Econ. Fire & Cas. Co. v. Bassett - 170 Ill. App. 3d 765, 121 Ill. Dec. 481, 525 N.E.2d 539 (1988)

Rule:

Child care for compensation is not ordinarily incident to the conduct of a household, and contemplates the exercise of due care to protect the child from household activities and conditions. Injuries resulting from failure to properly supervise a child the insured is paid to care for therefore are not covered by the policy.

Facts:

Sherry Bassett operated a licensed day-care facility at her home at Rural Route 1, Sunnybrook Meadows, Carmi, Illinois. At the time of the incident giving rise to this litigation, Bassett had provided babysitting services in her home for approximately nine years. She received compensation for these services. On any given day, she would have up to eight children in her care. Among the children for whom Bassett was being paid to baby-sit was three-year-old Dylan Jones. On October 16, 1981, Dylan was at Bassett's home, along with Mandy Sparrow, Carla and Dusty Pritchard, Devon and Deon Erkman, and Jamie and Kathy Mills. At approximately 4:30 p.m., Patricia Mills drove into Bassett's driveway to pick up Jamie and Kathy, her children. As Mills backed out to leave, her automobile struck and injured Dylan. Dylan's parents brought a personal injury action on his behalf against both Mills and Bassett. Bassett held a homeowner's insurance policy from Economy Fire & Casualty Company, which she had purchased through Connie and Robylee Gott at the Burnett Insurance Agency. Bassett notified Economy of the lawsuit, and it provided her with legal representation under a reservation of rights. At the same time, it filed the action sub judice against Bassett, Mills, and Dylan seeking a declaratory judgment that its policy with Bassett did not cover Dylan's accident. The basis for Economy's claim was an exclusion in the policy which provided: “Medical Payments to Others do not apply to bodily injury or property damage: x x x  arising out of business pursuits of any Insured x x x. x x x This exclusion does not apply to: (1) activities which are ordinarily incident to non-business pursuits x x x." Dylan, through his guardian ad litem, Doug Dorris, and Sherry Bassett each then brought a third-party action against Connie Gott, Robylee Gott, and Bruce Burnett, d/b/a Burnett Insurance Agency, alleging that the Gotts and Burnett had failed to exercise reasonable skill, care, and diligence in procuring insurance for Bassett which would cover her residence and the babysitting business she conducted there and, in the alternative, that they had breached an oral contract to obtain such insurance for her. Following a bench trial, judgment was entered in favor of Economy on its complaint against Bassett, Mills, and Dylan, and in favor of the Gotts and Burnett on the third-party claims of Bassett and Dylan.

Issue:

Did Dylan’s injuries arise from an activity not ordinarily incident to non-business pursuits?

Answer:

No.

Conclusion:

Dylan was injured by a parent who had come to pick up other children for whom the insured was being paid to baby-sit. The accident happened as that parent was backing out of the insured's driveway. The insured did, of course, allow even nonbusiness visitors to use her driveway. At the same time, however, the use of the driveway by parents to drop off or pick up their children is an activity which we believe is ordinarily associated with a baby-sitter's function. Here, the parent had come to the insured's home for no reason other than to pick up her children, and Dylan apparently would not have been injured had the insured properly supervised him. Thus, the circuit court agreed that Dylan's injuries were not covered by the policy.