TOWN OF SURFSIDE, FLORIDA, APPELLANT,
v.
MORRISON ASSURANCE COMPANY, INC., APPELLEE

Fla. 3d DCA | 1981-02-24
No. 80-1064
Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
394 So. 2d 530 Florida District Court of Appeal, Third District (1981) Positive Treatment
Cited by 4 cases

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Synopsis

The Town of Surfside appeals a summary judgment denying insurance coverage for a child's injury sustained while retrieving a ball after a supervised softball game ended. The court holds that the injury occurred outside the park after the game concluded, and therefore does not fall within the insurance policy's athletic participation exclusion.


Holding

The insurance policy's athletic participation exclusion does not apply because Alfred sustained the injury while outside the park after the game had ended, and therefore was not participating in an athletic activity at the time of the injury.


Headnotes

[1] Insurance policy exclusionary clauses are construed liberally against the insurer and in favor of the insured.

[2] An injury sustained after an athletic activity has concluded, while retrieving equipment outside the immediate playing area, does not constitute participation in an athle…

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Key Quotes

“exclusionary clauses must be construed liberally against the insurance company and in favor of the insured”

Establishes the fundamental principle of policy interpretation that guided the court's analysis of the athletic participation exclusion.

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Facts & Procedural History

Alfred DeBlasio was participating in a supervised softball game at Surfside Park. After the game ended, the ball was hit into the water beyond the par…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

In this appeal, the Town of Surfside challenges an adverse summary judgment which resulted in a denial of insurance coverage for bodily injuries sustained by a child who had been playing ball at a Surf-side park. We hold that the insurance policy furnished the Town of Surfside by Morrison Assurance Company did not exclude the injury sustained. We therefore reverse the summary judgment.

The complaint for declaratory relief filed by Morrison Assurance Company alleged that Alfred DeBlasio had been participating in a softball game at Surfside Park under the supervision of Surfside counselors when the ball was hit into the water beyond the confines of the park. Alfred and another boy went to retrieve the ball, which was floating near the seawall. Alfred saw a big stick on the other side of a bridge and went to get it. Unfortunately, he raised his head while he was still underneath the bridge and injured himself. Alfred’s deposition disclosed that the game was over and the other players were waiting for him to return with the ball, the last one available. He did not think they intended to continue the game.

The trial court ruled that Alfred’s injuries resulted from his participation in an athletic activity and were excluded from coverage under the policy.

The contested exclusionary clause states: ATHLETIC PARTICIPATION EXCLUSION: It is agreed this insurance does not apply to bodily injury to any and all persons practicing, instructing, or participating in any physical training, sport, athletic activity or contest.

The issue to be decided is whether Alfred’s acts constituted participation in an athletic activity. In reaching our decision, we are aware that exclusionary clauses must be construed liberally against the insurance company and in favor of the insured. Tropical Park, Inc. v. United States Fidelity & Guaranty Co., 357 So. 2d 253 (Fla.3d DCA 1978).

The Supreme Court of Arkansas considered a similar exclusion in Glenn Falls Group Insurance Co. v. Simpson, 246 Ark. 654, 439 S.W. 2d 292 (1969). In that case, lightning struck golfers who had sought refuge under a tree when rain interrupted their game at the insured’s country club.

The court affirmed judgment for the insured holding that although the injured golfer had been participating in a golf game, he sustained the injury while standing under a tree. Under similar circumstances, other jurisdictions have held that injuries were not sustained during athletic participation and thus were not excluded from insurance coverage. See Hockey Club of Saginaw, Inc. v. Insurance Company of North America, 468 F.Supp. 101 (E.D.Mich. 1979); Zoller v. State Board of Education, 278 So. 2d 868 (La.App.1973); Fireman’s Fund Indemnity Co. v. Hudson Associates, Inc., 97 N.H. 434, 91 A. 2d 454 (1952); Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Association, 84 N.M. 779, 508 P. 2d 588 (1973).

These authorities persuade us that the trial court’s finding that Alfred’s injury “came as a result of his participation in an athletic activity” does not resolve the issue.

We conclude that since the injury was sustained while Alfred was outside the park after the game had ended, he was not participating in an athletic activity at the time he was injured.

Reversed and remanded for further proceedings.


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Citator

Cited By

  • …y that fell within the exclusion. See also General Insurance Co. v. Academy of Visitation at St. Louis, 598 F.Supp. 1131 (E.D.Mo.1984) (following Morrison Assurance Co. v. School Board of Suwannee County); Town of Surfside v. Morrison Assurance Co., 394 So. 2d 530 (Fla. 3d DCA 1981); Morrison Assurance Co. v. City of Opa-Locka, 389 So. 2d 1079 (Fla. 3d DCA 1980). The purpose of exclusions such as the one in Jefferson’s policy is to except from liability coverage the risks which are normally encountered in pr…
  • Morrison Assurance Co. v. The Sch. Bd. OF Suwannee Cnty., 414 So. 2d 581 (Fla. 1st DCA 1982)
    …rd District which has had more than one opportunity to examine the identical exclusion and has found it unambiguous. See Morrison Assurance Co. v. City of Opa-Locka, 389 So. 2d 1079 (Fla. 3d DCA 1980), and Town of Surfside v. Morrison Assurance Co., 394 So. 2d 530 (Fla. 3d DCA 1981). Nor does another policy provision, an exemption under the “Teacher’s Liability Coverage Endorsement,” create an ambiguity as appellee suggests. By its clear terms, the endorsement adds “all teachers” to the named insureds, but n…

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