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07/19/83 WESTERN FIRE INSURANCE COMPANY v. WILLIAM

July 19, 1983

THE WESTERN FIRE INSURANCE COMPANY, A CORPORATION, APPELLANT,
v.
WILLIAM GOODALL, III, AND THERESA L. GOODALL AND GEORGE D. JOHNSON AND CAROL JOHNSON, RESPONDENTS.



From the Circuit Court of St. Louis County; Civil Appeal; Judge Robert L. Campbell.

Motion for Rehearing Overruled, Transfer Denied September 15, 1983. Application Denied October 18, 1983.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Plaintiff insurance company appeals from a judgment entered on its petition for declaratory judgment to determine coverage under its homeowners policy with respondent Goodall. The action concerns the death of defendants Johnsons' child while under the care of Mrs. Goodall and the applicability of a business pursuits exclusion clause in the Goodalls' policy. We affirm the trial court's holding that the policy supplies coverage.

On May 6, 1980, Mrs. Goodall was baby-sitting for two small children in her home while caring for her own young daughter. Shortly after she had placed one of the children, ten month old Michael Johnson, in a crib for his afternoon nap she heard a noise from the bedroom in which he slept. She returned to the bedroom and found him lying on the floor. He had apparently fallen out of the crib. He later died from head injuries which he sustained from the fall.

Mrs. Goodall's baby-sitting jobs were acquired through advertisements which she had placed in a weekly neighborhood newspaper. The ads read "child care in my home [address and phone number]." She ran the ad twice in September, 1979 and twice in April, 1980. She received one baby-sitting job from the September ads. She babysat for a small child whose mother attended school. From September, 1977 until sometime in April, 1980 this job was on an irregular part-time basis, but in April the mother starting working full-time and Mrs. Goodall began sitting for the child on a regular 40 hour per week schedule. The April ads produced one additional sitting job which began at the end of April. This job was with the Johnsons' child and it lasted only about 10 days, including one full 40 hour week, before the accident on May 6.

Mrs. Goodall's care for the children included playing with them, feeding them, changing diapers, giving them naps and so on. Mrs. Goodall had no special training for the care or instruction of children and her responsibilities did not include educational instruction. In short, Mrs. Goodall did all those thing which she normally did for her own child during the day.

Mrs. Goodall charged $1.00 per hour to baby-sit or $40.00 per week for a 40 hour week. Mrs. Johnson supplied food for Michael who was younger than the other child and Mrs. Goodall's daughter.

Plaintiff brought a petition for a declaratory judgment to establish that it was not liable under its homeowners policy with the Goodalls to defend or pay any claims arising from the injury to Michael Johnson. Plaintiff contends that its liability for the injury is excluded by the following clause in the defendant's policy: "This policy does not apply . . . to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits." Plaintiff argues that the defendant's baby-sitting activities constituted a business pursuit under the policy and that Mrs. Goodall's failure to properly care for Michael Johnson does not come within the exception "activities therein which are ordinarily incident to non-business pursuits."

The defendants contend that Mrs. Goodall's "sporadic" baby-sitting activities did not amount to a business pursuit under the contract and, even assuming they did, that in performing the same activities she normally performed for her daughter Mrs. Goodall was engaged in activities ordinarily incident to a non-business pursuit, within the exception to the business pursuits exclusion. To bolster their position defendants cite the well established rule of insurance contract construction that ambiguities in the contract should be decided in favor of the insured.

The trial court held that Mrs. Goodall's baby-sitting activities were ordinarily incident to a non-business pursuit and that, therefore, the business pursuits exclusion was inapplicable.

On appeal the parties present the same arguments they made at trial.

In Dieckman v. Moran, 414 S.W.2d 320 (Mo. 1967), the Supreme Court held that a business pursuits exclusion clause, essentially identical to the clause at issue here, is not ambiguous. The Court stated that, though the clause is worded poorly, its intent is clear: "business pursuits of the insureds are excluded, except activities therein which are ordinarily incident to non-business pursuits."

While Dieckman holds that the business pursuits exclusion clause in question is not ambiguous and therefore enforceable, it lends no assistance in deciding which activities are business pursuits or which activities, though within a business pursuit, are normally incident to non-business pursuits. See Martinelli v. Security Ins. Co. of New Haven, 490 S.W.2d 427, 430 (Mo.App. 1972). The parties agree and our research shows ...


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