This story is reprinted with permission from FC&&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.
Athletes and fitness enthusiasts often enjoy participating in obstacle courses or fitness “challenges” organized by companies that specialize in similar events, for example, the Tough Mudder competitions. But what happens when someone is injured participating in such an event? What insurance coverage is available — if any?
In one recent case, a federal district court in Florida has ruled that exclusions in an insurance policy issued to a company that operated an obstacle course precluded coverage for claims by a participant in a race that he had been injured on the course.
|The case
Adam Durden sued Dirty Foot Mud Ranch, LLC, d/b/a Dirty Foot Adventure Run for injuries he allegedly sustained while competing in an obstacle course race at Dirty Foot. Durden alleged that:
— Dirty Foot leased the property and designed and created an obstacle course with the intention of inviting athletes to race on the obstacle course, but it was negligent in the design and creation of the mud pit by failing to include the proper water depth of the pit;
— After creating the obstacle course, Dirty Foot and another company organized a race and invited athletes, including Durden, to participate; and
— Durden suffered bodily injuries while competing in the race.
Maxum Indemnity Company, which had issued a commercial general liability (CGL) insurance policy to Dirty Foot, denied coverage because Durden alleged that he had been injured during a mud race obstacle course on Dirty Foot's property and its policy excluded coverage for claims by athletic or sports participants in any performance, contest, sport, or event.
Maxum then asked a Florida district court to declare that it did not owe any duty to defend or indemnify Dirty Foot Mud in Mr. Durden's lawsuit.
Maxum moved for judgment in its favor.
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|The Maxum policy
The commercial general liability insurance policy Maxum issued to Dirty Foot provided coverage for bodily injury and property damage liability as follows:
We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages even if the allegations of the “suit” are groundless, false or fraudulent. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply…
The policy defined “bodily injury” to mean “bodily injury, sickness or disease sustained by a person, including death resulting from these at any time….”
The policy also included an exclusion for athletic or sports participants and performers:
This insurance does not apply to any claim or “suit” for “bodily injury,” property damage,” “personal and advertising injury” and we shall have no obligation to indemnify or defend any insured for “bodily injury,” “property damage,” or “personal and advertising injury” from any person while participating or performing for or in any sports or athletic contest, event, or exhibition that you sponsor, including practice for such contest, event or exhibition.
In addition, the policy provided a further exclusion for participants and contestants:
This insurance does not apply to any claim or “suit” for “bodily injury,” “property damage,” “personal and advertising injury” and we shall have no obligation to indemnify or defend any insured for “bodily injury,” “property damage,” or “personal and advertising injury” which occurs while any person is preparing for, practicing for or participating in any performance, contest, sport or event.
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|The district court's decision
The district court granted Maxum's motion.
In its decision, it ruled that because Durden allegedly had been injured while participating in Dirty Foot's obstacle course race, Maxum had no duty to defend or indemnify Dirty Foot based on the policy's athletic and sports participant exclusion.
The district court also found that the policy's participants and contestants exclusion applied because Durden allegedly had been injured while participating in the obstacle course race.
The case is Maxum Indemnity Co. v. Dirty Foot Mud Ranch, LLC.
Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at [email protected].
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