Words of Policy Control over Secret Intent of Insurer: Policy Must Be Read as a Whole

Words of Policy Control over Secret Intent of Insurer: Policy Must Be Read as a Whole

Cheerleading is, by some measures, the second most dangerous college sport in the country. Cheerleading trails only football in terms of the total dollar value of catastrophic injury insurance claims submitted to the NCAA’s insurers. The injuries result from both competition and practice sessions.

Much of this danger is attributable to the incorporation of acrobatic and gymnastic moves into cheerleading routines. Cheerleaders are charged with being launched high into the air, performing a series of flips and twists, and landing gracefully back into the arms of their teammates, all without pads.Wesley Patterson, a student cheerleader at Prairie View A&M University (Prairie View), was paralyzed while practicing a tumbling maneuver during gymnastics class.

Patterson sued Mutual of Omaha Insurance Company (Mutual), seeking coverage under the insurance policy that Mutual had issued to Prairie View as a member of the NCAA. Mutual’s policy covers student cheerleaders who are injured during cheerleading practice sessions. The district court denied Mutual’s motion for summary judgment and granted Patterson’s motion for summary judgment after concluding that the term “practice session” in Mutual’s policy included the gymnastics class Patterson was attending when he was injured.


As a cheerleader, Patterson was required to attend cheerleading practice from 5:30 p.m. to 8:30 p.m. every Monday through Thursday. Price also taught Gymnastics II, a one-credit physical education class held from 1:00 p.m. to 1:50 p.m. every Monday and Wednesday. Although Patterson was not enrolled in Gymnastics II, he began attending the class in the fall of 2007 to practice tumbling, a form of gymnastics used in cheerleading. On January 23, 2008, Patterson was attempting to perform a round-off back-handspring back tuck as part of a graded skills exam in Gymnastics II when he fell and injured his spinal cord, rendering him an incomplete quadriplegic. In Patterson v. Mutual of Omaha Insurance Co., 12-3838 (8th Cir. 02/28/2014) [enhanced version available to lexis.com subscribers], the Eighth Circuit was called upon to interpret THE policy covering injuries from cheerleading.

Mutual’s policy covers student cheerleaders participating in certain “Covered Event[s].”

Covered Event means, for Student cheerleaders:

a. activities performed as part of the cheer unit for a Qualifying Intercollegiate Sport team competition scheduled by the Insured Person’s Participating School; or b. practice sessions and pep rallies both of which must be authorized by, organized by and directly supervised by a safety-certified official coach or advisor of the Insured Person’s Participating School, other than a member of the cheer unit or other undergraduate Student, and in preparation for a Qualifying Intercollegiate Sport team competition. . . .

For Student cheerleaders, Covered Event does not include any activities not directly associated with the activities of a Qualifying Intercollegiate Sport team, such as camps, clinics, national competitions, fund-raisers, alumni events and other events not conducted by the Insured Person’s Participating School.

Patterson sued Mutual seeking a declaration that the Policy covered his injury.


Courts interpret terms in an insurance policy from the perspective of an ordinary policyholder of average intelligence. When language in an insurance policy is clear and unambiguous, a court must give it its plain and ordinary meaning. The Policy contemplates four basic requirements for coverage relevant to this appeal: (1) the student must be injured during a practice session; (2) the practice session must be authorized, organized, and supervised by the coach; (3) the practice session must take place in preparation for a Qualifying Intercollegiate Sport team competition; and (4) the practice session must be directly related to the activities of a Qualifying Intercollegiate Sport team.

The Eighth Circuit concluded that Gymnastics II can be considered a “practice session” under the Policy. The Policy itself does not define the term “practice session, ” so we must do so ourselves from the perspective of an ordinary policyholder. For student cheerleaders like Patterson, Gymnastics II was a “meeting or period devoted to” the “systematic exercise for proficiency” of gymnastic skills used in cheerleading.

Mutual claimed that the Gymnastics II class was not a class cheerleaders were required to attend although they were required to attend after-school practice. Students had to try out for cheerleading, while Gymnastics II was open to all students according to Mutual and cheerleading practice and Gymnastics II were held at different times and at different places.

Practice sessions need not be homogenous: they may take place at different times and at different places, they may involve different members of a team, they may cover different skills, and they may be optional or mandatory. Moreover, the fact that Gymnastics II is a class does not mean it cannot also be a practice session. On the day Patterson was injured, there were six cheerleaders and six Gymnastics II students in the gym. Gymnastics II and cheerleading practice were taking place simultaneously and that some students (including Patterson) were participating in both a class and a cheerleading practice.

Case law includes examples of similar overlaps between academics and interscholastic athletics. Given the close relationship between modern interscholastic athletics and academics, the court found Mutual’s proffered definition of “practice session, ” which draws a bright line between the two spheres, to be too rigid.

An ordinary policyholder who walked into the gym between 1:00 p.m. and 1:50 p.m. on a Monday or Wednesday would probably believe that he was witnessing a cheerleading practice session. To exclude these activities from coverage simply because the students were earning academic credit would impose a limitation that reflects neither the language of the Policy nor the reality of the class.

Mutual tried to impose additional requirements not stated in the policy like a requirement that Price (the instructor) authorize, supervise, and organize the cheerleading activities during Gymnastics II. Although the class had a syllabus, Price frequently departed from the syllabus and tailored instruction to the abilities and needs of the class, providing considerable one-on-one instruction to each student. Moreover, Price permitted cheerleaders who were not enrolled in Gymnastics II to attend the class. Price thus had authority over who attended the class and who did not. Prairie View may have decided to offer Gymnastics II as a class and to schedule it from 1:00 p.m. to 1:50 p.m, but it was Price who decided to turn the class into a cheerleading practice session by teaching tumbling routines used in cheerleading, allowing non-enrolled cheerleaders to attend, and discussing cheerleading business during class.

There was nothing in the record that allows a conclusion that Patterson intended to use the round-off back-handspring back tuck he was practicing in Gymnastics II at a specific football or basketball game in the future. It is undisputed that Prairie View cheerleaders used tumbling routines during football and basketball games and that Patterson was performing a tumbling maneuver when he injured himself. It is enough to interpret the policy to note that Patterson was practicing tumbling during the basketball season and that Prairie View cheerleaders performed tumbling routines during home basketball games.

As examples of activities not directly associated with sport team competitions, the Policy lists “camps, clinics, national competitions, fund-raisers, alumni events and other events not conducted by the Insured Person’s Participating School.” Patterson’s activities during Gymnastics II do not fall into any of these categories.

The court concluded, therefore, that the relationship between what Patterson was practicing when he was injured and why he was practicing it was sufficiently close to establish that the activities during Gymnastics II were “directly associated” with a Qualifying Intercollegiate Sport team competition and affirmed the trial court decision.


Insurance policies are contracts. Insurers should never attempt to refuse to pay a claim, as did Mutual, for exclusions that were not written in the policy wording. If Mutual was really concerned about the hazard of receiving an injury during a scheduled class, it need only exclude it as it excluded injuries at camps and clinics.

The Eighth Circuit wisely read the policy as a written.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2014, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at Barry Zalma or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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