No Coverage for Wrongful Death Suit against Design Group due to Professional Services Exclusion
October 30, 2017
This month, the United States Court of Appeals for the Eleventh Circuit decided that the design and construction of an intersection constituted a “professional service” for which coverage is excluded under the CGL and Umbrella insurance policies. The case is Witkin Design Group, Inc. v. Travelers Property Casualty Co. of America, No. 17-10478 (11th Cir. Oct. 19, 2017).
The case arose out of a car accident occurring at an intersection in a community in Broward County, Florida. The accident resulted in the death of an eleven-year-old boy, Jose Scott. Scott's estate brought a wrongful death suit against several defendants, including Witkin Design Group, Inc. (Witkin) who designed and constructed the intersection where the accident occurred. The complaint listed Witkin as the “landscape architect” for the community where the accident occurred. The record does not specify when Witkin constructed the intersection and what Witkin did other than design and build the intersection. Witkin asked Travelers to either defend or indemnify the wrongful action suit. Witkin had both a CGL policy and a Commercial Excess Liability Insurance Policy through Travelers. Both policies provide coverage for products-completed operations claims, and professional services exclusions for any “bodily injury or property damage arising out of the rendering of or failure to render any professional services” with “professional services” defined as any service requiring specialized skill or training. Both policies used the same wording for those two sections.
Travelers refused to defend or indemnify based on the professional services exclusions, arguing that designing and constructing the intersection is a professional service. Witkin sought a declaration that Travelers must defend or indemnify the wrongful death action under the two insurance policies.
The decision comes down to whether or not the act of designing and constructing an intersection is a “service requiring specialized skill or training”. The policies in question provide some examples of professional service, including “supervision, inspection, quality control, architectural, engineering or surveying activity or service. . . construction contracting, construction administration, construction management. . .” The court stated that the provisions are clear, apply to any service requiring specialized skills or training, and there is no ambiguity as to what the courts count as a professional service.
Editor's Note:
The professional services exclusion is a significant part of the CGL and Umbrella policies. The exclusion segregates general liability from professional exposures (errors and omissions), which should be purchased through a separate policy to ensure full coverage.