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Rocky Mountain Casualty Co. v. St. Martin12/26/1990
Is baby-sitting a "business pursuit," excluded from liability coverage under a homeowner's policy exclusion? We hold that it is, when conducted on a regular and continuous basis for compensation. Does the baby-sitter nevertheless have liability coverage, by reason of a "non-business activities" exception to the exclusion, if a child is injured by touching a stove used to heat the sitter's house? We hold that she does not in this case, because the injury resulted from negligent supervision of the child. We affirm a summary judgment declaring that Lonna D. St. Martin had no liability coverage.
Eleven-month-old Kyle Bruin fell against an iron wood-burning stove at St. Martin's home, severely burning his right hand. St. Martin had momentarily turned away from Kyle to watch television. At the time of the accident, St. Martin had been providing child care in her home for Kyle and three other children on a regular basis for about 3 months. She was paid a regular stipend per day per child for keeping the children from 7:30 a.m. to 5 p.m. None of the children was St. Martin's own.
St. Martin's homeowner's insurance policy with Rocky Mountain Casualty Company specifically excluded liability
coverage for personal injury "arising out of business pursuits of any insured." Excepted from that exclusion, however, were "activities which are ordinarily incident to non-business pursuits."
The issues presented are of first impression in Washington. Authority from other jurisdictions is divided, but we believe that our holding accords with the better reasoned cases. Representative of the view we adopt, that baby-sitting is a business pursuit if conducted on a regular and continuous basis for compensation , are Stanley v. American Fire & Cas. Co., 361 So. 2d 1030 (Ala. 1978); Allstate Ins. Co. v. Kelsey, 67 Or. App. 349, 678 P.2d 748 (1984); McCloskey v. Republic Ins. Co., 80 Md. App. 19, 559 A.2d 385, cert. denied, 566 A.2d 101 (1989); Burt v. Aetna Cas. & Sur. Co., 720 F. Supp. 82 (N.D. Tex. 1989); United States Fid. & Guar. Co. v. Heltsley, 733 F. Supp. 1418 (D. Kan. 1990). Some courts have reached the same result by applying a test that asks whether there is "continuity" and "profit motive" in the baby-sitting activity. See,
e.g., Susnik v. Western Indem. Co., 795 P.2d 71 (Kan. Ct. App. 1989); Moncivais v. Farm Bur. Mut. Ins. Co., 430 N.W.2d 438 (Iowa 1988).
Seminal and typical is Stanley v. American Fire & Cas. Co., supra, in which a 1-year-old child fell onto a bed of hot coals in the fireplace while Stanley, the baby-sitter, prepared lunch for herself, her own children, and other children for whom she was caring. Stanley cared for eight different children, no more than five at a time, and received compensation for each. In affirming the trial court's decision that this type of child care was a business pursuit within a policy exclusion similar to the one here, the court first observed that "we are not here dealing with a temporary or casual keeping of children, but rather with a more permanent arrangement for an agreed upon compensation." Stanley, 361 So. 2d at 1032. It went on to deny coverage, stating "Child care for compensation as evidenced in this case was much more than a casual accommodation, and was properly found to be a 'business pursuit'". Stanley, 361 So. 2d at 1033.
Similarly, in McCloskey v. Republic Ins. Co., supra, the court determined that a baby-sitter who offered home child care "was actively engaged in an occupational pursuit requiring the devotion of her energy, time and thought, and for which she received compensation" so that " nquestionably, it was a 'business pursuit' . . .". McCloske
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