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Chris Hubner v. Old Republic Insurance Co., Case No. 5D13-1350 (5th DCA)

The trial court in Hubner entered summary judgment in favor of the insurer in a declaratory judgment action initiated by the insurer, where the question in the case was whether Alan Norton was an “insured” under a liability policy. Norton was involved in an automobile accident which resulted in injuries to Chris Hubner. At the time of the accident, the insurer had issued a liability policy to Boy Scouts of America, which covered Boy Scouts of America’s Registered Volunteers while those individuals are “participating in an Official Scout Activity and in the scope of their duties as such.” At that time, Norton was the Director of Advancement and Leadership Training for Boy Scouts of America, Troop 370. His responsibility was to encourage scouts to advance by completing the requirements for whatever badge level they were working toward.

At issue in the case, Norton was assisting a scout in completing an Eagle Scout project, which was to clean up a cemetery that had become overgrown by trees and debris. The cleanup took several weeks. Throughout the project, Norton visited the cemetery approximately eight times. On the final day of the project, Norton was the last person to leave the cemetery. As he was leaving, Norton realized that he had not seen the scout take pictures of the completed project. Norton drove home to retrieve his camera, returned to the cemetery and photographed the completed project. On the way home after taking the photographs, Norton’s car struck Hubner’s head-on, seriously injuring himself and Hubner. Norton testified that the sole purpose of the trip was to photograph the cemetery for the scout’s project workbook. The trial court entered summary judgment in favor in the defense finding that Norton was not an insured because, although a Registered Volunteer, he was not participating in an official scout activity at the time of the collision.

The Fifth DCA disagreed. The policy defines Official Scouting Activity broadly to include an activity that is “consistent with the values, Charter and Bylaws and Rules and Regulations of Boy Scouts of America. The insurer argued that because the collision occurred after the conclusion of the cleanup project, Norton’s participation in that activity ended prior to the accident. The Fifth DCA found that the insurer focused on the wrong “Activity.” The Fifth DCA found that the activity Norton was participating in was not just the cleanup of the cemetery, it was providing assistance and encouragement to the scout towards the completion of his Eagle Scout requirement. The Fifth DCA further noted that the record demonstrated that Norton returned to the cemetery to take photographs, and that photographs were a part of a scout’s official project. Therefore, at the time of the collision, Norton was participating in the activity of assisting the scout in meeting the Eagle Scout requirement. Therefore the Fifth DCA reversed the summary judgment entered in favor of the defense.

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