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Vol. 11 - Issue 3

June 15, 2022


Blue Man Group Gets Into A Coverage Case!


I have been in cities umpteen times where the show Blue Man Group was playing and I’ve never felt the urge to go see it.  Like not even one iota of an inkling.  Maybe I’m missing something and this has been a huge loss on my part.  After all, the show has been around for decades and played all over the world.  So, there must be a reason for this.  But I’d still choose watching Love Boat reruns over Blue Man Group.  It has always felt like it would be as bad as CATS.  And that’s saying a lot.  [If you’ve seen Blue Man Group, I’d love to hear what you think of it.]

Blue Man Group has a part in Allstate Property & Casualty v. Tortora, No. 20-78 (D. Nev. Mar. 10, 2022).  Ironically, it is a very interesting and entertaining decision.

Jeff Tortora was performing at a club in a rock band called Tinnitus.  [I love that name.]  Daniel Facchian was in the crowd and gestured for Tortora to jump off the stage and crowd surf.  Tortora did so and landed on Facchian.  Facchian sued Tortora for personal injuries.  [If the case stopped right here it would be great!  And we haven’t even gotten to the Blue Man Group part.]

Allstate undertook Tortora’s defense and filed an action seeking a determination that it had no duty to defend or indemnify Tortora.

Principally at issue was whether the Allstate homeowner’s policy’s “business pursuits” exclusion precluded coverage.  The exclusion exempts from coverage bodily injury “arising out of the past or present business activities of an insured person.”  Then, business is defined as “any full-or part-time activity of any kind engaged in for economic gain.”

The court held that the “business pursuits” exclusion applied.  Tortora’s regular occupation was as a percussionist for Blue Man Group.  But he was also paid to play in Tinnitus.  For gigs at Count’s – the club at issue – the band was paid $600 per performance, and over time that was raised to $1,200, which was split equally among the six members.  Tinnitus existed since 2008 and would not perform without getting paid.  [Although it performed for free, in other countries, while Blue Man Group was on international tours.]

Seeking to avoid the “business pursuits” exclusion, Tortora testified that, although the band required payment to perform, he played in the band for fun and it was a hobby and “not a financial enterprise” for him, and that performing with Tinnitus “just . . . feeds the soul.”

Based on these facts, the court held that the “business pursuits” exclusion applied:

“Tortora’s performances with Tinnitus constitute part-time activity engaged in for economic gain as defined in the policy. Under Dwello [v. American Reliance, 990 P.2d 190 (Nev. 1999)]  the activity involved customary or continuous engagements and involved a profit motive. Although Tinnitus performed only a few times each year, it has existed since 2008 and played both internationally and domestically. The band would not play in the United States without being paid, its compensation at Count's doubled over time, each band member received $200 for a 90-minute performance, and if offered other gigs, the band would have taken them. The mere fact that the band members had other main sources of income or that they also played for the joy of entertaining does not negate economic gain or a profit motive.”

The decision aligns with many involving the “business pursuits” exclusion under a homeowner’s policy.  The “it’s just a hobby” argument is routinely rejected by courts.  It is easy to see why people with “businesses,” that are really just hobbies, and where the money received is minimal -- and perhaps only covering expenses – do not have commercial general liability policies. 




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