Two middle school teachers who fell off donkeys while preparing to play basketball are seeking compensation from the company that insured Buckeye Donkey Ball, the Ohio-based business that provided the animals.
A federal judge denied summary judgment to both parties in the declaratory action that was initiated after Buckeye Donkey Ball assigned its rights to West Bend Mutual Insurance Co.’s coverage at a settlement conference in the original case, which alleged negligence, against Buckeye. West Bend was the insurer for Buckeye.
“While the facts underlying the November 13, 2009, Donkey Ball show may not be in dispute, proving the operative insurance contract and the application of its terms are unresolved issues of fact, which render summary judgment inappropriate,” U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania said in a footnote.
Buckeye Donkey Ball is a traveling show that involves having people at the various venues ride its donkeys while playing basketball, according to the opinion in Sciolla v. West Bend. In November 2009, the show went to Charles Boehm Middle School in Bucks County where Amanda Sciolla and Meredith Hopkins, both teachers at the school, volunteered to participate.
Shortly after Hopkins mounted her donkey, it “reared back and jerked,” which caused serious trauma to her knee, according to the complaint filed against Buckeye.
Similarly, when Sciolla mounted her donkey, it, too, “reared back” and threw her to the floor, which caused trauma to her head and tailbone.
The pair alleged that they weren’t given proper instruction by the Buckeye worker who was running the show, claiming in the complaint that he “also failed to disclose that during the game, he would be running around behind the donkeys with a stick and jabbing at the donkeys with a metal pin, deliberately attempting to keep the donkeys active.”
In March 2010, West Bend denied coverage for the accident, citing an exclusion in the policy for “athletic or sports participants,” according to a copy of the letter filed with the court.
In July 2011, Sciolla and Hopkins agreed that they would seek recovery through the available insurance coverage and Buckeye provided an assignment of rights so that they could directly challenge West Bend’s denial of coverage, according to the motion of continuance filed in the original case against Buckeye.
In the current action, both parties agree that West Bend was providing general liability coverage to Buckeye at the time of the incident; however, they disagree about what the operative contract was.
The teachers included with their complaint against West Bend a copy of the insurance policy they say was effective in 2009. West Bend denied that it was the correct contract, according to Robreno’s opinion.
“The parties appear to dispute the authenticity, completeness, and application of plaintiffs’ proffered insurance contract,” Robreno said. “Additionally, central to resolving the parties’ dispute is determining whether plaintiffs constitute ‘players’ covered by the policy or ‘participants’ not covered under the exclusion.”
In the letter from West Bend to Buckeye disclaiming coverage, it said, “Our investigation reveals Meredith Hopkins and Amanda Sciolla were participants in the Donkey Ball event and each of them claim to have been injured as a result of being thrown from the animals during the event. The general liability policy issued to you does not provide bodily injury liability coverage to participants in the game.”
Robreno has scheduled a final pretrial conference for January 31.
Neither Andrew Baratta of Baratta, Russell and Baratta in Huntingdon Valley, Pa., nor Mark Kardos of Kardos & Goch in Philadelphia, who represented the teachers, could be reached for comment. Neither could Michael Saltzman of Goldberg Segalla in Philadelphia, who represented West Bend.
(Copies of the six-page opinion in Sciolla v. West Bend, PICS No. 12-2250, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •