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Watkins v. Brown9/7/1994
FREDERICK N. YOUNG, Judge.
Cincinnati Insurance Company ("CIC") appeals from a declaratory judgment finding that the business exclusion provision of the homeowner's insurance policy Thelma Brown had with it did not apply to baby-sitting services conducted in her home. After carefully reviewing the homeowner's policy, we conclude that Brown's baby-sitting of Danielle Watkins was a business as contemplated in the business exclusion provision, and reverse the judgment of the trial court.
The Watkinses are both employed with Dayton City Schools. They approached Brown, a longtime friend of the family, to baby-sit their infant daughter Danielle when they returned to work for the 1991-1992 school year. The parties negotiated a fee of $40 per week to compensate Brown for her time and trouble, and the Watkinses promised to bring all of the food, formula, diapers, toys, and other supplies Danielle would need every day. Brown agreed to this arrangement. She began baby-sitting Danielle in August 1991, according to a regular schedule, usually from 9:00 or 12:00 to about 4:00 p.m. weekdays. Brown's duties involved feeding Danielle two or three times a day, changing her diaper about four times a day, supervising her play, and otherwise responding to her needs. This routine continued from August 1991 through part of February 1992.
Prior to this time, Brown had been employed as an assistant housekeeper in a nursing home. She quit working there when she had her own child, but planned to return as soon as her own son was old enough to go to day care. She testified that she did not consider baby-sitting her career, and was not tempted to make isher career, but it was something she was willing to do for her friend until she could return to work at the nursing home.
On February 5, 1992, Brown broke Danielle's leg in several places while changing her diaper. The Watkinses sued Brown and CIC, Brown's insurance carrier. CIC brought a cross-claim against Brown, seeking a declaration that her homeowner's policy did not provide coverage for Danielle's injuries. CIC relies upon a business exclusion provision that states that damages arising from activities connected with the insured's business are excluded from the liability coverage otherwise provided in the policy.
After a hearing on the declaratory judgment matter, the court determined that the business exclusion provision of Brown's insurance policy did not apply to her baby-sitting services, finding that Brown "agreed to the baby-sitting arrangement as a favor to her friend and not out of a desire to make a profit. Under these facts, it is difficult to conceive of Mrs. Brown as being in the `business' of baby-sitting." The court also relied on Am. Financial Corp. v. Fireman's Fund Ins. Co. (1968), 15 Ohio St.2d 171, 174, 44 O.O.2d 147, 148, 239 N.E.2d 33, 35, for the proposition that " xclusion * * * must be clear and exact in order to be given effect." Applying this rule to the business exclusion as it appeared in the contract, the court concluded, "given the absence of any specific policy language excluding child care activities * * * this court finds the business exclusion provision of the policy to be inapplicable."
This appeal followed. In the sole assignment of error, CIC contends:
"The trial court erred to the prejudice of the defendant-appellant, the Cincinnati Insurance Company, by holding that the `business' exclusion in the homeowner's policy was overly broad and did not apply to the day care service provided by the defendant-appellee, Thelma Brown."
CIC apparently concedes that Brown has met her burden of demonstrating that the general provisio
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