Federal Court Crusades for Serial Comma, Holds No Coverage for Inflatable Beach Ball

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, 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 HuntaEUR(TM)s lawsuit were subject to a policy exclusion labeled aEURoeExclusion aEUR" Amusement DeviceaEUR?, which provided in part as follows:

This insurance does not apply to any loss, claim, aEUR~suitaEUR(TM) or any obligation of any aEUR~insuredaEUR(TM) to indemnify, defend or contribute jointly or severally with another because of aEUR~bodily injuryaEUR(TM), aEUR~property damageaEUR(TM), aEUR~personal and advertising injuryaEUR(TM) or aEUR~injuryaEUR(TM), 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 aEUR~amusement deviceaEUR(TM)aEUR|

The defendants argued that the exclusion did not apply because aEURoeto indemnify, defend or contribute jointlyaEUR? modified all four of aEURoeloss, claim, aEUR~suitaEUR(TM) or any obligationaEUR?, such that the exclusion applied only to actions sounding in indemnification or contribution. On the other hand, the insurer argued that aEURoeto indemnify, defend or contribute jointlyaEUR? applied only to aEURoeaEUR~suitaEUR(TM) or any obligationaEUR?, but not to aEURoeloss or claim,aEUR? and because HuntaEUR(TM)s lawsuit was also a aEURoeclaimaEUR?, the exclusion applied.

The court rejected both interpretations as convoluted and unworkable.[1] Instead, the court held that aEURoe[t]he amusement device exclusionaEUR|presents a strong argument for use of the serial comma.aEUR? Id. Reading the exclusion with serial commas, the court held that aEURoeindemnify, defend[,] or contributeaEUR? applied only to aEURoeobligationaEUR?. Thus, any aEURoesuitaEUR? involving an aEURoeamusement deviceaEUR? would be subject to the exclusion. Reading further serial commas into the portion of the exclusion defining aEURoeamusement deviceaEUR?, the court held that the extra-large, inflatable beach ball constituted an aEURoeamusement deviceaEUR?. As a result, the insurer had no obligation to defend or indemnify the defendants in HuntaEUR(TM)s lawsuit.

In short, the court spiked both sidesaEUR(TM) interpretations of the exclusion and scored a aEURoekillaEUR? 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).

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