Liberty University, Inc. v. Citizens Insurance Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 6:13-cv-00033-NKM-RSB. [999618308]. [14-2254]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2254

LIBERTY UNIVERSITY, INC.,
Plaintiff – Appellee,
v.
CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER
INSURANCE COMPANY; HANOVER INSURANCE COMPANY,

AMERICAN

Defendants – Appellants.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, Senior
District Judge. (6:13-cv-00033-NKM-RSB)

Argued:

May 13, 2015

Decided:

July 10, 2015

Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Niemeyer and Judge Duncan joined.

ARGUED: John Peter Malloy, ROBINSON & COLE LLP, Hartford,
Connecticut, for Appellants.
Harold Edward Johnson, WILLIAMS
MULLEN, Richmond, Virginia, for Appellee.
ON BRIEF: Thomas S.
Garrett, HARMAN CLAYTOR CORRIGAN & WELLMAN, Richmond, Virginia;
Wystan M. Ackerman, ROBINSON & COLE LLP, Hartford, Connecticut,
for Appellants.
Calvin W. Fowler, Jr., WILLIAMS MULLEN,
Richmond, Virginia, for Appellee.

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THACKER, Circuit Judge:
In
University,

November
Inc.

2012,

Janet

(“Appellee”),

Jenkins

alleging

sued

that

Liberty

the

school

participated -- both directly and vicariously -- in a scheme to
kidnap Jenkins’s daughter in order to disrupt the parent-child
relationship.

In her complaint (“Jenkins Complaint”), Jenkins

alleged that Appellee and its agents helped Lisa Miller, the
child’s biological mother and Jenkins’ former partner in a samesex civil union, to defy state court visitation orders and to
abscond with the child to Nicaragua.
The

district

court

ruled

that

Citizens

Insurance

Company of America (“Appellant”), Appellee’s liability insurance
carrier, has a duty to defend Appellee.

Under the insurance

policy at issue, Appellant must defend Appellee against suits
alleging certain harms that arise from an “occurrence” -- an
unexpected

accident,

which

does

not

fall

under

any

of

the

coverage exclusions.

The policy also contains a “Separation of

Insureds”

which

provision,

requires

the

claim by each named insured individually. 1

1

court

to

evaluate

a

Concluding that this

In addition to Appellee, the Jenkins Complaint names
Victoria Hyden, who was a “student worker” at Liberty University
School of Law, as a defendant. J.A. 44. The Jenkins Complaint
alleges that Hyden acted as Appellee’s agent when she “aided and
abetted” the kidnapping.
Id. at 49 (internal quotation marks
omitted).
Although the Jenkins Complaint names many other
(Continued)
2

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Separation

of

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Insureds

Pg: 3 of 32

provision

is

ambiguous

and

should

be

interpreted in Appellee’s favor, the district court refused to
consider the intent of Appellee’s agents when determining if the
complaint

alleged

an

accidental

policy’s exclusions applied.

“occurrence”

and

whether

the

The district court also decided

that, even if the Separation of Insureds provision would not
prevent imputing the intent of Appellee’s agents to Appellee,
the Jenkins Complaint failed to “sufficiently allege” Appellee’s
vicarious liability.

Thus, the district court granted summary

judgment and awarded defense costs to Appellee.
We conclude otherwise.

Because the Jenkins Complaint

does not allege an “occurrence,” and because it triggers the
policy’s coverage exclusions, Appellant has no duty to defend.
I.
We review a grant of summary judgment de novo.

See

CACI Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d
150, 155 (4th Cir. 2009).

defendants, they are not named insureds under the policy and are
not essential to resolving this appeal.
Citations to the “J.A.” refer
filed by the parties in this appeal.

3

to the Joint Appendix

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II.
A.
The Jenkins Complaint
The child at the core of this dispute was born to Lisa
Miller and Janet Jenkins in 2002 while the two women were joined
in a Vermont same-sex civil union.

Miller is the biological

mother and a legal parent to the child.

Jenkins is also the

child’s legal parent, pursuant to a 2004 Vermont state court
ruling.

Miller subsequently converted to Christianity; moved to

Virginia; and believing that homosexuality was sinful, sought to
prevent

Jenkins

from

having

contact

with

her

daughter.

For

several years, Miller defied visitation orders issued by Vermont
and

Virginia

courts.

In

2009,

facing

the

possibility

that

Vermont or Virginia would transfer custody to Jenkins, Miller
absconded to Nicaragua with the child.

Jenkins has not seen her

daughter since.
Jenkins brought a lawsuit in Vermont district court on
her own behalf and on behalf of her daughter in November 2012.
Appellee

and

University,

Victoria

were

among

Hyden,
the

a

student

named

worker

defendants.

at

Liberty

The

Jenkins

Complaint alleges that Appellee assisted Miller by withholding
the

child

liable

for

Jenkins

and

As

country.

from

result,

Jenkins

a

conspiring

to

by

taking
claims

“commit
4

the

the

child

Appellee

out
was

intentional

of

the

directly
tort

of

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kidnapping,” which is “chargeable as a criminal offense under
Vermont

law,”

and

conspiring

“through

[a]

pattern

of

racketeering” to kidnap the child and to “assure her continued
detention” in Nicaragua in violation of the Racketeer Influence
and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). 2
49, 51.

J.A.

