Wesley Patterson v. Mutual of Omaha Ins. Co.

United States Court of Appeals
For the Eighth Circuit
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No. 12-3838
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Wesley Patterson
lllllllllllllllllllll Plaintiff - Appellee
v.
Mutual of Omaha Insurance Company, a Nebraska Corporation
lllllllllllllllllllll Defendant - Appellant
John Doe, a Corporation
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 21, 2013
Filed: February 28, 2014
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
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 court1 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. We affirm.
I.
It may surprise some to learn that 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. See Bill Pennington, As Cheerleaders Soar Higher, So Does
the Danger, N.Y. Times, Mar. 31, 2007, at A1. Much of this danger is attributable to
the incorporation of acrobatic and gymnastic moves into cheerleading routines.
Cheerleaders are charged with, inter alia, 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.
Patterson joined the Prairie View cheerleading team in the fall of 2007 at the
behest of the team’s coach, Jim Price. 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. Price also permitted
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
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other cheerleaders who were not enrolled in Gymnastics II to attend the class. The
following semester, Patterson officially enrolled in Gymnastics II. 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.
Mutual provides a Catastrophic Injury Blanket Insurance Policy (the Policy)
to NCAA member schools, including Prairie View. The Policy covers student
cheerleaders participating in certain “Covered Event[s].” The Policy defines
“Covered Event” as follows:
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. Both
parties filed for summary judgment. The district court concluded that, as a matter of
law, the term “practice session” encompassed Patterson’s activities during
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Gymnastics II, but the court denied Patterson’s motion for summary judgment after
finding that a factual dispute remained over whether Patterson was a member of the
Prairie View cheerleading team at the time he was injured. After the parties
stipulated that Patterson was a member of the cheerleading team when he was injured,
the district court granted summary judgment to Patterson. Mutual then appealed the
district court’s conclusion that Patterson was injured during a “practice session”
under the terms of the Policy.
II.
“We review de novo a district court’s interpretation of an insurance contract
and its decision to grant summary judgment.” Land O’ Lakes, Inc. v. Empl’rs Ins. Co.
of Wausau, 728 F.3d 822, 827 (8th Cir. 2013). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The parties agree that Indiana
contract law governs the interpretation of the Policy.
We interpret terms in an insurance policy from the perspective of an ordinary
policyholder of average intelligence. Bradshaw v. Chandler, 916 N.E.2d 163, 166
(Ind. 2009) (quoting Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 246 (Ind.
2005)). When language in an insurance policy is clear and unambiguous, we give it
its plain and ordinary meaning. Id. We construe ambiguous language in favor of the
insured party, particularly when such language purports to exclude coverage. Id. “As
with other contracts, the interpretation of an insurance policy is generally a question
of law for the courts to decide, even if the policy contains an ambiguity needing
resolution.” Town of Orland v. Nat’l Fire & Cas. Co., 726 N.E.2d 364, 369 (Ind. Ct.
App. 2000). Thus, the presence of an ambiguity in an insurance policy does not
preclude summary judgment if we are able to resolve that ambiguity “without the aid
of a factual determination.” City of Lawrenceburg v. Milestone Contractors, L.P.,
809 N.E.2d 879, 883 (Ind. Ct. App. 2004).
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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. We analyze each requirement in turn to
determine if Patterson qualifies for coverage.
A.
We first address whether 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. Indiana courts
often refer to dictionaries to aid in this task. See, e.g., USA Life One Ins. Co. of Ind.
v. Nuckolls, 682 N.E.2d 534, 540 (Ind. 1997). Merriam-Webster’s Collegiate
Dictionary defines “practice” as “systematic exercise for proficiency” and “session”
as “a meeting or period devoted to a particular activity.” Merriam-Webster’s
Collegiate Dictionary 914, 1071 (10th ed. 1998).
Patterson’s activities during Gymnastics II fit this definition. 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. Of
course, these bare dictionary definitions do not capture every facet of the term
“practice session” as it is used in the Policy. For example, the Policy does not cover
cheerleaders who are injured during a meeting devoted to the systematic exercise of
an activity totally unrelated to a sports event. These additional requirements are
reflected in the Policy itself, which explicitly limits which practice sessions are
covered under the Policy, for instance by requiring that the practice session take place
in preparation for an intercollegiate sports competition. We take up these limitations
later in the opinion.
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Mutual argues, however, that we should read in additional limits on the
definition of “practice session” to account for differences between Gymnastics II and
the mandatory cheerleading practices held after school. Mutual asserts, for instance,
that cheerleaders were required to attend after-school practice but not Gymnastics II;
that students had to try out for cheerleading, while Gymnastics II was open to all
students; that cheerleading practice and Gymnastics II were held at different times
and at different places; that only seven of the thirty-five skills learned in Gymnastics
II were used in cheerleading; and that students received academic credit for
Gymnastics II but not for cheerleading.
The Policy does not contemplate any of these requirements for coverage, nor
has Mutual offered any definition or common understanding of the words “practice”
or “session” that includes these requirements. Mutual has demonstrated that
cheerleading practice during Gymnastics II differs from cheerleading practice after
school. Mutual has not shown, however, that this difference matters. 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, but there were only eight students in the
gym total. This apparent mathematical contradiction disappears with the
understanding that 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. As the following Venn diagram shows,
Patterson was in the region of overlap.
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Case law includes examples of similar overlaps between academics and
interscholastic athletics. See, e.g., Foster v. Houston Gen. Ins. Co., 407 So. 2d 759,
761 (La. Ct. App. 1981) (describing “practice sessions held during the regular
physical education class period”); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402,
404 (5th Cir. 1995); Hanson v. Reedley Joint Union High Sch. Dist., 111 P.2d 415,
416 (Cal. Ct. App. 1941). But see State ex rel. Ind. High Sch. Athletic Ass’n v.
