Insurance — CGL – Employee Exclusion – Casual Worker – Insufficient Record

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Capitol Specialty Insurance Corp. v. Ellis Wise Landscaping, Inc. (Lawyers Weekly No. 002-055-15, 12 pp.) (J. Michelle Childs, J.) 8:14-cv-00255; D.S.C.

Holding: The court cannot determine from the record whether casual employee Dawkins’ employment was within the course of the defendant-employer’s trade, business, profession, or occupation; as a result, the court cannot yet determine whether Dawkins’ on-the-job injury is excluded from the coverage of the commercial general liability insurance policy issued by the plaintiff-insurer to the employer.

The insurer’s motion for summary judgment is denied.

The insurer’s commercial general liability policy excludes coverage for employees who are injured on the job; however, the policy does not define “employee.” It says that “employee” includes “leased workers,” “loaned employees,” “rented employees,” “leased employees,” and “temporary employees,” but it does not include a “temporary worker.”

The statutory definition of an employee in S.C. Code Ann. § 42-1-130 excludes “a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer….”

On the current record, the court is unable to define the scope of the employer’s trade, business, profession, or occupation. Therefore, the court cannot determine at this time whether Dawkins – allegedly a casual employee – was an employee of the insured for purposes of the CGL policy’s employee exclusion.

Motion denied.