-like symptoms. According to FMU, the alleged post-incident negligence claims are (1) covered under the policy’s Deluxe Endorsement and (2) are not barred from coverage by the Sponsorship Exclusion. The Court is not persuaded that FMU is right.
“To begin with, FMU has not cited any legal authority to support its position. Next, the court agrees with the Insurance Company that Edmond’s claims relating to FMU’s negligence in dealing with her concussion the following day ‘are not separate and distinct claims. ‘ Instead, the damages associated with these claims arise from the same bodily injuries Edmond sustained during the practice session with her coach and dance team the day before. See Nat’l Fire & Marine Ins. Co. v. Adoreable Promotions, Inc., 451 F. Supp. 2d 1301, 1310 (M.D. Fla. 2006) (holding that, under a similar policy, a boxer’s claim for negligent failure to provide medical care after a boxing match was excluded from coverage because those damages were dependent on bodily injury he sustained that was itself excluded from coverage).
“The court finds these post-incident claims are not independent or separable claims. … Coverage for all of Edmond’s claims is thus barred by the Sponsorship Exclusion.”
Philadelphia Indemnity Insurance Company v. Florida Memorial University and Aaliyah Edmond; S.D. Fla.; Civil Action No. 17-21133-Civ-Scola, 2018 U.S. Dist. LEXIS 61528; 4/9/18
Attorneys of Record: (for plaintiff) Gary I. Khutorsky, Litchfield Cavo, Ft. Lauderdale, FL. (for defendant) Leanne Kim Frazee Tellam, Robert Scott Newman, LEAD ATTORNEYS, Marlow Adler Abrams Newman & Lewis, Coral Gables, FL. and Joshua Keith Brown, Peterson & Myers, Lakeland, FL.
