Depositors Ins. Co. v. WTA Tour, Inc.

• Decision Date: 14 December 2021
• Docket Number: Case No. 8:21-cv-1069-VMC-JSS
• Parties: DEPOSITORS INSURANCE COMPANY and Allied Property & Casualty Insurance Company, Plaintiffs, v. WTA TOUR, INC., and Madison Brengle, Defendants.
• Court: U.S. District Court — Middle District of Florida

576 F.Supp.3d 1066

DEPOSITORS INSURANCE COMPANY and Allied Property & Casualty Insurance Company, Plaintiffs,

v.WTA TOUR, INC., and Madison Brengle, Defendants.

Case No. 8:21-cv-1069-VMC-JSS

United States District Court, M.D. Florida, Tampa Division.

Signed December 14, 2021

Edward T. Sylvester, Lewis & Brisbois, Fort Lauderdale, FL, Logan Galbraith Haine-Roberts, Ronald L. Kammer, Hinshaw & Culbertson, LLP, Coral Gables, FL, for Plaintiffs.

John Edward Failla, Proskauer Rose LLP, New York, NY, Matthew Triggs, Jared M. DuBosar, Proskauer Rose, LLP, Boca Raton, FL, for Defendant WTA Tour, Inc.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

This matter is before the Court on consideration of the parties’ cross motions for judgment on the pleadings, filed on September 8, 2021. (Doc. ## 37, 38). Both sides have filed responses and replies. (Doc. ## 41, 42, 49, 50). For the reasons explained below, Plaintiffs’ Motion for Judgment on the Pleadings is denied and Defendant's Motion for Judgment on the Pleadings is granted.

I. Background

A. The Underlying Arbitration

Madison Brengle¹ is a professional female tennis player who has participated in the WTA Tour since 2007. (Doc. # 1-4 at ¶¶ 1, 2, 33). The WTA is the governing body for professional women's tennis and the entity that "sanctions national and international professional tournaments." (Id. at ¶¶ 21, 34). Depositors Insurance Company ("Depositors") issued a Premier Businessowners Policy to WTA Tour, Inc. (the "Primary Policy") and Allied Property & Casualty Insurance Company ("Allied") issued a Commercial Umbrella Liability Insurance Policy to WTA Tour, Inc. (the "Umbrella Policy"), both with effective dates of January 1, 2016 to January 1, 2017. (Doc. # 1 at ¶¶ 13, 14).

In April 2018, Brengle filed a lawsuit in Florida state court against WTA, ITF Limited a/k/a International Tennis Federation ("ITF"), International Doping Tests & Management AB ("IDTM"), Stuart Miller (an ITF employee), and John Snowball (an IDTM employee). (Id. at ¶ 15). The lawsuit was later removed to federal court, and WTA filed a motion to compel arbitration. (Id. at ¶¶ 16-17). In June 2018, the district court granted Brengle's motion to sever her claims against WTA from her other claims and further granted WTA's motion to compel arbitration as between Brengle and WTA. (Id. at ¶¶ 18-19).

On July 24, 2018, Brengle filed an Arbitration Demand against WTA with the American Arbitration Association (the "Demand"). (Id. at ¶ 20; Doc. # 1-4). According to the Demand, Brengle suffers from a rare medical conditional known as Complex Regional Pain Syndrome

("CRPS") Type I which is induced by venipuncture (the process of obtaining access to a person's blood through the veins). (Doc. # 1-4 at ¶ 3). When Brengle is subjected to venipuncture, it causes extreme pain, swelling, numbness and bruising, and Brengle also suffers from severe anxiety before blood draws due to these physical effects. (Id. at ¶ 4).

As the Demand explains, IDTM "is responsible on behalf of ITF for collecting blood and other samples from athletes" and "ITF contracts with IDTM as part of the management of ITF's anti-doping responsibilities." (Id. at ¶ 23). WTA has a Rulebook that mandates athletes’ participation in ITF's Anti-Doping Program. (Id. at ¶¶ 21-22).

Specifically, the WTA Rulebook provides that:

The ITF may conduct anti-doping tests at WTA-sanctioned events under the ITF Anti-Doping Program.... The WTA will honor and enforce any penalties or sanctions against players resulting from the Anti-Doping Program. The Anti-Doping Program shall apply to and be binding upon all players and shall govern participation in ... all WTA-sanctioned events. Players shall submit to the jurisdiction and authority of the ITF to manage, administer, and enforce the Anti-Doping Program.

(Id. at ¶ 36).

