When it comes to Exclusions in Insurance Policies, Grammar will Make it Tense


Insurance Coverage Language

By: Jessica Cauley and Marc Shrake

In September 2022, the United States Court of Appeals for the Eleventh Circuit affirmed a seemingly unassuming district court decision finding coverage for a claim following a violent act at a hospital in Miami-Dade County, Florida.

An employee of Westchester General Hospital (Hospital) allegedly sexually assaulted a patient, Jane Doe, and she sued the Hospital on a negligence theory. Evanston Insurance Company (Evanston) denied General Liability (“GL”) coverage for the Hospital, based on two exclusions. The Hospital sought declaratory relief, and the district court entered summary judgment in favor of the Hospital. Evanston appealed.

Evanston said that Professional Services Exclusion and the Bodily Injury Exclusion each, separately and independently, bars coverage. Each exclusion refers to “services of a professional nature.” The former bars coverage for claims in any way involving an act or omission in the performance of “services of a professional nature.” The latter bars coverage for claims arising out of bodily injury sustained by any patient “receiving services of a professional nature.”

Professional Services Exclusion

The Eleventh Circuit applied the phrase “services of a professional nature” to have a greater scope of meaning than ten categories of “Professional Services” identified in the policy. But the court concluded that the specific allegations of negligence in the case were not barred from coverage because they did not “in any way” involve acts or services of professional nature.

The Florida Supreme Court has not applied this language, but certain appellate courts have declined to deem any act occurring in a professional office or setting, without more, as a “professional service.” Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So. 2d 636, 638 (3rd Fla. DCA 1994). Those courts seem to look for a causal connection between the act itself and the nature of the professional relationship. Id. In the case of the Hospital and Evanston, the record did not reflect such a connection, and no party asserted that the Hospital employee was engaging in any professional services during the alleged attack. The court also did not find the alleged negligence in the Hospital’s hiring, training and supervising employees to equate to professional service. The court therefore declined to rely on the Professional Services Exclusion to reverse the district court’s award of coverage.

Bodily Injury Exclusion

The Eleventh Circuit also declined to apply the Bodily Injury Exclusion to reverse the district court and deny coverage. This exclusion bars coverage for bodily injury sustained by any patient “receiving services of a professional nature.”

Here the court provided a new application of the exclusion’s language, sure to be appreciated by grammar enthusiasts. Evanston pointed to a “relative clause” in the exclusion. In essence, such a clause (who, which, that, where) works with an adjective or adverb clause to describe a noun. For example, the phrase “the man” does not identify anyone in particular. The phrase “the man who is standing at the stop sign” further modifies the noun through the relative clause beginning with the word “who.” Evanston argued that “who” is naturally in the exclusion, and therefore coverage is barred for bodily injury suffered by a patient “[who is] receiving services of a professional nature.”

The court, however, countered that the presence of a present participle (“-ing”) to describe the nature of a patient’s bodily injury calls for the insertion of the word “while,” converting the reading to any patient “[while] receiving services of a professional nature,” signaling a present and continuing action. In the court’s reading, patients who sustain a bodily injury would need to be simultaneously receiving services of a professional nature. Because the plaintiff was not receiving services when allegedly attacked, the court concluded that the Bodily Injury Exclusion does not bar coverage.

The court entertained two interpretations, inserting words not present for the purpose of grammatical construction, and expressly deemed the clause ambiguous. Accordingly, the court did not apply the exclusion to bar coverage.

For further assistance or inquiries please contact Jessica Cauley at or FMG’s Insurance Coverage Team for any assistance in understanding and defending coverage issues.