Not to disagree with the underwriter out of spite or anything, but we think that this is just the kind of thing that would be covered by the vets CGL form (with some caveats well explore). The professional liability policy, we believe, doesnt enter into it.

Elmer said that the underwriter referenced the professional liability exclusion in the CGL. Probably the clause he is referring to is the exclusionary endorsement universally added to CGL forms when writing classes of business such as doctors, lawyers and vets.

In the ISO program, this is CG 21 58, which is mandatory for veterinarian or veterinary hospital risks. It excludes diagnostic testing, surgical or dental procedures used in the prevention, detection or treatment of any sickness, disease, condition or injury in animals, including the furnishing of drugs and other supplies. It also kaputs coverage for rendering or failing to render advice or instruction.

That is the professional liability exclusion.

There is another provision in the 2001 CGL form in the “Who Is An Insured” section that makes employees of the insured insureds under the policy, except for some incidents, including providing or failing to provide health care services.

So we see where the underwriter is forming his or her opinion. Professional liability is excluded and employees of the insured are not insureds for incidents arising out of providing health care (a professional liability).

But thats a dog that wont hunt. Or a fish that wont swim.

Providing pet sitting services isnt a professional service subject to the professional liability exclusionary language. Sorry. It just isnt.

You dont go to school for a zillion years to be a pet sitter. It aint, as the saying goes, brain surgery.

Professional services are those things the trained specialist can do in his professional capacity that form the basis of what he or she is: diagnosing and treating illnesses for a medical professional; reviewing, drafting and preparing contracts and providing legal advice for attorneys.

A professional liability exclusion applies to things done in the professionals professional capacity, not incidental operations related to the running of a business. Thats why a doctors office has both a CGL and a professional liability policy.

Theres another aspect to this thing that I almost overlooked, but that the FC&S CGL expert analyst reminded me of, after he, too, gave it a second thought.

Were not dealing with bodily injury liability here, in the event that a pet being sitted is hurt.

Bodily injury is, by CGL policy definition, something that happens to a person. The professional liability exclusion contemplated bodily injury. The “Who Is an Insured” provision is speaking to bodily injury. Im sorry for all the pet lovers out there, but damage to an animal is not bodily injury for coverage purposes; it is property damage.

Any action for injury to a pet in the pet-sitters care is going to be for property damage, not bodily injury.

That changes the spots on this animal a bit. It also allows me to make the point that, as yet, no court has found liability for damage to an animal beyond what the animal is worth–meaning that there can be no emotional distress or punitive damages awards for the death of or damage to a pet. At least not until California passes an animal loss of consortium statute (really, its under consideration).

Property damage liability coverage is affected by the infamous care, custody and control exclusion. There is no coverage for property in the custody or control of the insured. It gets a bit tricky. By specific provision, an employee is not considered an insured for property damage to property in his care, custody or control anyway. So no insurance coverage for the employee if he injures Fido.

But as for the named insured (the vet), he would have property damage coverage for property damage to the animals in his employees care, because the exclusion says there is no coverage for damage to property in the care, custody or control of an insured (which the employees are not), and an insured is not the insured, who is the named insured (the vet).

We see the exposure more in the light of a cleaning service or other in-home service provider rather than a professional liability exposure.

The events that might give rise to a claim here are better handled under the vets CGL and would probably not be covered under his professional liability policy. The type of service to be provided by the staff of the vet (or someone hired specifically to do this) does not fall under professional services: opening a door, letting the dog out, walking the dog, providing food and water, etc.

What the vet here needs to cover are the exposures arising from the employee leaving the home unlocked, failing to feed or water the animals, or breaking something in the house while there to attend to the pets.

This would be true even if the vet found himself having to do the work in the event someone didnt show up at work, as happens sometimes. Unless the doctor crossed the line and performed something he could do only in his skilled capacity, the doctors CGL will cover the pet sitting operation, except for property in his care, custody or control.

That would eliminate coverage for damage to the animals themselves. But what if the doctor knocked over an antique vase while feeding the dog? That raises the old bugaboo of just what is it that is in the care, custody or control of a worker on a premises.

Is it the animals that are in the care, custody or control of the vet or is it the entire premises?

Is it the specific part the contractor has been called in to repair (the bathroom sink pipe), or is it the entire plumbing system (water damage to the basement when something goes amuck)?

That issue will be taken up in our next column, which we will devote to the care, custody and control exclusion. For now, we simply note that the courts have been all over the place on this one.

(Note: The FC&S Bulletins deals with the distinction between general and professional liability in its analysis piece, Professional Liability and General Liability Insurance: When Professional Liability Coverage is Appropriate. This is in the Casualty and Surety volume, Public Liability, M-14. The care, custody and control exclusion is treated in the same volume.)

Bruce Hillman, JD, is Editorial Director of Risk and Insurance Markets for the Professional Publishing Group of The National Underwriter Company, in Erlanger, Ky. Questions and comment are invited at [email protected].

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, June 2, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.