Business Pursuits Exclusion in Virginia

Virginia law defines a "business pursuit" as follows:

To constitute a business pursuit, there must be two elements: first, continuity, and, secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.

Virginia Mut. Ins. Co. v. Hagy, 352 S.E.2d 316, 318 (Va. 1987). CMLP has identified no Virginia cases interpreting this test in the context of online publishing out of the home (or elsewhere).

As a general matter, the Virginia Supreme Court has given a rather broad interpretation to the category of business pursuits. In Hagy (above), the court ruled that an insured person who performed childcare in her home was engaged in a business pursuit as a matter of law, even though she testified that, after experiencing a downturn in her business, her motivation for doing so was "love for the child rather than the prospect of financial gain." The court noted that the childcare operation bore all the outward signs of a business for profit and found that even a small amount of income was sufficient to provide evidence of a "profit motive."

Therefore, if you live in Virginia, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

Note that specific language in a policy might lead a court to a result different from the overall state trend.


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