Within the Demand, Brengle alleges that, prior to the 2016 Australian Open, she wrote to the ITF Anti-Doping Administrators about the painful effects she suffered after blood testing performed in 2009 and asked for an accommodation, which the ITF denied. (Id. at ¶¶ 53-55). Brengle was forced to undergo an attempted blood draw prior to the 2016 Australian Open, which left her arm bruised

and painful and rendered her unable to practice. (Id. at ¶¶ 56-62). Brengle underwent venipuncture after she lost a match at the 2016 Wimbledon, resulting in extreme physical pain and an impairment of her ability to practice. (Id. at ¶¶ 64-80). Prior to the 2016 U.S. Open, Brengle requested that her venipuncture testing be moved to a date far in advance of the tournament, but ITF refused. (Id. at ¶¶ 83-87). Brengle had blood drawn from her arm less than 48 hours before she was scheduled to compete in her main draw singles match. (Id. at ¶ 90). She again experienced pain, bruising, loss of strength, and loss of mobility in her arm due to the venipuncture, and she was forced to withdraw from the match. (Id. at ¶ 92).

According to the Demand:

WTA over a significant period of time forced Brengle ... to undergo venipuncture blood testing despite WTA knowing about, and witnessing the consequences of, the effects of the procedure on Brengle. While WTA mandates that each of its members complies with [ITF's] Anti-Doping Program and accepts the authority of ITF to manage, administer, and enforce the Anti-Doping Program, WTA also promises the procedures used will have no detrimental effect on members, either immediate or long term.

...

By forcing Brengle to undergo venipuncture blood testing and refusing to make reasonable accommodations, WTA caused Brengle to miss tournaments and to suffer ... debilitating physical injuries and emotional trauma, violating both WTA's obligation to assure that Brengle would suffer no detrimental effects as a result of the administration of the Anti-Doping Program and WTA's duty of good faith and fair dealing owed to Brengle.

...

Had [WTA] lived up to its promise to assure that the tests would cause no damage or harm to players, had [WTA] listened to and taken seriously Brengle's substantive and emotional pleas, and had [WTA] consulted with qualified medical experts about the consequences to Brengle of the venipuncture testing, rather than dismissing her contentions as illegitimate, Brengle would not have suffered, and would not now be suffering, the injuries alleged herein.

(Id. at ¶¶ 5-6, 18).

Based on these allegations, Brengle brings claims against WTA for battery, intentional infliction of emotional distress, negligence, breach of contract, and breach of the implied covenant of good faith and fair dealing. (Id. at ¶¶ 144-169).

On May 4, 2021, Depositors and Allied filed a complaint for declaratory judgment in the instant action, seeking a declaratory judgment that, pursuant to the applicable insurance policies, neither Depositors nor Allied has a duty to defend WTA against the Demand and has no duty to pay for the attorneys’ fees and costs expended in WTA's defense of the Demand. (Doc. # 1). WTA filed an answer and a counterclaim against Depositors for breach of contract, alleging that, by failing to defend WTA in the underlying arbitration, Depositors has breached its insurance contract with WTA. (Doc. # 9). Depositors filed an answer to the counterclaim. (Doc. # 23).

Depositors and Allied moved for judgment on the pleadings, and WTA contemporaneously moved for judgment on the pleadings against Depositors with respect to Count I of the Complaint, which pertains to the Primary Policy.² (Doc. ## 37, 38). The cross motions have been fully briefed (Doc. # 41, 42, 49, 50), and are ripe for review.

B. The Insurance Policy Provisions

1. The Depositors Primary Policy

The Primary Policy provides in relevant part:

I. COVERAGES

A. COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. INSURING AGREEMENT

a. We will pay those sums up to the applicable Limit of Insurance that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages for which there is coverage under this policy.

HOWEVER, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.

...

b. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and

(2) The "bodily injury" or "property damage" occurs during the policy period; and

(3) Prior to the policy period, [the insured and/or any employee of the insured did not have knowledge that the "bodily injury" or "property damage" had occurred].

(Doc. # 1-2 at 64 (PB 00 06 11 14, at 2)).

Crucially, the Primary Policy also includes a section on what is excluded from coverage under the policy:

2. EXCLUSIONS

This insurance, including any duty we have to defend "suits," does not apply to: ...

v. Professional Services

"Bodily injury" or "property damage" that arises out of or is a result of the rendering of, or failure to render, any professional service, treatment, advice or instruction. This exclusion includes, but is not limited to, any:...

(4) Medical, surgical, psychiatric, chiropractic, chiropody, physiotherapy

, osteopathy, acupuncture, dental, x-ray, nursing or any other health service, treatment, advice, or instruction[.]

...

This exclusion applies even if the claims allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by the insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the rendering or failure to render of any professional service.

(Doc. # 1-2 at 65, 70, 71 (PB 00 06 11 14, at 3, 8, 9)) (hereafter, the "Professional Services Exclusion"). The Primary Policy contains these relevant definitions:

• "Bodily injury" means bodily injury, sickness or

...