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Vol. 6, Iss. 7
September 13, 2017

Policyholder’s Achilles Heel: Professional Services Exclusion
And The Foot Massage Gone Awry

The Pennsylvania Superior Court’s decision in Campayno v. Auto Owners Insurance, No. 1210 WDA 2016 (Pa. Super. Ct. Aug. 23, 2017) is a twofer – coverage for a foot massage gone awry and a take-away to boot. I would have included a coverage case about a foot massage gone wrong even if there were no good reason. The fact that there is one is an embarrassment of riches.

At issue in Campayno was the applicability of a “professional services” exclusion in a general liability policy. As a corollary, the case would also be relevant to whether the actions qualify as a “professional service” for purposes of triggering coverage under a professional liability policy.

William Hornick allegedly suffered severe burns after receiving a foot massage, in a “Footsie Bath,” at La Spa Ligonier, a business that offered traditional day spa services, including massages, facials and nail services. Hornick filed suit against La Spa. La Spa’s general liability insurer disclaimed coverage based on a professional services exclusion. La Spa filed an action against the insurer seeking a declaratory judgment concerning the insurer’s duty to defend and indemnify. The trial court ruled in favor of the insurer. [An insured-status issue was also in play, but that’s not addressed here.]

La Spa appealed to the Pennsylvania Superior Court which affirmed. The professional services exclusion at issue provided that no coverage was owed for “bodily Injury” “due to rendering or failure to render any professional service.” The exclusion was followed by a non-exhaustive list of examples of what constitutes a “professional service,” such as legal, accounting, medical and any cosmetic service or treatment.

The fact that the policy’s definition of “professional service” included any cosmetic service or treatment made for easy work for the court: “To meet its burden of proof to establish that the exclusion applied to professional services rendered by La Spa, Insurer provided evidence that La Spa primarily is in the business of offering cosmetological services. . . Cosmetic services are services performed by cosmetologists. Cosmetology is defined by statute to include ‘any or all work done for compensation by any person, which work is generally and usually performed by cosmologists[.]’(sic) In order to provide such services for compensation, La Spa Ligonier’s employees were required to hold a professional license provided by the State Board of Cosmetology.” The trial court concluded that the services provided to Mr. Hornick required special “skills and training” of a licensed cosmetologist and were a professional service. The Pennsylvania appeals court couldn’t disagree.

It also didn’t help La Spa’s cause that Mr. Hornick’s daughter, when she inquired about spa and massage services for her parents, informed the spa about the complications of her father’s diabetic neuropathy. The spa indicated that precautions would be taken and that La Spa staff would “develop a special spa and massage package of services for the [p]laintiffs, including a massage package that would stimulate circulation in [Mr. Hornick’s] feet.”

While the decision is fact driven, it does offer something that has the potential to be relevant to a future dispute. It comes from the spa’s use of a “Footsie Bath” [the manufacturer was named as a defendant] to give the massage. The court held that “[e]ven an injury caused by mechanical equipment used by licensed professionals in the course of rendering a professional service is an injury resulting from the rendering or failure to render a professional service.”

Given that it is not uncommon for those performing professional services to use equipment in the process, the court’s decision on this point is a take-away. So, if I’m using a Coverage Opinions pen while working, and it somehow explodes, any bodily injury would still arise out of a professional service. Good to know.

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