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The Iowa Supreme Court on Friday ruled that an Axa XL unit may have to defend and indemnify an amusement park employee who was allegedly responsible for a fellow worker’s death.
Stephen Booher was serving as a loading assistant on the Raging River ride at the Adventureland Amusement Park in Altoona, Iowa, in June 2016 when he and another co-worker were jerked off their feet and fell onto the moving belt that created the ride action, according to the Iowa Supreme Court ruling in T.H.E. Insurance Co. v. Stuart R. Glen et al., which overturned a lower court ruling.
Mr. Booher was drawn into the vortex between one of the rafts and a concrete sidewall. He suffered repeated head injuries until the ride operator, Mr. Glen, finally stopped the ride. Mr. Booher died of his injuries four days later, according to the ruling.
Plaintiffs in the case, which included Mr. Booher’s widow, claimed Mr. Glen’s gross negligence led to the accident. The lawsuit’s allegations included that he had failed to stop the ride in time.
A lower state court held the accident was not covered under the commercial general liability policy issued by Treasure Island, Florida-based T.H.E., a unit of Axa XL, a commercial insurance arm of Axa S.A.
It held that an “accident” is an unexpected and unintended occurrence, but the injuries that occurred after Mr. Glen realized Mr. Booher had fallen in were not unexpected nor unintended but were the natural and expected result of Mr. Glen’s conscious action in not stopping the ride.
That ruling was overturned by the Supreme Court with all but one justice, who did not take part, concurring. “The question here is whether an act of gross negligence could potentially be within the scope of ‘accident’ as that term is used in the CGL policy,” said the ruling. “Or, put differently, does the requirement in Section I (of the policy) that the injury out of an ‘accident’ foreclose the possibility of coverage for any claim that arises to ‘gross negligence’ as the term is used” in Iowa law.
“At this stage in the proceeding, based on the broad nature of the pleadings, we cannot say there is no possibility that Booher may not be able to convince a factfinder that he has a claim that amounts to gross negligence but is within the scope of the coverage of the CGL policy,” it said.
Mr. Booher’s attorney, Fred L. Dorr, president and managing shareholder of West Des Moines-based Wasker, Dorr, Wimmer & Marcouiller P.C., said in a statement the ruling establishes that the insurer has an obligation to defend and potentially pay damages if a jury finds Mr. Glen was negligent. The insurer’s attorney did not respond to a request for comment.
A federal appeals court says a lower court should not have dismissed a wrongful death case filed against a General Electric Co. subsidiary that was filed by the widow of a worker crushed in a forklift accident, in a divided ruling.