Crane v. State Farm Fire & Cas. Co.

Decision Date27 January 1971
Citation14 Cal.App.3d 727,92 Cal.Rptr. 621
PartiesNorma K. CRANE, Plaintiff and Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Defendant and Respondent. Civ. 26764.
CourtCalifornia Court of Appeals Court of Appeals

Bennet Olan and Harvey A. Schneider, Beverly Hills, for plaintiff and appellant.

Berry, Davis & McInerney, Oakland, for defendant and respondent.

DAVID, * Associate Justice.

Plaintiff appeals from a judgment for declaratory relief following a nonjury trial declaring her claim for $500 medical expenses to be excluded from coverage under a homeowners insurance policy issued by defendant to James A. and Janet Chamberlain.

The Supreme Court has recently described the coverage intended to be provided by the type of policy at issue here 'Generally speaking, the personal liability provisions of a homeowner's policy bind the insurer to pay damages for which the insured shall become liable as a result of accidents in and around his home.' (Herzog v. National American Ins. Co. (1970) 2 Cal.3d 192, 197, 84 Cal.Rptr. 705, 707, 465 P.2d 841, 843.) The entire policy is not before us. It provided, as applicable to this cause:

'Section II of this Policy Does Not Apply:

'(a) to any business pursuits of an Insured, other than activities therein which are ordinarily incident to non-business pursuits; or to the rendering of any professional service or the omission thereof, except with respect to voluntary civilian defense activities; or to any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an Insured.'

This policy insuring Mr. James A. and Mrs. Janet Chamberlain was in force and effect on June 24, 1966. Two to three months prior to that date, Mrs. Janet Chamberlain had orally agreed with appellant Norma K. Crane, a neighborhood friend, to care for Mrs. Crane's two children, including Andrea, aged 2 1/2 years, as appellant was employed.

Under this arrangement, appellant left her children at the Chamberlain residence at approximately 7:40 a. m. each morning and picked them up each evening between 5:10 and 5:40 p. m. This occurred on five days a week during which appellant worked. In return, appellant paid Mrs. Chamberlain $20 the first week, increased thereafter to $25 a week, plus 'a sack of groceries,' valued at about $5. Neither woman ever mentioned how long the arrangement was to last.

On June 24, 1966, two to three months after the beginning of this arrangement, infant Andrea accordingly was in the care of Mrs. Chamberlain at the Chamberlain residence. It was admitted Andrea sustained injuries at that time at the Chamberlain home and that there were resulting medical costs whose reasonable value exceeded $500. No further facts as to the cause of the injuries or the manner in which they were sustained appear in the record.

Appellant sought a declaration that this injury was covered by the insurance policy.

The trial court found that Mrs. Chamberlain's activity in caring for Andrea 'constituted a business pursuit of said insured, within the meaning of the above-quoted exclusion of said Homeowners policy, and was not an activity ordinarily incident to non-business pursuits of said assured.' The court then concluded that appellant's claim was excluded from coverage under respondent's policy.

Appellant argues first, that the 'babysitting' by Mrs. Chamberlain was not a business pursuit. From their agreement we are satisfied that the trial court correctly determined that it was. Upon oral argument, appellant conceded this point.

'Babysitting' is an occupation in which the babysitter has the responsibility of keeping her infant charges entertained and protected from harm and even mischief. (Tropical Coach Lines, Inc. v. King (1962 Fla.Sup.Ct.) 147 So.2d 318, 319.)

The term 'babysitting' perhaps is inaptly used to describe the contract for day care of children involved here. In ordinary parlance, the 'babysitter' is one employed as a matter of convenience by parents to stay with a child or children, so that they may for a few hours seek their pleasure, or tend to affairs external to the home. This differs from day-in, day-out child care for an indefinite period, as here.

'Business' in its broad sense embraces anything about which a person may be busy, and in its usual sense, signifies an undertaking or calling for gain, profit, advantage of livelihood. While 'business pursuit' in some contexts is synonymous with 'business,' it more accurately denotes a continued, extended or prolonged course of business or occupation. 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' under the terms of the policy exclusion. (Mansfield v. Hyde (1952) 112 Cal.App.2d 133, 137-138, 245 P.2d 577; Long v. City of Anaheim (1967) 255 Cal.App.2d 191, 197, 63 Cal.Rptr. 56; cf. Dorrell v. Norida Land & Timber Co. (1933) 53 Idaho 793, 27 P.2d 960, 963, reviewing definitions; Fadden v. Cambridge Mutual Fire Insurance Co. (Sup.Ct.1966) 51 Misc.2d 858, 274 N.Y.S.2d 235, 241; Home Insurance Company v. Aurigemma (Sup.Ct.1965) 45 Misc.2d 875, 257 N.Y.S.2d 980, 985. These New York trial court cases involve the same exclusionary clause here considered.)

