Insurer strikes out on Spring Training injury claim

Brendan Regan played baseball for the Fighting Bees of St. Ambrose University of Davenport, Iowa.

In the waning days of Winter and early days of Spring, college baseball teams in the frigid Midwest look for warmer climes in which to play. In March 2002 the St. Ambrose baseball team went to Homestead, Florida to play in the Homestead Classic.

Games were scheduled on March 10, 11, 12, and 14-17 -- but March 13 was an off day. There was no game scheduled. There was no practice.

Taking advantage of the free time, Brendan and a teammate explored the pool at their hotel... and then wandered to the adjacent beach. According to the unanimous opinion written by Justice Margaret O'Mara Frossard in Regan v. Mutual of Omaha, 2007 WL 2350174, "After arriving at the beach, plaintiff ran into the ocean, dove headfirst into a wave, and hit his head on a concealed sandbar. Teammates on the beach pulled plaintiff from the water; as a result of the diving accident, plaintiff sustained a paralyzing spinal cord injury." (Slip op. at 5.)

As a member school of the National Association of Intercollegiate Athletics (NAIA), St. Ambrose was required to be enrolled in the NAIA catastrophic athletic injury program. In 2002 that coverage was provided by Mutual of Ohmaha.

The policy provided coverage for "student athletes in all sanctioned and officially recognized intercollegiate sports" and stated:

Coverage is provided for participation in scheduled games, supervised practice sessions and during authorized group or team travel that is paid for or reimbursed by the sponsoring Organization in connection with such games or practice sessions.

(Slip op. at 2.)

The policy also defined "covered travel" as follows:

'Covered Travel' means team or group travel by participants in a Covered Event:

(a) directly to or from a Covered Event;
(b) authorized and paid for or reimbursed by the Sponsoring Organization; and
(c) supervised by staff members or a designated representative of the Sponsoring Organization.

Covered Travel begins with departing from the meeting place for such travel and ends upon the release of the Insured from the Sponsoring Organization's supervision.

Clearly, Regan wasn't injured in a game or practice nor was he injured going to or from a game or practice -- but, he said, his injury was incurred during team or group travel. The entire trip was supervised by the coaching staff -- and it occurred after departing from Davenport and prior to the team's return.

But Mutual of Omaha contended that, since the injury occurred on an off day, while Regan was swimming on his own personal free time, his activities fell outside the "Covered Activities and Events" described in the policy. The insurer argued that Regan was not supervised when he went to the beach and – since team members and their families contributed to the cost of the trip, the trip was not "paid for or reimbursed" by St. Ambrose.

Both sides moved for summary judgment.

Before filing their cross motions, however, the parties engaged in considerable discovery on the issues of supervision and fund raising. The new Appellate Court opinion discusses the deposition testimony.

Regan testified that he and his teammates were allowed to walk in the area around the hotel, including out onto the beach, without having to report to anybody. Regan said he and his teammates "were basically told that if [they] were going to leave or go somewhere outside of the hotel or after a game, that [they] were supposed to tell the coaches." There were random bed checks during the players' stay at their hotel, "and if they failed to tell coaches where they were going or got caught doing something they were not supposed to do, they would probably not get to play." (Slip op. at 4-5.)

Bees Coach Callahan testified that members of the team were to go everywhere as a group. If a player wanted to go anywhere on his own, he had to have a "buddy"; even with a buddy, players had to first receive permission from one of the coaches before leaving the group.

Callahan also testified that players were prohibited from drinking alcohol within 48 hours before a game (a rule that would encompass the entire trip); they were also prohibited from having overnight guests in their hotel rooms. Room assignments were made by an assistant coach. The players were not permitted to order from room service, and long distance service was not available on room telephones. Bed check was every night at 10 p.m., at which time the players were to be in their rooms with their lights out and "attempting to sleep." (Slip op. at 4.)

"Attempting" to sleep seems about as much as one could hope for: College kids don't normally sleep at 10 p.m. – 10 a.m. perhaps.

According to Coach Callahan's deposition testimony, on the team's day off, Regan and his teammates were "pretty much left to their own devices." Players were "free to pursue individual recreational activities in south Florida with each other, their parents, friends, and girlfriends." (Slip op. at 4.)

