Professional Services Exclusion Applicable in Wrongful Death Case

In QBE Ins. Corp. v. Brown & Mitchell, Inc., 2009 WL 4855487 [C.A.5 (Miss.), 2009], Eleazar Casiano died when a trench collapsed during a sewer installation job for which Brown & Mitchell, Inc. (BMI) served as the project engineer. At the time of his death, Casiano was an employee of Big Warrior Corporation, the general contractor performing the sewer installation. Tranqualino, his mother, filed a wrongful death action against BMI, alleging that as the firm overseeing the project, BMI owed a duty to Casiano to perform its professional responsibilities as engineers in accordance with the appropriate standards and that, with negligence and reckless disregard, it breached this duty by failing to take steps to ensure the trench's structural integrity.

BMI sought coverage and defense benefits from QBE, with whom it had an excess CGL policy. The policy provided coverage to BMI for “bodily injury” caused by an “occurrence,” and defined an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy expressly excluded claims for bodily injury arising from the rendering or failure to render professional services as follows: “This insurance does not apply to … 'bodily injury' or 'property damage' due to the rendering or failure to render any professional service. This includes but is not limited to: … engineering services, including related supervisory or inspection services;….”