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Vol. 3, Iss. 6
April 1, 2014

Brain Teaser:
Court Addresses Whether Damages Caused By A Slurpee Brain Freeze Are Covered

Sometimes coverage cases are so crazy that they can’t possibly be true. That’s the only way I can describe the Florida court’s recent decision in Gator State Property Casualty Corp. v. 7-Eleven Franchise.

Skeeter Martin, an eleventh grader, was walking home from school in Tallahassee when he stopped into a 7-Eleven store to pick up a couple of Slim Jims. Skeeter waited in line at the cashier, which was located not far from the Slurpee machine. While usually not a Slurpee drinker, the machine grabbed his attention because any large Slurpee purchased came in a collectible Nascar cup. Being a Nascar fan Skeeter got out of line and filled a large plastic cup with a mango flavored Slurpee. He took a large sip and within seconds was overcome by a Slurpee Brain Freeze. [In general, a brain freeze is the painful effect of the rapid cooling and rewarming of the capillaries in the sinuses.]

As luck would have it, or, in this case, bad luck, the next day Skeeter was scheduled to take the SAT exam. He sat for the exam. The results came back and they were not good. Not at all. Skeeter did horribly. His score was lower, significantly lower, than every practice exam he had taken. The consequences were severe. Skeeter lost all hope of getting into Dartmouth.

Skeeter’s low score on the exam simply made no sense whatsoever. He struggled for an answer and then, finally, hit upon it. The day before the SAT he had had that Slurpee. And it resulted in a bad case of Slurpee Brain Freeze. So no wonder he did so poorly on the SAT – his brain had been frozen.

Skeeter sued 7-Eleven for the damages that he allegedly sustained on account of the Slurpee Brain Freeze. The case went to trial. His vocational expert testified that Skeeter’s loss of earnings, over a 45 year career, on account of attending a less prestigious university, would be $2.5 million. The jury awarded Skeeter $2.5 million plus pre-judgment interest.

The 7-Eleven franchise was insured under a commercial general liability policy issued by Gator State Property & Casualty Company. Gator State had defended 7-Eleven under a reservation of rights. The insurer now filed a declaratory judgment action against 7-Eleven seeking a determination that it had no duty to indemnify 7-Eleven for Skeeter’s judgment. Gator State’s argument was that 7-Eleven was aware that Slurpees can cause brain freeze so, therefore, Skeeter’s damages were not covered because they were expected or intended.

Gator State and 7-Eleven filed cross motions for summary judgment. I can’t possibly describe how the court resolved this brain teaser. To see who won check out the court’s opinion here.



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