(CN) – Insurance coverage is not available to a boy who may be infertile because his friend gave him a “ball tap” while playing “Dance Dance Revolution,” a Pennsylvania appeals court ruled.
Clayton Russell and his friends were playing the video game in his basement one evening in September 2006. Players of “Dance Dance Revolution” score points by stepping on a floor pad in a dance-like motion that the game instructs.
While Clayton was playing, one of his friends, Brandon Hearn, hit him in the groin from behind with his forearm. Clayton went to the hospital one day later and underwent surgery for tortion of the left testicle.
Diagnostic tests show that the boy may be permanently infertile.
Clayton and his mother sued Hearn for assault, negligence, infertility and infliction of emotional distress.
American National Property and Casualty Cos. had a homeowner’s insurance policy with Brandon’s parents, Thomas and Lynn Hearn. The firm sought declaratory judgment that it is not liable to the Russells, as their damages are based on intentional acts.
Brandon testified that his action was commonplace among his friends and that he felt “Dance Dance Revolution” was a “little kid’s game.”
“In our little group, if you were doing something, like, kind of stupid, that’s what you – you would get a ball tap,” he said in his deposition.
Brandon added that he felt “really bad” and “never meant him to go to the hospital.”
A judge in Montgomery County ruled for the insurer, and the Pennsylvania Superior Court agreed on June 9 that the injury was not covered under the Hearns’ policy.
“Here, it is alleged that Hearn intentionally and maliciously struck Clayton in the groin,” President Judge Emeritus Kate Ford Elliott wrote for a three-member panel.
“In fact, Hearn conceded as much in his deposition testimony. As such, there is no duty to defend or indemnify based on the policy exclusion for intentional acts resulting in bodily injury.”
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