Evanston Insurance Co. is not obligated to provide vicarious liability coverage to a spa owner for a customer’s stroke caused by one of her employees, says a federal appeals court in upholding a lower court ruling.
In June 2012, Kalandra Lewis suffered injuries including a stroke following a massage given to her by a massage therapist at Serenity Spa for Total Health and Relaxation Inc. in Lee County, Florida, according to Wednesday’s ruling by the 11yh U.S. Circuit Court of Appeals in Atlanta in Kalandra Lewis, Christopher Lewis v. Evanston Insurance Co.
At the time Ms. Lewis suffered her injuries, the corporation’s owner, Ms. Denise Vega, held a medical professionals professional liability policy from Deerfield, Illinois-based Evanston, which is a Markel Corp. unit, according to the ruling.
The policy insured Ms. Vega, who was the only named insured under the policy, for any claims arising out of her professional services, but excluded coverage for liability arising out of her role as “proprietor, superintendent, executive officer, director, partner, trustee or employee” of any business enterprise.
The Lewises filed suit in state court against the spa, Ms. Vega and the massage therapist on charges including vicarious liability in December 2012.
In April 2014, Evanston informed Ms. Vega it would not defend or indemnify her because it did not believe the policy provided coverage of the injuries caused by the massage therapist.
Ms. Vega entered into an agreement with the Lewises in March 2015 under which she assigned any causes of action she might have against Evanston to the couple, and consented to the entry of a $500,000 judgment against her.
The Lewises then filed a civil action against Evanston in Florida state court, and the insurer removed the litigation to the U.S. District Court in Fort Myers, Florida. The court ruled the policy did not cover Ms. Vega’s vicarious liability for the massage, and the Lewises appealed.
“We find no reversible error in the District Court’s order,” concluding the policy did not provide coverage, said a unanimous three-judge appeals court panel, in upholding the lower court ruling.
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