An insurance company owed no duty to defend the Montville SchoolDistrict in a suit by an alleged victim of molestation committed bya former teacher, a federal judge in Newark has ruled.

Abusive act exclusion

Zurich American Insurance Co. was entitled to summary judgment because the acts thatformed the basis of the suit fell within the abusive act exclusionin the policy language, U.S. District Judge Kevin McNultyruled.

The judge rejected Montville's assertion that it is entitled tocoverage because the abuse alleged in the suit took placetwo years after the teacher left the school district.

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The teacher, Jason Fennes, was employed by Montville schoolsfrom 1998 to 2010, where he taught first grade and coached track.After resigning from the district, he took a position with CedarHill School, a private school in Somerset. At Cedar Hill, he facedallegations of sexual abuse of students.

Both Cedar Hill and Montville were sued by one alleged victim,identified in court documents as Child M, who had been a Cedar Hillstudent. The Child M suit said Montville knew of multiple instancesof improper conduct between Fennes and children while he wasteaching in that district, but made a deal calling for him toresign if the district agreed not to notify the authorities or tomention those incidents in references to future employers.

Fennes was sentenced in January to 14 years inprison for sexually abusing five girls in the Montvilledistrict. He also pleaded guilty in October 2016 to sexuallyabusing one girl at Cedar Hill and is awaiting sentencing in thatcase.

The Child M suit claimed that the plaintiff would not have beenassaulted but for Montville's failure to provide "pertinent andhighly relevant information" to Cedar Hill.

Bodily injury coverage

After Montville sued Zurich, the insurance company disclaimedcoverage under the part of its policy providing insurance for abodily injury caused by an occurrence. Excluded from coverage areclaims for bodily injury arising out of an abusive act. Inaddition, Zurich said one of Child M's allegations — that theschool district knew about Fennes' alleged prior abusive acts butfailed to report to them to authorities — brought the lawsuit underthe "prior known abusive acts" exclusion in the policy.

McNulty rejected Montville's argument that Fennes was notemployed by Montville when the alleged abuse of Child M took place."'Abusive acts' are not defined to include only those committedagainst Montville students. Far from it: An abusive act is 'any actor series of acts of actual or threatened abuse or molestation doneto any person by anyone,'" McNulty said.

"For purposes of the abusive-acts exclusion, it does not matterthat Montville no longer employed Fennes or that Child M was not aMontville student," McNulty said.

'Clear and unambiguous'

The judge said the terms of the abusive act exclusion are "clearand unambiguous, and I will not engage in a strained constructionto support coverage."

Susan Hodges of Schwartz Simon Edelstein & Celso inWhippany, representing the school district, did not immediatelyreturn a call. Lorraine Armenti of Coughlin Duffy in Morristown,who represented Zurich, also did not immediately return a call forcomment.

Contact the reporter at [email protected]. On Twitter:@ctoutantnjlj.