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Cincinnati Ins. Co. v. Am. Line Bldrs. Apprenticeship Training Program3/2/1994
GRADY, Presiding Judge.
This is an appeal from a summary judgment in an action for a declaratory judgment brought by an insurer to construe an exclusionary provision in a policy of liability insurance. The trial court held that the exclusion did not apply and granted summary judgment for the insured. Appellant Cincinnati Insurance Company ("CIC") argues on appeal that the trial court erred when it found that the exclusion did not apply and should, instead, have granted summary judgment to CIC.
Appellee American Line Builders Apprenticeship Training Program ("ALBAT") is a proprietary school engaged in the education and training of persons for skilled trades. It is headquartered in Montgomery County. It maintains a policy of liability insurance with CIC.
Appellee Walter Lang was enrolled in one of ALBAT's training programs in 1989. While working under the direction of an ALBAT instructor, Lang was electrocuted when a chain hoist he was using made contact with high voltage electrical lines. Lang suffered severe injuries. The incident occurred in the state of Indiana. Lang brought an action there against ALBAT and others, alleging that his injuries were "due to the negligence, carelessness and the liability producing conduct and omissions of all named Defendants." The action has been removed from state court to federal court.
The action for declaratory judgment underlying this appeal was brought in Montgomery County. It sought a declaration of whether or not CIC was required to defend and/or indemnify ALBAT in respect to Lang's claim for relief in Indiana. It seems undisputed that the basic provisions of the policy would require coverage. The only dispute arises from the following policy provision:
"It is agreed that such insurance as is provided by the policy for bodily injury , personal injury , or property damage does not apply if such injury or damage arises out of any claim for Professional Liability or Malpractice made against an Insured caused by any negligent act, error, or omission of an Insured or any other person for whose acts an Insured is legally liable in the conduct of any business, trade, profession, municipal service, such as, but not limited to, law enforcement departments, fire departments (including volunteer), health department, ambulance service, paramedics, lawyers, or judges."
CIC argued that it should not be required to defend or indemnify because the injury arose out of ALBAT's conduct of a business, trade, or profession. The trial court rejected that argument, and focused instead on the nature of the "claim" that Lang brought in his action. The court stated:
"The applicability of the `professional liability and malpractice' exclusion is unclear. Part IV of the Personal Umbrella Liability Endorsement provision of the policy does list engineers as `professionals.' However, engineers only account for four out of forty-four instructors in the program. Further, Lang had never received instruction from an engineer, and no engineer was present when the accident occurred.
"Neither policy specifically includes teachers, educational-type professionals, or linesmen in its exclusion for professional liability or malpractice. None of these classifications included in the common law definition for professional malpractice. To include teachers, educational-type professionals, or linesmen in the policy's definition of `professional' would amount to the construction of an ambiguous term liberally in favor of CIC, which is not justified in this case. Thus, the Referee is correct in concluding that since Lang was not under the supervision of a professional nor ha
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