Submitted November 21, 2013.
Appeal fro United States District Court for the District of Nebraska - Omaha.
For Wesley Patterson, Plaintiff - Appellee: Maren Lynn Chaloupka, Attorney, CHALOUPKA & HOLYOKE, Scottsbluff, NE.
For Mutual of Omaha Insurance Company, a Nebraska Corporation, Defendant - Appellant: Joseph Edward Jones, Timothy J. Thalken, FRASER & STRYKER, Omaha, NE.
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
WOLLMAN, Circuit Judge.
Wesley Patterson, a student cheerleader at Prairie View A& M University (Prairie View), was paralyzed while practicing a tumbling maneuver during gymnastics class. Patterson sued Mutual of Omaha Insurance Company (Mutual), seeking coverage under the insurance policy that Mutual had issued to Prairie View as a member of the NCAA. Mutual's policy covers student cheerleaders who are injured during cheerleading practice sessions. The district court denied Mutual's motion for summary judgment and granted Patterson's motion for summary judgment after concluding that the term " practice session" in Mutual's policy included the gymnastics class Patterson was attending when he was injured. We affirm.
It may surprise some to learn that cheerleading is, by some measures, the second most dangerous college sport in the country. Cheerleading trails only football in terms of the total dollar value of catastrophic injury insurance claims submitted to the NCAA's insurers. See Bill Pennington, As Cheerleaders Soar Higher, So Does the Danger, N.Y. Times, Mar. 31, 2007, at A1. Much of this danger is attributable to the incorporation of acrobatic and gymnastic moves into cheerleading routines. Cheerleaders are charged with, inter alia, being launched high into the air, performing a series of flips and twists, and landing gracefully back into the arms of their teammates, all without pads.
Patterson joined the Prairie View cheerleading team in the fall of 2007 at the behest of the team's coach, Jim Price. As a cheerleader, Patterson was required to attend cheerleading practice from 5:30 p.m. to 8:30 p.m. every Monday through Thursday. Price also taught Gymnastics II, a one-credit physical education class held from 1:00 p.m. to 1:50 p.m. every Monday and Wednesday. Although Patterson was not enrolled in Gymnastics II, he began attending the class in the fall of 2007 to practice tumbling, a form of gymnastics used in cheerleading. Price also permitted other cheerleaders who were not enrolled in Gymnastics II to attend the class. The following semester, Patterson officially enrolled in Gymnastics II. On January 23, 2008, Patterson was attempting to perform a round-off back-handspring back tuck as part of a graded skills exam in Gymnastics II when he fell and injured his spinal cord, rendering him an incomplete quadriplegic.
Mutual provides a Catastrophic Injury Blanket Insurance Policy (the Policy) to NCAA member schools, including Prairie View. The Policy covers student cheerleaders participating in certain " Covered Event[s]." The Policy defines " Covered Event" as follows:
Covered Event means, for Student cheerleaders:
a. activities performed as part of the cheer unit for a Qualifying Intercollegiate Sport team competition scheduled by the Insured ...