Volunteers of Fireworks Display Excluded From Coverage

While volunteering at separate Fourth of July display events, Timothy Olson , aka the estate of Timothy L. Olson (Olson), and Todd Zdroik (Zdroik) were severely burned by fireworks that exploded prematurely. Spielbauer Fireworks Company (Spielbauer) distributed the fireworks. Olson volunteered to open and close a bin for other volunteers to retrieve fireworks during a Rib Lake show. Zdroik (who later passed away from unrelated causes) volunteered as a shooter, where he manually lit fuses on the mortar shells at a Land O’Lakes event.

Olson and Zdroik sued Spielbauer’s for their injuries. Spielbauer’s was insured by T.H.E Insurance Company (T.H.E). A claim was filed and denied. Zdroik and Olson sued Spielbauer and, at that time, admitted to volunteer roles.

After reviewing the insurance policy and personal injury allegations, the district court ruled in favor of T.H.E. The court ruled that the insurer was not obligated to defend or indemnify Spielbauer since the losses involved excluded persons (volunteers). Olson and Spielbauer appealed.

The appeals court analyzed the General Liability and Excess policies and focused on the Shooters Endorsement. The critical issue was whether the exclusion applied to all volunteers or only those who assisted hired shooters or assistants.

The exclusion read:

“This policy shall NOT provide coverage of any kind (including but not limited to judgment costs, defense, costs of defense, etc.) for any claims arising out of injuries or death to shooters or their assistants hired to perform fireworks displays or any other persons assisting or aiding in the display of fireworks whether or not any of the foregoing are employed by the Named Insured, any shooter or any assistant.”

The defendants focused on the interpretation of “any other persons assisting or aiding in the display of fireworks.” They argued that the phrase “any other persons” might include volunteers, but only if they assisted hired shooters or assistants. However, there were no hired persons at either of the fireworks events.

T.H.E insisted that “other persons” was broader and included any assistant regardless if there was a hired employee or contractor. The word “or,” following the phrase “hired to perform other fireworks displays,” introduced a separate, discrete group of other persons who assisted the display and stated this group stood alone.

The court agreed with T.H.E that a reasonable insured would interpret the policy in the same manner. It did not require injecting ambiguity into a wordy but otherwise clear provision. The provision excluded anyone who assisted in a fireworks display.

Zdroik, Olson, and Spielbauer saw the court's reading as in tension with the provision’s use of punctuation and prepositions. They saw the absence of commas in the endorsement meant that it was one continuous phrase.

The court perceived the phrase differently. It stated the phrase “the fireworks display” indicated that anyone assisting (hired shooters, hired assistants, or otherwise) must be assisting in the same fireworks display that gave rise to the insurance claim. Under the plain and ordinary provision reading, T.H.E. had no obligation to Spielbauer for Zdroik’s or Olson’s claims.

The appeals court affirmed the district court.

T.H.E. Insurance Company, Plaintiff-Appellee, v. Trey D. Olson, as Special Administrator of the Estate of Timothy L. Olson, et al., Defendants-Appellants. United States Court of Appeals For the Seventh Circuit, Nos. 22-1143, 22-1170 & 22-1172, October 17, 2022