"Occasional" Within Homeowner's Policy Unambiguous
In State Farm Fire & Cas. Co. v. Bauman, -- S.E.2d --, 2012 WL 104514 (2012), the plaintiff's daughter was injured while in the care of the insured. The insured provided after-school childcare services for the daughter most school days. Id. at *1. The insured did not provide childcare for the daughter during vacations, school holidays, or when the daughter was sick. Id.
The insured's homeowner's policy excluded liability and medical payments coverage for claims brought against the insured by "any person who is in the care of any insured because of child care services provided by or at the direction of any insured," and "any person who makes a claim because of bodily injury to any person who is in the care of any insured because of child care services provided by or at the direction of any insured." Id. at *2. By its express terms, the exclusion for child care services did not apply "to the occasional child care services provided by any insured." Id.
The plaintiff obtained a judgment against the insured and sued the insurer directly. Id. at *1. The trial court denied the insurer's motion for summary judgment, finding that the term "occasional" was ambiguous, creating a jury question as to whether the insured provided "occasional" child care services. Id. at *2. The insurer appealed and the Georgia Court of Appeals reversed, finding that the policy excluded coverage for the claims against the insured. Id. The court noted that
"a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one so that it involves a choice between two or more constructions of the contract." Id.
The court concluded that while the term "occasional" was not defined in the policy, under its generally accepted definition, the term means "occurring from time to time; not habitual; infrequent." Id. Because the evidence clearly showed that the insured was not providing "infrequent" childcare for the plaintiff's daughter but was, in fact, providing childcare services "frequently and habitually on a weekly basis," the child care exclusion applied to bar coverage. Id.
Under the facts of this case, it is clear that the childcare provided by the insured clearly did not occur only "occasionally." That is not to say, however, that every court will be able to determine, as a matter of law, that some conduct was "occasional" or was not "occasional." The holding of Bauman merely confirms that the term "occasional" is not ambiguous and will be interpreted pursuant to its generally accepted meaning.