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Vol. 6, Iss. 7
September 13, 2017


Encore: Randy Spencer’s Open Mic
The Gym, George Jetson and Insurance Coverage



It’s that time of the year – the dreaded New Year’s Resolution. And when it comes to these pledges to fix all of our flaws, surveys show that none is more popular than to resolve to read more insurance coverage cases. OK, that’s probably (definitely) not true. Of course, we all know what the real number one New Year’s Resolution is – loss weight. This means that many of us will be trudging to the gym in January. Indeed, last week my gym was much more crowded than usual. I saw lots of unfamiliar folks bouncing up and down on elliptical machines. I have a love-hate relationship with the gym. I hate going and I love leaving.

A wonderfully entertaining coverage decision came down in late summer. It had all the odd-ball facts that make for a great Open Mic column. But since it involved a gym injury, I made the decision to put it on the shelf until the season of sit-ups and bicep curls. That day is now upon us.

Mt. Fitness v. Capitol Reef Property & Casualty Company, Utah District Court, 2nd Judicial District, No. 14-0136 involves coverage for a unique situation -- to say the least. The coverage case came about when Roger Jenkins was running on a treadmill at Mt. Fitness, a gym located in Ogden, Utah. The machine allegedly sped-up on its own. With no warning of this significant change in the belt speed, Jenkins, not surprisingly, was throw quickly off the back of the machine. He suffered a broken ankle, torn ACL and various other bumps and bruises.

At the time of the incident, Bill Miller, another Mt. Fitness member, was running on an adjacent treadmill. Miller immediately jumped off of his treadmill to assist the injured Jenkins. While doing so, Miller commented that Jenkins’s mishap resembled the famous scene in the opening of the Jetsons television show where George Jetson is walking his dog, Astro, on a treadmill. Astro sees a cat and gives chase. George, still holding onto Astro’s leash, goes flying ‘round and ‘round the treadmill. The scene ends with Jetson pleading for his wife: “Help, Help, Jane, Stop this crazy thing!”

Jenkins filed suit against Mt. Fitness and the manufacturer of the treadmill in Utah state court: Roger Jenkins v. Mt. Fitness, Utah District Court, 2nd Judicial District, No. 15-2436. Jenkins sought damages from Mt. Fitness for bodily injury and emotional injury. Jenkins alleged that Miller’s statement -- made while Jenkins was on the floor, withering in pain -- comparing Jenkins to George Jetson, in what Jenkins described as “the classic Jetson’s treadmill scene,” was defamatory and caused emotional injury and damage to Jenkins’s reputation.

Mt. Fitness sought coverage for the suit from its general liability insurer Capitol Reef Property & Casualty. Capitol Reef P&C undertook Mt. Fitness’s defense and acknowledged a duty to indemnify for any damages for “bodily injury,” but disclaimed coverage for any damages awarded for defamation. Capitol Reef maintained that no coverage was owed for defamation because the complaint in the Jenkins action did not allege “personal and advertising injury,” even on the basis of “[o]ral or written publication, in any manner, of material that slanders or libels a person or organization….” Specifically, the insurer’s argument was that the “publication” requirement was not satisfied because the allegedly defamatory statement – comparing Jenkins to George Jetson – was not made by a Mt. Fitness employee. Rather, it was made by another Mt. Fitness member.

The Jenkins action was settled with Mt. Fitness for $95,000. The parties agreed that $45,000 was for the bodily injury aspect of the claim. That amount was paid by Capitol Reef P&C. The remaining $50,000, for the defamation claim, was paid by Mt. Fitness itself. Mt. Fitness then filed a coverage action against Capitol Reef seeking to recover the $50,000 that it paid.

The court held that Capitol Reef P&C was obligated to provide coverage to Mt. Fitness for the $50,000 that it paid to settle the defamation claim. The court’s conclusion was that it did not matter that the allegedly defamatory statement was not made by a Mt. Fitness employee. As the court saw it, the phrase “in any manner,” modifying the term “publication,” meant that it made no difference who did the oral or written publishing of material that slandered a person.

You see. I wasn’t kidding. Mt. Fitness v. Capitol Reef Property & Casualty Company is a fun one.

Now I want to see a coverage case involving injuries caused when a waitress, at a drive-in restaurant, hands a customer a plate of huge brontosaurus ribs, causing the car to tip over.

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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