(Article from Insurance Law Alert, December 2021)
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A Florida district court ruled that an insurer was obligated to defend a professional women’s tennis organization in an underlying arbitration alleging injury stemming from drug testing requirements, finding that the organization’s enforcement of drug testing regulations was not a “professional service” under the policy exclusion. Depositors Ins. Co. v. WTA Tour, Inc., 2021 WL 5908833 (M.D. Fla. Dec. 14, 2021).
A tennis player sued the WTA, the governing body for professional women’s tennis, alleging negligence, battery, and intentional infliction of emotional distress, among other claims. The suit claimed that the player suffered from a medical condition that caused her to experience severe pain and swelling from blood draws, and that her requests for medical accommodations with respect to drug testing prior to matches were ignored. The insurer sought a declaration that it had no duty to defend the claims based on a professional services exclusion. The court disagreed and ruled in the policyholder’s favor.
The exclusion applied to any “[m]edical, surgical, psychiatric, chiropractic, chiropody, physiotherapy, osteopathy, acupuncture, dental, x-ray, nursing or any other health service, treatment, advice, or instruction.” The court acknowledged that the drawing of blood is a medical service within the meaning of the exclusion, but held that the WTA’s decision to enforce its regulations mandating drug testing is a business decision rather than a “professional service.” The court stated: “[E]ven if Brengle’s claims do ‘arise out of’ the venipuncture, they also arise in part from business decisions made by the WTA to enforce its policies. Such business decisions fall outside the Exclusion.” The court further reasoned that requiring an athlete to submit to drug testing is not, itself, a professional service because it “does not involve the use of, or failure to use, any professional skill, knowledge, experience or training.”