An Axa XL unit does not have to defend or indemnify a fireworks company in connection with two incidents in which volunteers were injured, a federal appeals court ruled Monday.
In 2018, two volunteers, Timothy Olson and Todd Zdroik, sustained injuries while volunteering at Wisconsin fireworks displays in Rib Lake and Land O’ Lakes, Wisconsin, according to the ruling by the 7th US Circuit Court of Appeals in Chicago in THE Insurance Co. v. Trey D. Olson, as Special Administrator of the Estate of Timothy L. Olson, et al.. Mr. Olson later died of unrelated causes.
Mr. Olson’s estate and Mr. Zdroik sued the fireworks distributor, Bellevue, Wis.-based Spielbauer Fireworks Co., in Wisconsin state court.
Spielbauer̵7;s insurer, Axa XL unit THE Insurance Co., filed suit in U.S. District Court in Green Bay, seeking a declaration that it was not obligated to defend or indemnify the fireworks company based on a “Shooters Endorsement” exclusion in its general and excess liability policy. .
The District Court ruled in favor of the insurer and was upheld by the three-judge Court of Appeal panel. The endorsement said the policy would not provide coverage for injury or death “to shooters or their assistants engaged to conduct fireworks or other persons assisting or adding to the display of fireworks.”
The panel agreed with the district court that the reference to “other persons” included volunteers. It “clearly and unequivocally creates two distinct groups excluded from coverage,” hired shooters and their assistants and the “large remaining category” of “other persons” who help, according to the ruling, to confirm the subterfuge.
The exclusion would not apply to volunteers if they were assisting hired shooters or hired assistants, as the plaintiffs argued, the ruling said, affirming the lower court.
Attorneys in the case did not respond to requests for comment.