Coach Callahan went to get his hair cut on the team's day off; the assistant coach took a side trip to Fort Myers to see the Minnesota Twins' training facility. (Slip op. at 4.)

So the team members weren't being watched on their off day; the coaches weren't even there.

This was what the insurer seized on with regard to the supervision issue: The court's opinion notes that Mutual of Omaha emphasized "Coach Callahan's deposition testimony that there were not any rules or restrictions as to where players could go on the 'off day' and that players were basically free to do whatever they wanted." However the court recognized that the coach "provided this testimony after discussing the rules to which players were subject throughout the trip." (Slip op. at 13.) Regan, the court noted, "was in compliance with those rules at the time of his injury."

But Mutual of Omaha also argued that "St. Ambrose did not pay or reimburse plaintiff for his airfare, lodging, meal, and entertainment expenses" and that, because of this, "the second prong of the definition of covered travel, which requires that the travel be 'paid for or reimbursed by' St. Ambrose, was not satisfied." (Slip op. at 11.)

This contention was supported by some of the deposition testimony: Regan and his teammates had to raise funds to cover this Florida trip. Regan testified that, to raise funds, he and his teammates "sought and received pledges from sponsors based upon the number of miles they ran during conditioning." (Slip op. at 3.) There may be some college baseball programs which do not need player fund raising in order to make Spring Training trips – but one of my sons plays baseball in college and his team needs to raise money for its Spring Training trip, too. And the Bees' fund raising efforts did not make theirs any less a team trip; in a sense, since the players helped raise the money to get them to their destination, it made the entire trip, and not just the games, a true team effort.

Moreover, the Appellate Court noted that "the players did not keep the money necessary to pay for airfare, hotel, and food but, rather, turned that money over to Coach Callahan, who in turn secured group rates for the team at the hotel and the airline. Furthermore, the university paid the entry fee for the tournament and the cost of transporting the players to and from baseball games scheduled during the tournament" as well as the cost of transporting the team to and from Midway Airport in Chicago and to and from the airport in Miami. Under these circumstances, the court found "that there is no genuine issue of material fact that St. Ambrose paid for the team or group travel." (Slip op. at 11.)

But it would not matter that Regan and the rest of the Fighting Bees were under the coaches' supervision, even on their day off, and it would not matter that the team's travel was paid for or reimbursed by St. Ambrose even though the players helped pay their way with fund raising, if Regan was not injured during the course of "authorized group or team travel."

Mutual of Omaha argued that "'covered travel' contemplates a separate coverage evaluation for each segment of team travel and argues that plaintiff's analysis 'unreasonably assumes that Covered Travel must be a single all-encompassing event.'" The insurer argued that, under Regan's construction of the policy, the policy would be 'distorted' into a "24-hour-a-day comprehensive accident medical expense coverage during the entire Florida trip." The insurer suggested that "coverage may extend to certain segments of travel, but not to other segments of
travel, depending upon whether the three prongs of the definition of Covered Travel have been
satisfied for each leg of team travel." (Slip op. at 14.)

But the Appellate Court rejected the contention "that determining what constitutes 'covered travel' requires breaking down the team's trip to Florida into various segments." (Slip op. at 14.) Even though Regan was not "physically moving or being transported directly to or from a game or practice session at the time he was injured," the policy "does not state 'covered travel' means team or group transportation directly to or from a covered event. Rather, that provision defines 'covered travel' in part as team or group travel directly to or from a covered event. As plaintiff points out in his brief, in today's world travel is not simply limited to transportation, but also entails being away from home for a period of time and includes meals and lodging as well activities incident thereto." Staying at the hotel, using the facilities, using the beach – all were "part and parcel" of Regan's 'travel directly to the remainder of the games on the Florida trip and [were] in no way a detour or diversion from his destination - the remaining locations in Florida for the rest of the travel schedule.' Accordingly, we conclude there is no genuine issue of material fact that plaintiff was engaged in team or group travel directly to or from a covered event at the time of his injury." (Slip Op. at 10.)

The Appellate Court affirmed the Cook County Circuit Judge Peter Flynn's decision in Regan's favor: Mutual of Omaha was obliged to provide coverage.