December 9, 2019
The U.S. District Court for the Middle District of Florida has decided that the insurer has no duty to pay for losses ensuing from an incident involving a festival attendee and a flying beach ball. The case is Princeton Excess & Surplus Lines Ins. Co., v. Hub City Enters., No. 6:18-cv-1608-Orl-41GJK, 2019 U.S. Dist. LEXIS 182149 (M.D. Fla. Oct. 3, 2019).
During Rum Fest 2017, a music and dancing festival hosted by Hub City Enterprises (Hub City), an "extra-large, heavy inflatable beach ball" was "thrown into the crowd for people to push it around in the air." Robert Hunt, a festival attendee and also a defendant in this action, claims that during the festival, the beach ball was knocked towards him, and that he used his "outstretched arms and hands to push the extra-large beach ball away from him to prevent it from hitting him in the head" a movement which resulted in severe ligament and tendon injuries. The beach ball was provided by Hub City. Hunt sued Hub City for compensation for his injuries.
At the time of the incident, Hub City had a commercial general liability policy through Princeton Excess & Surplus Lines Ins. Co (Princeton Excess.) The policy required Princeton Excess to defend and indemnify Hub City against claims of bodily injury or property damage to which the insurance applied. Princeton Excess initially agreed to provide a defense, then later sought a declaratory judgment that they owed no duty to defend or indemnify the suit, arguing that the "Exclusion – Amusement Device" endorsement to the policy exclusion applied.
The amusement device exclusion provided that "[t]his insurance does not apply to any loss, claim, 'suit' or any obligation of any 'insured' to indemnify, defend or contribute jointly or severally with another because of 'bodily injury' . . . actually or allegedly arising directly or indirectly based on, attributable to, arising out of, involving, as a consequence of, resulting from, or in any way related to the ownership . . . or use of an 'amusement device'. . ."
The defendants argued that the clause which stated "to indemnify or contribute jointly or severally . . . . " modifies all four of the listed actions, "loss," "claim," "'suit'" and "obligation", so the exclusion would only apply to actions sounding in indemnification or contribution. The insurer argued that the phrase "to indemnify, defend or contribute jointly" applied only to a "'suit' or any obligation" but not to "loss or claim," and because the suit was also a "claim", the exclusion applied.
Each argument was rejected by the court for being unworkable and convoluted.
The court held that "[t]he amusement device exclusion. . . presents a strong argument for the use of the serial comma" and proceeded to read the exclusion with serial commas, concluding that " indemnify, defend[,] or contribute" applied only to "obligation." Thus, any "suit" involving an "amusement device" would be subject to the amusement device exclusion.
Placing another serial comma's into the portion of the exclusion that defined "amusement device", the court held that the extra-large, inflatable beach ball was an "amusement device" so Princeton Excess had no duty to defend or indemnify the defendants in the lawsuit.
Editor's Note: Every insurer and attorney knows that the mistaken presence or absence of a comma or semicolon can determine whether or not coverage will apply in certain scenarios. In a case out of Maine in 2017, a company could have lost millions of dollars in a class action dispute due to the lack of a serial comma.
And a court ruled in 2015 that BP had no coverage for an oil spill under their Transocean insurance policy due to a missing comma.