Lawrence Circuit Court, 162 N.E.2d 250, 253-55 (Ind. 1959), overruled in part by
Haas v. S. Bend Cmty. Sch. Corp., 289 N.E.2d 495, 497 (Ind. 1972) (suggesting that
physical education does not include interscholastic athletics). Indeed, some schools
allow students to fulfill curricular physical education requirements by participating
in extracurricular activities. See, e.g., Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 301 (2001) (noting a state education board’s
“willingness to allow students to satisfy its physical education requirement by taking
part in interscholastic athletics”); Doe, 70 F.3d at 404; Hanson, 111 P.2d at 416.
Given this close relationship between modern interscholastic athletics and academics,
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we find Mutual’s proffered definition of “practice session,” which draws a bright line
between the two spheres, to be too rigid.
Indeed, it appears that Price himself contemplated some overlap between
academics and intercollegiate athletics during Gymnastics II. Cheerleaders who were
enrolled in Gymnastics II practiced skills during class that were substantially similar
to those they would practice after school. Cheerleaders who were not enrolled in the
class routinely attended the class. Patterson himself began attending Gymnastics II
before he was ever enrolled in the class. Price frequently discussed what would occur
at the after-school cheerleading practice during class. Meanwhile, Gymnastics II
students who were not on the cheerleading team practiced gymnastics apart from the
rest of the class. 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 argues that defining “practice session” to include a physical education
class would extend coverage to a risk that was not contemplated by the parties. We
find this argument unpersuasive. The risk to Mutual from a cheerleading practice
session is the same regardless of whether cheerleaders receive academic credit for the
practice. To read the Policy as providing coverage for this particular class does not
substantially expand the scope of Mutual’s liability, for most physical education
classes will not qualify for coverage simply because they do not involve student-
athletes training in concert for their specific sport. And even class periods that
constitute practice sessions will rarely qualify for coverage because Mutual has set
strict limits on coverage beyond the requirement that the injury occur during a
practice session. It is to these limits that we next turn.
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B.
The first of these additional requirements is that Price authorize, supervise, and
organize the cheerleading activities during Gymnastics II. Mutual argues that Price
did not authorize these activities because he lacked the authority to determine whether
to offer Gymnastics II as a class and did not decide when and where to schedule
Gymnastics II.
This argument proves too much. Price also lacked the authority to determine
whether to offer cheerleading as an extracurricular activity, so if Mutual is correct
that a coach’s authority must include the discretion to offer the activity itself, then
Mutual’s policy excludes the entire Prairie View cheerleading program from
coverage. Similarly, a requirement that the coach determine the practice schedule
would exclude coverage for any practice session whose timing is determined by a
school administrator instead of a coach. Some colleges may find it advantageous to
centralize the task of scheduling within a single department to minimize conflicts
between curricular and extracurricular activities, and though the record does not
reflect the extent to which that occurred in this case, we do not believe the Policy was
designed to penalize a school for implementing such a system.
More relevant to our inquiry is Price’s role in authorizing the activities that
took place during Gymnastics II. In this respect, Price had almost plenary authority.
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 some authority over
who attended the class and who did not. As noted above, on the day Patterson was
injured there were just as many cheerleaders under Price’s watch as there were
Gymnastics II students. 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
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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. In short, Prairie View authorized Gymnastics II,
but Price authorized the cheerleading practice.
C.
We next address whether the cheerleading activities during Gymnastics II were
performed “in preparation for a Qualifying Intercollegiate Sport team competition.”
The parties do not dispute that Prairie View’s football and basketball programs are
Qualifying Intercollegiate Sports under the Policy. The record is silent as to whether
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, but 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. Just as we would not require a basketball player injured during a
layup drill to prove that he would have attempted a layup during the next game to
establish coverage under Mutual’s policy, we will not require Patterson to point to a
specific game in the future at which he would have performed the exact routine he
was practicing. Were we to impose such a requirement, cheerleaders at after-school
practice would have to consider, for insurance purposes, whether they were scheduled
to perform each particular drill at a specific game in the near future. This would
defeat one of the central purposes of insurance, which is to provide the policyholder
peace of mind. It is enough for our purposes to note that Patterson was practicing
tumbling during the basketball season and that Prairie View cheerleaders performed
tumbling routines during home basketball games.
Mutual argues that because Patterson was performing a tumbling routine for
a grade when he was injured, he could not have been practicing a tumbling routine
in preparation for a Qualifying Intercollegiate Sport team competition. This argument
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again assumes that academics and intercollegiate athletics may never overlap.
Patterson was tumbling for a grade, yes, but that does not mean he was not also
tumbling in preparation for a game. The fact that Patterson began attending
Gymnastics II before he was ever enrolled in the class suggests that his primary
purpose in taking the class was to improve his skills as a cheerleader rather than to
learn gymnastics; the grade he received for the class was ancillary to this benefit.
Indeed, Mutual acknowledges that cheerleaders who took Gymnastics II were
routinely awarded “A’s,” so we doubt that Patterson was overly concerned about his
grade when he began his routine on that day.
D.
Lastly, we address whether the activities during Gymnastics II were “directly
associated with the activities of a Qualifying Intercollegiate Sport team.” As an
initial matter, it is difficult to imagine a scenario where the conclusion that Patterson
was preparing for a Qualifying Intercollegiate Sport team competition does not
compel the conclusion that his activities were “directly associated” with a Qualifying
Intercollegiate Sport team. In any event, we believe this requirement is satisfied. 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. Patterson was
practicing a tumbling routine during the basketball season, and tumbling routines
were used in cheers during games. We conclude 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.
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III.
The judgment is affirmed.
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