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Insurer loses appeal in home-health worker crash case

May 16, 2018

An insurance dispute over who should pay for a bicyclist’s injuries sustained after he was struck by a vehicle driven by a home health aide will continue after an appeals court ruling that left the question open for now.

The case arises from a crash in which bicyclist Roland Hall was struck on Cumberland Road in Hamilton County by a vehicle driven by home health worker Jairiel Berfect in 2013. Berfect was employed by Advantage Home Health Care and was en route from one patient’s home to another when the crash occurred.

Hall and Berfect have since settled litigation involving the crash, but the instant case involves Berfect’s insurer, American Access, and her employer’s insurer, Cincinnati Insurance Co. Cincinnati sought a declaratory judgment that, among other things, American Access provided primary coverage to Berfect and her employer, and that Berfect is not an insured under Cincinnati’s policy to Advantage Home.

The trial court denied American Access’s motion for summary judgment in this case, and the Indiana Court of Appeals affirmed Wednesday in American Access Casualty Company v. Cincinnati Insurance Company, 29A02-1712-CT-2792.

The key issue is whether a business use exception in American Access’s insurance policy bars coverage to Cincinnati Insurance. In this case, Cincinnati argues its coverage should not apply because Advantage Home doesn’t compensate home health aides for their travel time to patients’ home or pay mileage for travel time. Cincinnati claims these workers are paid only for on-premises services performed at a patient’s residence, and therefore, Berfect should not be an insured.

“(H)er time and expense to drive from one patient to the next are not within her employment remuneration. Accordingly, in the situation before us, the business use exclusion of American Access’ policy has no application,” Judge Patricia Riley wrote for the panel. “…we conclude the business use exception in American Access’ insurance policy is ambiguous and does not bar coverage to Cincinnati Insurance.”

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