Someone posed an insurance coverage issue on a LinkedIn thread about liability if a vehicle is hit by an errant baseball, distinguishing between someone who perhaps assumed the risk by parking next to a baseball field vs. someone who was just driving by on a public street. A poster made the mistake of tagging me on the thread and suggesting I comment about the insurance coverage issues.
A similar exposure exists for golf and it just happens that I wrote an article eight years ago about this. The following is the article, including case law citations and links to additional information. As a caveat, I have not updated the article since I originally wrote it nor have I shepardized the court decisions to see if they were overturned on appeal. Another notable thing about the article is that I missed something and was corrected by a reader…keep reading to find out what coverage I had overlooked.
On another note, this will be my only blog post this week. I actually left last weekend for a week-long guitar workshop with a good friend from Florida. So, as you read the article below, we will be playing some blues and classic rock, desperately trying not to embarrass ourselves. Hope you enjoy the article and I’ll see you next week with some blog posts I think you’ll find very interesting.
Golf Course Liability
The following question was posted on an online insurance message board:
“A golfer shanked a tee shot into a house located alongside the fairway (nice, upscale part of our little town, here). The golfer is sorry, goes to his insurance company, and turns in a liability claim. The insurer denies the claim, saying it was an ‘accident’ and they don’t pay for accidents like that. Coincidentally, the house the golfer hit was also insured by the same company. Do you think this claim is covered by the HO policy?”
There appear to be two possible reasons for this denial. One is that the insurer just wants to save $250 (or whatever the deductible is) by paying the claim under Section I of the homeowner’s policy. The second reason (and hopefully the more likely of the two) is that the insurer feels that golfer isn’t legally responsible for the damage. He may feel a moral obligation to pay for the damage, but that doesn’t mean that he is obligated under the law to do so.
Here’s what the policy in question says:
COVERAGE E – Personal Liability
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
- Pay up to our limit of liability for the damages for which the “insured” is legally liable. Damages include prejudgment interest awarded against the “insured”; and
- Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the “occurrence” equals our limit of liability.
Clearly, a claim was made for damage to property. So, was this an “occurrence”? The policy defines that term to be:
“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage.”
Well, the insurer said it was an “accident”…which perfectly meets the definition of “occurrence.” So, that only leaves the issue of whether or not the golfer was “legally liable” for the damages.
There are several other articles on the VU dealing with an insurer’s refusal to pay a claim simply on the basis that they feel their insured has no liability. Too often, that premise is abused, but in this case it appears that the insurer may be on sound legal ground depending on the facts and circumstances. Clearly, if a suit is filed, the insurer MUST defend the claim.
So, let’s first take a look at some of the legal issues involved when a golfer damages property by way of an errant golf shot. While we’re at it, we’ll also provide some citations for the more common incidence of bodily injury claims by others on and off the course, along with the possible legal liability of the golf course and others.
There is a fairly significant body of case law dealing with the liability of golfers for errant shots. In general, the fact that a golfer struck a golf ball and the result was bodily injury or property damage does not constitute proof of liability or negligence. The injured party must prove that the golfer failed to exercise ordinary care by, where possible, giving adequate and timely warning of a miss-hit golf ball.
Rather than rehash numerous court cases and legal dissertations on these issues, below is a listing of such for those that want to dig a little deeper:
- “Injury on the Golf Course: Regardless of Your Handicap, Escaping Liability Is Par for the Course” by Louis J. DeVoto
- “Fore! Who is Liable on a Golf Course” by Douglas M. Lieverman
- Schick v. Ferolito, 2000 W.L. 92217 (J.J. Super. A.D. 2000)
- Dilger v. Moyles, 54 Cal. App. 4th 1452 (1997)
- Jackson v. Livingston Country Club, Inc., 55A.D.2d 1045, 391 N.Y.S.2d 234 (1977)
- Jenks v. McGranaghan, 30 N.Y.2d 475, 479, 334 N.Y.S.2d 641, 643 (1972)
- Thompson v. McNeill, 559 N.E.2d 705 (Ohio Sup. Ct. 1990)
- Rinaldo v. McGovern, 78 N.Y.2d 729, 587 N.E.2d 264, 579 N.Y.S.2d 626 (1991)
- Zurla v. Hydel, 289 Ill. App. 3d 215 (1997)
- Gyuriak v. Millice, 775 N.E.2d 391 (Ct. App., Ind., 2002)
Specifically, getting back to the original question about damage to neighboring property, most claims arise out of allegations of nuisance or trespass. Most of these types of claims are more likely to be successful against the golf course rather than the golfer. Even so, if the homeowner built or purchased a home, knowing the hazards of living adjacent to a golf course, a defense of assumption of risk or constructive notice of hazard is often successful as long as the course had not been modified and barring allegations of improper design that are upheld.
Here is some information that discusses these issues in more depth:
- Hellman v. La Cumbre Golf Club, 6 Cal. App. 4th 1224 (1992)
- Bechhold v. Mariner Properties, Inc., 576 So. 2d 921 (Fla. App. 1991)
- Nussbaum v. Lacopo, 27 N.Y.2d 311, 317 N.Y.S.2d 347, 265 N.E.2d 762 (1970)
- MacDonald Properties v. Bel-Air Country Club, 72 Cal. App. 3d 693 (1977)
- Patton v. Westwood Country Club Co., 18 Ohio App. 2d 137, 247 N.E.2d 761 (1970)
- Sans v. Ramsey Golf and Country Club, 29 N.J. 438, 149 A.2d 599 (1959)
What about the voluntary property damage coverage of $1,000? I would think it would be paid there, similar to a bunch of kids playing ball and someone hits it through a window. HO 00 03 Section II, Additional Coverages, Damage to Property of Others says, “We will pay, at replacement cost, up to $1,000 per ‘occurrence’ for ‘property damage’ to property of others caused by an ‘insured’.” Thanks – Jack Baker, CIC, CPCU, CLU, CRM, United Agencies, LLC, Kansas City, MO
Jack sent this in an email to me in response to a condensed version of this article that ran in our Insurance News & Views email newsletter. My response to Jack was a photo of a guy with an egg on his face. He’s exactly right…this “no fault” HO coverage should respond to such claims as long as the damage was “caused by” an insured and none of the exclusions that apply to this Additional Coverage are triggered. Mea culpa!
Copyright 2010 by Independent Insurance Agents of America. All rights reserved.
Reprinted with permission.
Photo by Marufish