A federal district court in Virginia, citing Facebook posts, has ruled that care provided by a woman to a child in her home was “child care services” and excluded from coverage under the “plain meaning” of her homeowners' insurance policy, rather than permitted “babysitting” services.
The Case
On July 12, 2013, while Trudy T. Rollins was caring for K.L.P., a minor, in Ms. Rollins' home, the family dog allegedly bit K.L.P., necessitating medical treatment. Through her mother, Tracie Lovejoy, K.L.P. retained counsel to pursue the claim.
At the time of the incident, Ms. Rollins held a homeowners' insurance policy issued by State Farm Fire and Casualty Company.
State Farm sought a declaratory judgment that it was not responsible for any claims of Ms. Rollins, K.L.P., or Ms. Lovejoy, asserting that, at the time of the injury, K.L.P. was in the care of Ms. Rollins because of child care services.
Ms. Rollins asserted that she was only babysitting.
The insurer moved for summary judgment.
The State Farm Policy
The State Farm policy provided
Personal Liability
coverage under
Coverage L
to an insured:
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence
Additionally, the policy provided for:
Medical Payments to Others
under
Coverage M
, which stated:
We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury
The child care services exclusion stated:
Coverage L and Coverage M do not apply to (i) Any claim made or suit brought against any insured by:(1) any person who is in the care of any insured because of child care services provided by or at the direction of:
(a) any insured
(b) any employee of any insured; or
(c) any other person actually or apparently acting on behalf of any insured; or
(1) any person who makes a claim because of bodily injury to any person who is in the care of any insured because of child care services provided by or at the direction of
(a) any insured;
(b) any employee of any insured; or
(c) any other person actually or apparently acting on behalf of any insured.
This exclusion does not apply to the occasional child care services provided by any insured, or to the part-time child care services provided by any insured who is under 19 years of age.
The business pursuits exclusion stated:
Coverage L and Coverage M do not apply to: … (b) bodily injury or property damage arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured. This exclusion does not apply to: …The Court's Decision(3) incidental business activities of any insured for babysitting, caddying, lawn care, newspaper delivery and other similar activities…
The court granted State Farm's motion.
In its decision, the court noted that, in March 2013, Ms. Rollins posted the following on Facebook:
I am doing daycare in my home and have 3 children now but am looking for a few more, if you need or know of someone please give me a call, XXX-XXXX or XXX-XXXX. Thank you!
The court also pointed out that, on June 18, 2013, Ms. Rollins posted a message on Facebook that stated:
I am still looking for a couple more children to care for in my home in Poquoson, I will also do before and after school in the fall. My hours start at 6 am. if interested please give me a call on cell XXX-XXX-XXXX. Thanks!!!!!!!!!!
The court found that, shortly after viewing the second Facebook posting, Ms. Lovejoy contacted Ms. Rollins regarding the potential care of K.L.P.; that K.L.P. and Ms. Lovejoy were unrelated to Ms. Rollins although they had known her for a number of years; that Ms. Rollins and Ms. Lovejoy agreed that Ms. Rollins would provide care at a rate of $25 per day; and that Ms. Rollins would be able to receive K.L.P. in her home every weekday.
The court also found that K.L.P. began attending care in Ms. Rollins' home on June 24, 2013; that after the first week of care, Ms. Lovejoy paid Ms. Rollins $125; that after the second week of care, Ms. Lovejoy paid Ms. Rollins another $125; and that she intended to pay an additional $125 for the third week of care but did not do so after the incident.
The court then ruled that the services provided to K.L.P. were day-in, day-out “child care services” as opposed to “babysitting,” which, the court said, was care “requested for a clear, limited time period of a few hours” and which was excepted from the business pursuits exclusion.
The court concluded that K.L.P. was not an irregular or an infrequent users of Ms. Rollins' services and, therefore, the care provided to K.L.P. “most certainly” fit within the “unambiguous child care services exclusion” of the State Farm policy.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].