Is a 16-year-old who is asked by a nonprofit agency to drive some other participants home from a youth event when the agency had trouble fitting all of the participants into its vans considered a “volunteer” for the agency?
The issue was important because the driver was involved in an accident and his four passengers were killed. When the agency was sued, the insurance carrier claimed that the incident was excluded because accidents involving vehicles driven by “any insured” were not covered and it said the driver was an insured “volunteer.”
The facts were undisputed. Youth Alive, a nonprofit providing services for at-risk youth, was having trouble fitting all of the participants in its vans to get them home from an event. One of the staff asked another participant, 16-year-old Herbert Lee, to drive some of the others. It turned out that he was driving a stolen vehicle and, when spotted by the police, tried to get away and lost control, striking a tree and killing the others. He was later convicted of manslaughter.
The policy excluded coverage for accidents involving vehicles driven by “any insured,” even if the claim alleged negligence or other wrongdoing in supervision, hiring, training or monitoring. Insureds included “volunteer workers only while performing duties related to the conduct of your business.” It defined a volunteer as “a person who is not your ‘employee,’ and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed by you.”
A federal District Court in Kentucky has held that the driver was not a volunteer and that coverage was therefore available. “We consider how an ‘average man’ would interpret the term ‘volunteer worker’ in light of the prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured,” it said.
“Lee did not volunteer or offer to ‘donate his time’ to work for Youth Alive,” the Court wrote. “Lee’s mother submitted applications for Lee to be a child participant in the program, so that he could benefit from Youth Alive’s services to the community. Lee was spontaneously asked to drive four other kids home, along with himself, as they lived very near to that particular youth event. Lee’s compliance with the request does not transform him into a ‘volunteer worker’ under the Policy. Lee was not given a ‘scope of duties’ as contemplated by the CGL Policy. Further, Youth Alive required volunteer workers to file applications and be of a certain minimum age, and have experience and abilities. Youth Alive required its volunteer workers to go through training, because its volunteers worked with troubled youths and would be taking care of children in the community. We do not find that an average person considering the circumstances of the organization would conclude that one of Youth Alive’s own child participants could constitute a ‘volunteer worker’ under the definition of the CGL Policy and common understanding.” (Philadelphia Indemnity Insurance Company v. Youth Alive, W.D. KY, No. 3:09-cv-347, 2/13/12.)
YOU NEED TO KNOW
It is fascinating to see how people dance around the specific terms of a policy when the real argument is less about the terms than the result that people want to achieve. The automobile exclusion, which covers both staff and volunteers, is included because most drivers have to have insurance in order to drive and that insurance is supposed to cover an accident. Carriers consider that in setting premiums. An agency can assure that its employees and volunteers actually have insurance before they allow them to drive for the organization. (See Ready Reference Page: “Volunteer Contract Can Define Commitments”) It may have been negligent to ask a 16-year-old to drive other kids home, but that is exactly the kind of negligence that insurance is supposed to protect against. For both the victims and the agency, that is why insurance exists.
To the extent that the opinion relies the “average man’s” interpretation of what it means to be a volunteer, it was significantly helped by the formality with which the agency treated its volunteer recruitment process. (For more on the legal issues of involving volunteers in your program, listen to our pre-recorded webinar available in our bookstore.)