Colleges, coeds & sexual assault: Does insurer have duty to defend negligence claim?

This story is reprinted with permission from FC&S Legal, the industry's only comprehensive digital resource designed for insurance coverage 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 Sexual Violence Resource Center, one in five women and one in 16 men are assaulted while in college. When the unthinkable happens and a lawsuit is filed, the college usually calls the insurer, but is there 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 college against a negligence lawsuit alleging that a 19-year-old student had been assaulted and raped on the college's campus. 

Donna P. Green, as guardian ad litem for L.M.S., sued Pearl River Community College (PRCC), alleging that L.M.S. was a 19-year-old student living in a dormitory on the PRCC Poplarville campus when she was sexually abused and molested by another PRCC student.

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

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

Nevertheless, Green asserted, the alleged abuser had suffered no consequences.

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 basketball coach in the hallway of L.M.S.'s all-woman dormitory. Even though men were prohibited from being in the dormitory after 10:00 p.m., Green asserted, the basketball coach did nothing about the alleged abuser's presence there.

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

According to Green, while she was in the dormitory, the alleged abuser entered L.M.S.'s locked room using an access card he somehow had 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 further bodily harm if [L.M.S.] was to follow him.”

Negligence claims against college

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

• Failing to keep the campus and dormitory safe;
• Failing to dismiss the alleged abuser from PRCC and the basketball team after he had tested positive for marijuana use;
• Improperly recruiting the alleged abuser;
• Failing to take action when the alleged abuser had been observed 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 caused L.M.S. to be sexually assaulted and raped.

Policy exclusion for abuse or molestation

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

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

In other words, Acadia argued, the alleged abuser's conduct amounted to actual or threatened abuse or molestation, and claims arising from that conduct were excluded from coverage by the policy's abuse or molestation endorsement.

For its part, PRCC argued that the first paragraph of the endorsement did not apply because 19-year-old L.M.S. was not in PRCC's custody or control, and there was a question of fact regarding whether L.M.S. was under PRCC's care. PRCC noted that Green had contended that “[t]he allegations of the underlying complaint … assert claims against PRCC for its own active negligence 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 advertising injury” arising out of:

1. The actual or threatened abuse or molestation by anyone of any person 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 or ever was legally responsible and whose conduct would be excluded by Paragraph 1. above. 

Court supports insurer

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

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

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

In the district court's view, the allegations of the underlying complaint established that L.M.S. “was under the care, custody or control of PRCC.” The district court observed that Ms. Green's allegations included that PRCC “had many policies, procedures, rules and regulations concerning the living conditions in the dormitories,” including that only residents or escorted visitors were allowed inside the dormitories; that activities were visually monitored by staff; that opposite gender visitation was limited in time and location; that the dormitories closed for five hours each night; and that any person attempting to enter the dorm during closed hours faced dismissal from PRCC.

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

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

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

The case is Acadia Ins. Co. v. Pearl River Community College. 

FC&S Legal Comment

A number of other cases have found the language of the abuse or molestation endorsement to be clear and unambiguous, including two from Mississippi: Lincoln County 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 an alleged sexual assault on a student by another student, Lincoln Cty. Sch. Dist., or for injuries caused by allegedly unauthorized physical examinations conducted at a medical clinic. Raddin.

 Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc.

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