It has been held in a variety of contexts that a single day's act, or single transaction does not qualify as a business. We need not explore the ramifications of these definitions, in view of the continuity of the services here contracted for and performed, according to the evidence. The present case does not involve casual babysitting, a temporary arrangement for an hour, a day or an evening, for the convenience of parents. It seems clear that while an individual instance might involve a business arrangement, such would lack the continuity of a 'business pursuit.'

We next consider a number of cases involving an exclusionary clause, the same or similar to the one reviewed here.

In Home Insurance Comapny v. Aurigemma, supra, 45 Misc.2d 875, 257 N.Y.S.2d 980, a guest was electrocuted upon a charged swimming pool ladder. The pool electrical work had been performed for the insured by an electrician friend as a favor, not as a business pursuit. Hence it was held that friendly help was not a business pursuit and the policy exclusion (the same as involved here) was inoperative.

In another case, it appears the insured baled and sold hay for business purposes. While transporting hay on a highway after dark to feed cattle maintained for personal and family needs, a collision occurred and plaintiff sued. The policy exclusion was held inoperative. The use of the hay-wagon was not a business pursuit or if so, it was an activity ordinarily incident to nonbusiness pursuits. (Edwards v. Trahan (La.App.1964) 168 So.2d 365.)

But torts arising in the course of business bring the exclusion into play.

D. and M. were fellow employees, sheetmetal workers, when M. in course of employment activated a power brake on a sheet metal machine and injured D. M. was insured on homeowners policy including personal liability and property damage. It was held that this was a business pursuit, and the exclusion was held applicable, the exception being inapplicable. (Dieckman v. Moran (Sup.Ct.Mo.1967) 414 S.W.2d 320, 322.) The court in that case concluded the exception to the business exclusion was poorly worded, but not ambiguous; and that the rule determining ambiguities against the insurance company does not authorize the distortion or perversion of the language used in an insurance contract, nor does it furnish any warrant for creating an ambiguity where none exists; citing Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 432, 296 P.2d 801, the point being that the company is entitled to the limitations plainly expressed.

The applications made of the exception to the business pursuit exclusion are definitive.

The owner of Sequoyah Marina was in the business of renting boats. A mechanic attempted to start a boat used by the owner solely for nonbusiness purposes, and was injured. The court stated: 'We conclude that the activities of Lowrance in repairing the boat were ordinarily incident to the non-business use of the boat by Freeman, the owner, and were not within the exclusion.' (Security National Insurance Co. v. Sequoyah Marina (C.A. 10th 1957) 246 F.2d 830, 833.)

An insured, engaged in raising cattle, while rounding up cattle on adjacent premises, threw a stick which hit the plaintiff. It was held the exclusionary clause applied. (Burroughs v. Employers Liability Assurance Corp. (La.App.1967) 198 So.2d 202.)

Where an insured plaintiff was sent by his fellow employee, the assured, to open and close chute openings for cotton bins and a corn bin, and the assured pushed a starter button which activated an auger in a chute, whereby plaintiff lost an arm, the exclusion was applied. The momentary forgetfulness in pushing the starter button was not an 'activity ordinarily incident to a nonbusiness pursuit.' (Pitre v. Pennsylvania Millers Mutual Insurance Co. (La.App.1970) 236 So.2d 920.) A similar conclusion was reached, where the injury was caused by operation of a fork lift by a fellow employee. (Berry v. Aetna Casualty & Surety Co. (La.App.1969) 221 So.2d 272, 273.)

These facts appear in Hardware Mutual Casualty Co. v. Mayer (1960) 11 Wis.2d 58, 104 N.W.2d 148, rehearing denied 105 N.W.2d 322:

Mayer, the insured, was engaged in farming and on adjacent acreage maintained a home on lands excluded from farming operations, and leased another parcel to Steward. Defendant Sachse was a man of all work, performing services relative to all parties and lands, and for the Flex Belt Company owned by Mayer. Sachse was injured while working on a woodlot acreage reserved for the owners and guests, and the trial court found...

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