Ms. Posa sued the Robels, seeking compensation for her injuries. She alleged that the Robels, doing business as Robel's Orchard, had failed to maintain the orchard in a safe manner and also had failed to properly instruct her on use of the ladder.

The Robels' homeowners' insurer, Western National Assurance Company, asserted that the Robels' policy did not provide liability coverage for the couple's business operations. Western National initiated a declaratory judgment action, and moved for summary judgment.

In response to the summary judgment motion, Ms. Posa contended that the Robels' business was farming and that the occasional self-pick customer was not within the scope of the farm's primary operation.

The trial court determined that the business exclusion provision was not ambiguous and operated to deny coverage for Ms. Posa's injuries.

Ms. Posa appealed, arguing that there were at least factual questions about whether or not the Robels were engaged in the “business” of farming, whether self-service picking fell within the farming business, and whether instructing on proper ladder use fell within the couple's “business.”

The Western National Policy

The Western National policy excluded from liability coverage any:

bodily injury . . . resulting from activities related to the “business” of an “insured” 

The policy excluded from the medical payments coverage:

a person who is on the “insured premises” because a “business” is conducted . . . on the “insured premises.” 

It also provided:

“Business” means a trade, a profession, or an occupation including farming, all whether full or part time. 

The appellate court affirmed, finding that self-picking operations were part of the business operations of the Robels' orchard, and that the business exclusion to the homeowners' policy precluded coverage for Ms. Posa's claims.

In its decision, the appellate court stated that the “only conclusion to draw from the evidence” was that the Robels were engaged in the business of farming. “They had a cherry orchard and sold the produce to the public,” the appellate court said. It added that that was how farming worked; a crop was planted “and eventually harvested” for the benefit of those who consumed the crop.

Whether or not the Robels made much money from u-pick operations did not change the nature of their business, the appellate court continued. According to the appellate court, the fact that there were different options for harvesting the produce also did not alter those facts because “the identity of the harvester” did “not change the nature of a farming operation.”

The appellate court observed:

It was the orchard produce that drew Ms. Posa to the Robel farm on that fateful day. The fact that the Robels may not have been working that particular day [did not] change the nature of their operation. They farmed by producing a crop, not by harvesting seven days a week.

Similarly, the appellate court ruled, using a ladder to pick cherries from a cherry tree was “part of the farming task of harvesting the crop.” Any negligence in failing to properly instruct on the use of the three-legged ladder was related to the family's farming operations, the appellate court decided.

In short, it concluded, the business exclusion applied to the Robels' cherry orchard, and the fact that the Robels lacked a business operation policy was “a financial tragedy for all parties involved in this litigation.”

The case is Western National Assurance Co. v. Robel, No. 35394-0-III (Wash. Ct.App. Oct. 23, 2018). Attorneys involved include: For Appellant: Monica Brennan, James Vernon and Weeks PA, Coeur D Alene, ID. For Respondent: Eric Roche Byrd, Bennett Bigelow & Leedom, P.S., Spokane, WA.