This story is reprinted with permissionfrom FC&S Legal, the industry'sonly comprehensive digital resource designed for insurancecoverage law professionals. Visit the website to subscribe.

Although most college campuses are safe places, occasionally,bad things — including sexual assaults — can happen.

According to the National SexualViolence Resource Center, one in five women and one in 16 menare assaulted while in college. When the unthinkable happens and alawsuit is filed, the college usually calls the insurer, but isthere a duty to defend the school?

According to a recent Mississippi federal district court ruling,one college's insurance company had no duty to defend the collegeagainst a negligence lawsuit alleging that a 19-year-old studenthad been assaulted and raped on the college's campus.

Donna P. Green, as guardian ad litem for L.M.S., sued PearlRiver Community College (PRCC), alleging that L.M.S. was a19-year-old student living in a dormitory on the PRCC Poplarvillecampus when she was sexually abused and molested by another PRCCstudent.

Green alleged that, in 2013, the alleged abuser had beenrecruited by PRCC basketball coaches to play basketball for PRCC onan athletic scholarship and that he had been admitted to PRCCdespite not being eligible to attend college.

Green also alleged that PRCC should have known of the allegedabuser's “propensity for violence” from his high school records.Further, Ms. Green alleged, in the fall of 2014, he had beenarrested for possession of marijuana twice within six weeks, andhad tested positive for marijuana use in the interim.

Nevertheless, Green asserted, the alleged abuser had suffered noconsequences.

Was the dorm secured properly?

Green alleged that in the early morning hours of Feb. 8, 2015,the alleged abuser was observed by the PRCC women's basketballcoach in the hallway of L.M.S.'s all-woman dormitory. Even thoughmen were prohibited from being in the dormitory after 10:00 p.m.,Green asserted, the basketball coach did nothing about the allegedabuser's presence there.

Further, Green alleged, PRCC failed to notice that the doors tothe dormitory were not securely fastened or locked.

According to Green, while she was in the dormitory, the allegedabuser entered L.M.S.'s locked room using an access card he somehowhad obtained. He then “proceeded to terrorize and threaten [L.M.S.]and then to forcibly and repeatedly sexually assault and rape[L.M.S.] before leaving [L.M.S.'s room] with threats of furtherbodily harm if [L.M.S.] was to follow him.”

Negligence claims against college

Green's claim against PRCC was for negligence, which she allegedPRCC had committed by, among other things:

• Failing to keep the campus and dormitory safe;
• Failing to dismiss the alleged abuser from PRCC and thebasketball team after he had tested positive for marijuanause;
• Improperly recruiting the alleged abuser;
• Failing to take action when the alleged abuser had beenobserved in the female dorm after hours;
• Failing to properly secure the premises; and
• Failing to follow its own safety policies and procedures.

Green alleged that PRCC's negligence proximately had causedL.M.S. to be sexually assaulted and raped.

Policy exclusion for abuse ormolestation

PRCC's insurance carrier, Acadia Insurance Company, filed adeclaratory judgment action to determine its obligations under theinsurance policy it had issued to PRCC.

Acadia, contending that the abuse or molestation endorsement toits policy excluded coverage for the injuries alleged by Green,moved for judgment on the pleadings. In particular, it argued thatthe claims in Green's lawsuit against PRCC all originated from orarose out of the allegation that the alleged abuser had “proceededto terrorize and threaten [L.M.S.] and then to forcibly andrepeatedly sexually assault and rape [L.M.S.] before leaving [herroom] with threats of further bodily harm if [L.M.S.] was to followhim.”

In other words, Acadia argued, the alleged abuser's conductamounted to actual or threatened abuse or molestation, and claimsarising from that conduct were excluded from coverage by thepolicy's abuse or molestation endorsement.

For its part, PRCC argued that the first paragraph of theendorsement did not apply because 19-year-old L.M.S. was not inPRCC's custody or control, and there was a question of factregarding whether L.M.S. was under PRCC's care. PRCC noted thatGreen had contended that “[t]he allegations of the underlyingcomplaint … assert claims against PRCC for its own activenegligence which resulted in injury to L.M.S.”

The Abuse or Molestation Endorsement provided:

This insurance does not apply to“bodily injury,” “property damage” or “personal and advertisinginjury” arising out of:

1. The actual or threatened abuse or molestation by anyone of anyperson while in the care, custody or control of the insured,or
2. The negligent:
   1. Employment;
   2. Investigation;
   3. Supervision;
   4. Reporting to the proper authorities, or failure to so report;or
   5. Retention;

of a person for whom any insured is orever was legally responsible and whose conduct would be excluded byParagraph 1. above.

Court supports insurer

The district court, finding that the language of the endorsementwas not ambiguous, granted Acadia's motion.

In its decision, the district court first decided that L.M.S.'sage did not determine whether she was in the care, custody, orcontrol of PRCC.

After noting that the terms “care,” “custody,” and “control” hadnot been given special meanings in the policy, the court declaredthat to be in someone's “care” did not require physical custody orcontrol of the person.

In the district court's view, the allegations of the underlyingcomplaint established that L.M.S. “was under the care, custody orcontrol of PRCC.” The district court observed that Ms. Green'sallegations included that PRCC “had many policies, procedures,rules and regulations concerning the living conditions in thedormitories,” including that only residents or escorted visitorswere allowed inside the dormitories; that activities were visuallymonitored by staff; that opposite gender visitation was limited intime and location; that the dormitories closed for five hours eachnight; and that any person attempting to enter the dorm duringclosed hours faced dismissal from PRCC.

The district court ruled that these allegations showed that PRCC“exercised substantial, supervisory control” over L.M.S.'s livingconditions and freedom of movement and, therefore, were adequate toshow that L.M.S. was in the care, custody, or control of PRCC atthe time of the alleged sexual assault.

Next, the district court decided that the “active negligence”Ms. Green alleged against PRCC was “related to and interdependenton” the alleged abuser's intentional conduct. Ms. Green would haveno claim against PRCC were it not for the alleged sexual assault,the district court said, adding that an insurer had “no duty todefend or to indemnify its insureds against claims that could notbe brought absent the underlying and excluded tortiousconduct.”

Therefore, the district court concluded, Green's negligenceclaims did not establish an injury that was within coverage underthe Acadia policy.

The case is Acadia Ins. Co. v. Pearl River CommunityCollege.

FC&S Legal Comment

A number of other cases have found the language of the abuse ormolestation endorsement to be clear and unambiguous, including twofrom Mississippi: LincolnCounty School District v. Doe, and Employers Mutual Casualty Co. v. Raddin. In these cases,the court found no coverage was available for injuries caused by analleged sexual assault on a student by another student, LincolnCty. Sch. Dist., or for injuries caused by allegedlyunauthorized physical examinations conducted at a medical clinic.Raddin.

StevenA. Meyerowitz, Esq., is the director of FC&S Legal, theeditor-in-chief of the Insurance Coverage Law Report, and thefounder and president of Meyerowitz CommunicationsInc.

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