Under the liability exclusions of Carleen’s policy, a preclusion of coverage is provided for: “[b]odily injury or property damage arising out of the rendering of or the failure to render professional services.” Notably, the term ‘professional services’ is not defined under the Policy. Maryland’s intermediate appellate court, in Utica Mut. Ins. Co. v. Miller, 130 Md. App. 373 (1998), in the context of its review of a declaratory judgment action, had occasion to review what constituted ‘professional services.’ In that case, the court reviewed whether an insured’s alleged misappropriation of insurance proceeds in the insured’s capacity as an insurance broker constituted “professional services” as provided under the policy. As in Carleen’s Policy here, the insurance contract in Utica Mut. Ins. Co. v. Miller, did not define ‘professional services.’ In determining what activities fell within the category of ‘professional services,’ the Court of Special Appeals canvassed opinions from other federal and state courts and found persuasive guidance from a United States Court of Appeals for the Ninth Circuit decision in Bank of California, N.A. v. Opie, 663 F.2d 977 (9th Cir. 1981), which provided that: …show more content…
The term ‘professional’ in the context used in the policy provision means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. . . . In determining whether a particular act is of a professional nature or a ‘professional service’ we must look not to the title or character of the party performing the act, but to the act