When a festival-goer is injured by a flying beach ball, does a general liability insurer have to pay for any ensuing loss? Is the serial comma (sometimes referred to as the Oxford comma) dead? Both questions were addressed by a Florida federal court when deciding who was responsible to pay for a party foul.
In May 2018, Robert Hunt brought a lawsuit seeking compensation for injuries he sustained while attending a festival called Rum Fest 2017. During the event, while a crowd listened to music and danced, a jumbo inflatable beach ball was thrown into the crowd for people to bounce around in the air. When the beach ball was pushed toward Hunt, he pushed it away with his outstretched arms, which he alleged resulted in severe ligament and tendon injuries.
The defendants sued by Hunt sought coverage under a commercial general liability policy. The insurer agreed to provide a defense, but later sought a declaratory judgment on whether the injuries alleged in Hunt’s lawsuit were subject to a policy exclusion labeled “Exclusion – Amusement Device”, which provided in part as follows:
This insurance does not apply to any loss, claim, ‘suit’ or any obligation of any ‘insured’ to indemnify, defend or contribute jointly or severally with another because of ‘bodily injury’, ‘property damage’, ‘personal and advertising injury’ or ‘injury’, actually or allegedly arising directly or indirectly based on, attributable to, arising out of, involving, as a consequence of, resulting from or in any way related to the ownership maintenance, operation, sponsorship, instruction, supervision, set-up or take-down or other use of an ‘amusement device’…
The defendants argued that the exclusion did not apply because “to indemnify, defend or contribute jointly” modified all four of “loss, claim, ‘suit’ or any obligation”, such that the exclusion applied only to actions sounding in indemnification or contribution. On the other hand, the insurer argued that “to indemnify, defend or contribute jointly” applied only to “‘suit’ or any obligation”, but not to “loss or claim,” and because Hunt’s lawsuit was also a “claim”, the exclusion applied.
The court rejected both interpretations as convoluted and unworkable.[1] Instead, the court held that “[t]he amusement device exclusion…presents a strong argument for use of the serial comma.” Id. Reading the exclusion with serial commas, the court held that “indemnify, defend[,] or contribute” applied only to “obligation”. Thus, any “suit” involving an “amusement device” would be subject to the exclusion. Reading further serial commas into the portion of the exclusion defining “amusement device”, the court held that the extra-large, inflatable beach ball constituted an “amusement device”. As a result, the insurer had no obligation to defend or indemnify the defendants in Hunt’s lawsuit.
In short, the court spiked both sides’ interpretations of
the exclusion and scored a “kill” on the failure to use the serial comma.
[1] Princeton Excess and Surplus Lines Insurance Company v. Hub City Enterprises, Inc. et al., No. 6:18-cv-1608-Orl-41GJK (M.D. Fla. Oct. 3, 2019).