A one-year-old child burned his hand severely when he fell against a woodburning stove in his baby-sitter's home as she turned away to watch television. The parents of four children paid a daily rate for the care of their respective offspring, an arrangement on a regular basis for about three months.

The baby-sitter's homeowners policy insurer denied coverage for an ensuing claim on the basis of a personal liability coverage exclusion for personal injury "arising out of business pursuits of any insured." Litigation resulted in trial court summary judgment affirming that the policy did not provide coverage. The insured appealed.

The appeal court adopted the view that "baby-sitting is a business pursuit if conducted on a regular and continuous basis for compensation. It cited a number of what it termed "the better reasoned cases" involving the issues at hand. It described, as typical, Stanley v. American Fire & Casualty Company, 361 So. 2d 1030 (Ala. 1978). The circumstances there were similar to those here. That court observed that "we are not dealing with a temporary or casual keeping of children, but rather with a more permanent arrangement for agreed upon compensation." The child care ". . . .was properly found to be a 'business pursuit'."

The appeal court said that, in most cases where coverage was found despite a business pursuit exclusion, reliance was placed on an exception to the exclusion for "activity which is ordinarily incident to a non-business pursuit." Therein the baby-sitting activity was described as incidental to the "non-business regimen of maintaining a household. . . ." The injuries were ascribed to conditions associated with and arising out of the maintenance of a household.

The appeal court here found that reasoning flawed, stating that "supervision is at the very heart of child care." It quoted the Supreme Court of Alabama as follows: "The business of child care contemplates the exercising of due care to safeguard a child of tender years from household conditions and activities; and any activity of the insured in this regard from which injury results cannot logically be called an activity ordinarily incident to a non-business pursuit. In other words, the activity referred to is a failure to supervise. . . ."

The judgment of the trial court was affirmed in favor of the insurance company and against the insured.

(ROCKY MOUNTAIN CASUALTY COMPANY, Respondent v. ST. MARTIN ET AL., Appellants. Washington Court of Appeals, Division Two. No. 13025-4-II. December 26, 1990. 60 Wn. App. 5. CCH 1991-92 Fire and Casualty Cases, Paragraph 3188.)