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A Tokio Marine Group unit insurer is not obligated to defend or indemnify a dance and performance company for an accident involving a trampoline under a policy exclusion, a federal district court said Wednesday.
Shana Guins was seriously injured in 2018 while participating in acrobatics class at Streb Inc. in Brooklyn, according to the ruling by the U.S. District Court in New York in Philadelphia Indemnity Insurance Co. v. Streb Inc.
She was attempting a “dive roll” or a “front roll” from a “mini-trampoline” when she tumbled forward and landed on her neck and back, causing severe injuries. She filed suit against Streb in state court, where litigation is ongoing, according to the opinion.
Streb sought coverage from its insurer, Bala Cynwyd, Pennsylvania-based Philadelphia Indemnity, from which it had purchased a commercial general liability policy and a follow-form umbrella policy, the ruling said.
The CGL policy had a $1 million per occurrence liability limit, while the umbrella policy was subject to a $4 million per occurrence limit in excess of the CGL policy.
The insurer denied coverage and filed suit in the district court, seeking a declaration it was not obligated to defend or indemnify Streb.
Philadelphia Indemnity denied coverage based on a policy provision that excluded coverage for “Any claims arising out of the use of any aerial equipment including, but not limited to the use of a trapeze or trampoline,” the ruling said.
Streb argued the exclusion did not apply because the term “aerial equipment” modifies “trampoline” and “a mini-tramp is not considered aerial equipment in the gymnastics field.”
The court disagreed. “With its interpretative gymnastics, Defendant tries to manufacture a carve-out for mini-tramps, which Defendant argues are not ‘aerial equipment’ even if they are ‘trampolines,’” the ruling said.
“To accept Defendant’s contorted reading throws out the plain language of the contract. The Exclusion is not ambiguous, and Defendant fails to suggest otherwise,” it said, in ruling in the insurer’s favor.
Insurer attorney Adam R. Durst, an associate with Goldberg Segalla in Buffalo, New York, said in a statement, “The Court's analysis demonstrates a clear understanding of the arguments by both parties.” He said, “The court rejected Streb's attempt to obfuscate the obvious meaning of the word ‘trampoline’ as used in the subject policy, and came to the correct conclusion.” Streb’s attorney had no comment.
A U.S. unit of Tokio Marine Group of Cos. filed a motion to dismiss a Las Vegas restaurant chain’s coronavirus-related business interruption suit on Tuesday.