The February issue of CLM Magazine included the article Tort for Tattoo. S. Karen Bamberger of Betts, Patterson & Mines, P.S. and Roger DeKraker of Nationwide address risks faced by tattoo artists and manufactures of tattoo-related products. The authors warn that lawsuits can follow if there is contaminated ink or improper procedures used when applying tattoos.

That got me wondering. With all these risks out there, are there any decisions addressing coverage for a claim involving a tattoo gone wrong? Surely the CGL “your work” exclusion would preclude coverage for a tattoo artist for a claim that his or her work was artistically unsatisfactory (if that were even an “occurrence” in the first instance). And, of course, there’s the Roofing Exclusion – “No coverage is owed if you get sued for applying a tattoo to someone who had been instructed – ‘you are not allowed to get a tattoo so long as you’re living under my roof.’”

I did not locate any case law addressing coverage for a tattoo mishap. However, Burns v. Scottsdale, 2010 U.S. Dist. LEXIS 74907 (W.D. Wash. July 23, 2010) is a close cousin. Lacey Filosa had her tongue pierced by an employee of Painless Steel. Two weeks later she was no doubt regretting the decision as she was suffering from a “life threatening infection of ‘flesh eating’ bacteria.” Lacey’s doctor “opined that the bacteria in her own saliva entered her body through the hole in her tongue, causing a serious infection. Lacey recovered, but not without significant scarring.

Lacey filed suit against Painless Steel. She reached a settlement with its owners for $3 million. The court held a reasonableness hearing and found that the settlement was reasonable. Painless Steel assigned to Lacey its rights under its general liability policy issued by Scottsdale. Lacey sued Scottsdale. The court concluded that no coverage was owed.

Putting aside a lengthy Who is an Insured issue, the court held that coverage was barred by the policy’s Professional Services Exclusion: “[T]the professional services exclusion applies. That exclusion excludes ‘any and all professional exposures.’ The policy does not define ‘professional service’ or ‘professional exposure.’ In the absence of such a definition, plaintiff argues that a dictionary definition should prevail, and cites Webster’s Collegiate Dictionary (10th ed. 1995), which defines ‘professional’ as ‘of, relating to, or characteristic of a profession.’ In turn, it defines ‘profession’ as ‘a. a calling requiring specialized knowledge and often long and intensive academic preparation; b. a principal calling, vocation, or employment; c. the whole body of persons engaged in a calling.’ Despite plaintiff’s claim to the contrary, that definition is broad enough to include tattooing services, which is a vocation and also a calling that requires specialized knowledge. The employee who pierced Filosa’s tongue had undergone a one-year apprenticeship. The organization that provided the training is called the ‘Alliance of Professional Tattoo Artists,’ which suggests that tattoo artists consider themselves professionals. Furthermore, the term ‘professional’ ‘generally signifies an activity done for remuneration as distinguished from a mere pastime.’”

So now you know.