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THE PROFESSIONAL LIABILITY EXCLUSION IN THE NAIL SALON’S INSURANCE POLICY IS NOT AMBIGUOUS AND EXCLUDES INJURY RESULTING FROM A “COSMETIC SERVICE;” PLAINTIFF ALLEGED SHE CONTRACTED AN INFECTION DURING A PEDICURE; COVERAGE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “professional liability” exclusion from the insured nail salon’s policy applied and coverage was properly denied. Plaintiff alleged she contracted an infection during a pedicure:

… [T]he professional liability exclusion states—in clear and unmistakable language—that the insured’s policy “does not apply to ‘bodily injury’ . . . due to . . . [t]he rendering of or failure to render cosmetic . . . services or treatments.” We agree with defendant that, contrary to plaintiff’s contention, “[t]here is no ambiguity in the wording of the exclusion” inasmuch as it is susceptible of only one reasonable interpretation: there is no coverage for bodily injury due to (i.e., “caused by”) the rendering (i.e., the performance) of a cosmetic service or treatment (e.g., a pedicure) … . Thus, employing ” ‘the test to determine whether an insurance contract is ambiguous [by] focus[ing] on the reasonable expectations of the average insured upon reading the policy and employing common speech’ ” … , we conclude that the exclusion is unambiguous because the average insured would understand the policy to exclude coverage for injuries caused by the performance of acts that constitute part of the pedicure service … . Walker v Erie Ins. Co., 2022 NY Slip Op 06332, Fourth Dept 11-10-22

Practice Point: Where an exclusion in an insurance policy is unambiguous it will be enforced. Here the nail salon’s insurance policy had a professional liability exclusion. Plaintiff alleged she contracted an infection during a pedicure. The pedicure was deemed included in the exclusion of bodily injury caused by the rendering of a cosmetic service (i.e., a pedicure).

 

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