They were in a recreational setting (smoking area) within the premises.

The altercation was spontaneous and not directly related to a supervised therapeutic activity.

Based on these facts, we would like to clarify:

Would this incident potentially fall under coverage provided by the Commercial General Liability form CG 00 10 04 13 (Premises/Operations), or could the Professional Services exclusion (including Designated Professional Services, if applicable) be triggered in this scenario?

We would appreciate your interpretation regarding whether this situation is considered part of the facility's general operations exposure or if it could be deemed to arise out of professional services.

Thank you in advance for your assistance.

Puerto Rico Subscriber

It is our opinion that coverage for the altercation could indeed fall under the general liability coverage in form CG 00 01. The professional liability exclusion would not be triggered in that the standard exclusion excludes liability for injury or damage arising out of the insured's rendering or failure to render professional services. As described, professional services were not involved in the altercation, so that exclusion should not be used to deny coverage. We have reviewed a few court cases and that while they did not have the same situation you describe, unless the triggered incident was truly of a professional nature, the courts deferred coverage to the CGL.

In interpreting the scope of the professional liability exclusion, many courts look to the definition of professional services given by the Nebraska Supreme Court in 1968 in Marx v. Hartford Acci. & Indem. Co., 183 Neb. 12, 157 N.W.2d 870, 1968 Neb. LEXIS 484: "The act or service must be such as exacts the use or application of special learning or attainments of some kind… A 'professional' act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual."

In Buckeye Ranch, Inc. v. Northfield Ins. Co., 134 Ohio Misc. 2d 10, 2005-Ohio-5316, 839 N.E.2d 94, 2005 Ohio Misc. LEXIS 551 the Ohio Court of Common Pleas held that a professional services exclusion did not apply to a claim against an insured treatment facility for assigning a nine-year old to the same room as an aggressive fifteen-year-old who sexually assaulted him. The court reasoned that room assignment did not arise out of the insured's professional service.

In Johnson v. Acceptance Ins. Company/Acceptance Indem. Ins. Co., 292 F. Supp. 2d 857, 2003 U.S. Dist. LEXIS 21833, the U.S. District Court for the Northern District of West Virginia held that a professional services exclusion did not apply to a claim against an insured group home for failing to supervise the claimant and prevent him from being struck by a car upon leaving the premises.