GAME FOR “AUDIENCE” ENDS IN UNINSURED INJURY
A rodeo in Florida was sponsored by the Volusia County Cattlemen’s Association. It took place near Orlando an included a game which those in attendance for entertainment, etc., could play, as it were off the cuff. The participants did not need to be there as actual competitors. In this sense, there were part of an audience. The game took place during some sort of break during the competition.
The game was call “cash grab.” A person could win money by grabbing something attached to a unfetter bull–a free roaming bill. A small of cash? A ribbon? A picture of Al Gore? People ran about; bulls ran about. A woman (“W”) entered the game and had taken only a few steps when she was gored.
The W sued the rodeo sponsor. It went to its insurer seeking coverage under a CGL policy. (Commercial General Liability policies are designed to apply generally to many sorts of businesses. Particular types of business get additions or subtractions, and these are to be found in exclusions. Because of the word General,” no doubt, the insured “assumed” the policy applied to injuries in “all events.” After all, that’s what the insuring agreement said.
Unfortunately for it that policy contained two exclusions (HSO CG 21 01 11 85); it is titled “Exclusion — Athletic or Sports Participants,” and has been copyrighted since 1984. The policy also contained an exclusion entitled “Performance Exclusion.” I shall discuss only the ASP exclusion.
The insurer, Western World Insurance Co., denied coverage on the basis of the exclusion. Cattlemen’s sued in federal court. The district court “sustained” the insurer’s denial by granting it summary judgment. The court’s basic reasoning was straightforward.
The ASP exclusion is simple; it excludes coverage as follows: “With respect to any operations shown in the Schedule [in this case a rodeo], this insurance to ‘bodily injury[,]’ i.e., a defined term in all CGL policies, though the meaning of the word is obvious enough, to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” Cattlemen’s sponsored the rodeo and this event–and obviously it was an “event.” It was plainly a contest or an exhibition. It was an athletic event since people in the game were running around and that was a requirement of the game. It was a kind of sporting event, although a rather chaotic one. And W was participating (or, well, maybe practicing).
Cattlemen apparently took one worthless position after another. The worst of the bunch was the idea that W was neither participating or practicing for participating. The premise for this conclusion was that she had just started to participate–taken 10 steps which on the field and part of the contest.
(Maybe cattlemen’s argument was that there was a fact issue as to whether W was already participating or simply walking on to the field in order to participate. The idea would be that there was a fact issue as to whether she was on her way to participate or actually participating, so that summary judgement couldn’t be granted. If there was no fact evidence in an plausible affidavit as to how W saw herself–in the game or on her way to the game–this would be a silly argument, and not just an implausible one.)
In any case, the rodeo lost and will almost certainly lose in an appeal to the 11th Circuit Court, the relevant court of appeals, if one is pursued. The cause number for the case in district court is 6:15-cv-1239-Orl-41DAB.
Question: Would there be coverage if W fallen from a low flying advertising ballon over the field, or from the rafters of a stadium, and had run like the dickens to get off the playing ground to avoid being gored? Answer: Probably so.
*Michael Sean Quinn, Ph.D., J.D.
1300 West Lynn Suite 208
Austin, TX 78703