The Jenkins Complaint also asserts that Appellee was

vicariously liable for the role Hyden played in the kidnapping,
for its agents’ racketeering, and for its agents’ participation
in a conspiracy to violate Jenkins’s and the child’s “rights to
a parent-child relationship.”
In

particular,

the

Id. at 46, 49.
Jenkins

Complaint

charges

that

Miller retained the dean of Liberty University School of Law,
Mathew

Staver,

Lindevaldsen,

and
as

her

one

of

the

attorneys.

school’s
As

professors,

alleged,

Staver

Rena
and

Lindevaldsen encouraged and assisted Miller in violating state
court

2

orders,

established

social

media

forums

soliciting

Pursuant to 18 U.S.C. § 1962,
It shall be unlawful for any person employed
by or associated with any enterprise engaged
in, or the activities of which affect,
interstate or foreign commerce, to conduct
or participate, directly or indirectly, in
the conduct of such enterprise’s affairs
through
a
pattern
of
racketeering
activity . . . .

18 U.S.C. § 1962(c).
violate § 1962(c).

Section 1962(d) criminalizes conspiring to

5

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donations
contact”
other

to

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groups

between

that

Jenkins

co-conspirators

to

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aimed

and

to

her

kidnap

“prevent

daughter,
the

child.

court

and

ordered

planned

J.A.

42.

with
The

Jenkins Complaint further accuses Victoria Hyden, an employee of
the law school, of calling Miller’s father to help transport
Miller and the child to a parking lot in Lynchburg, Virginia,
where Philip Zodhiates -- who is Hyden’s father and was one of
Staver’s acquaintances -- picked them up and drove them to the
Canadian border.

Staver allegedly aided the kidnapping by using

telephone lines registered to Liberty University to speak to
Zodhiates as he drove back from the Canadian border.
“[w]ith

the

assistance

of . . . Philip

Zodhiates

Therefore,

and

Victoria

[Hyden] . . . as agents of . . . Liberty University . . . Miller
was able to leave the United States” with the child.

Id. at 46.

The Jenkins Complaint also alleges that Appellee and
its agents “enable[d] [Miller] to remain outside the country.”
J.A. 44.

For example, Lindevaldsen allegedly founded a Facebook

group to solicit donations for Miller while Miller was hiding
with the child in Nicaragua.

The Jenkins Complaint also asserts

that Hyden emailed “her co-workers at the law school requesting
donations for supplies to send to . . . Miller to enable her to
remain outside the country.”
further

alleges

that

Id. at 44.

Staver

and

The Jenkins Complaint

Lindevaldsen

“routinely

instructed their Law School students that the correct course of
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action

for

a

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person

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in . . . Miller’s

situation

would

engage in ‘civil disobedience’ and defy court orders.”
45.

As

such,

“Liberty

University

encouraged

its

be

to

Id. at

agents

to

disregard state laws governing parental rights . . . of same-sex
families.”

Id. at 45-46.
Based on these facts, the Jenkins Complaint alleges

that Appellee was directly liable for its involvement in the
kidnapping
because

scheme

agent[s’]

it

and,

“promoted,

tortious,

at

the

same

condoned

racketeering

and

time,

vicariously

explicitly

activity.”

liable

ratified

J.A.

46.

its
The

Jenkins Complaint sought damages for these injuries.
B.
The Policy
The policy at issue was effective from February 2009
to February 2010 and contains two coverage forms: (1) Commercial
General Liability coverage (“CGL”) and (2) School and Educators
Legal Liability coverage (“SELL”). 3

3

Technically, there are four insurance policies at issue.
But two of these are umbrella policies that the parties agree
have essentially the same terms as the CGL and the SELL.

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1.
CGL Coverage
The CGL itself provides two subsidiary coverage forms:
Coverage A and Coverage B.
a.
Coverage A
Under Coverage A, Appellant must defend suits seeking
damages for “bodily injury” and “property damage” arising from
an “occurrence.”
policy

defines

synonymous[ly]

J.A. 68.
the
[as]

terms

Consistent with Virginia law, the
“occurrence

refer[ing]

to

an

and

accident

incident

unexpected from the viewpoint of the insured.”

.

that

.

.
was

AES Corp. v.

Steadfast Ins. Co., 725 S.E.2d 532, 536 (Va. 2012) (internal
quotation marks omitted); J.A. 81.

According to the Supreme

Court of Virginia:
For coverage to be precluded under a CGL
policy because there was no occurrence, it
must be alleged that the result of an
insured’s intentional act was more than a
possibility; it must be alleged that the
insured subjectively intended or anticipated
the result of its intentional act or that
objectively, the result was a natural or
probable consequence of the intentional act.
. . . .
. . . Where the harmful consequences of an
act are alleged to have been not just
possible, but the natural and probable
consequences of an intentional act, choosing
to perform the act deliberately, even if in
ignorance of that fact, does not make the
resulting injury an ‘accident’ . . . .
8

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AES, 725 S.E.2d at 536, 538 (internal quotation marks omitted).
Accordingly, a suit alleging only intentional torts does not
state an “occurrence.”

See Travelers Indem. Co. v. Obenshain,

245

(Va.

S.E.2d

247,

249

1978).

Even

if

the

insured

demonstrates that the suit alleges “bodily injury” or “property
damage”
Injury

arising

from

Exclusion”

damage’
insured.”

an

“occurrence,”

excludes

expected

or

Coverage

“‘[b]odily

intended

from

A’s

“Expected

injury’

or

‘property

the

standpoint

suits

alleging

of

the

J.A. 69.
b.
Coverage B
Coverage

and

advertising

“[f]alse

arrest,

B

insures

injury,”

against

the

detention

or

definition

of

imprisonment.”

“personal

which

includes

J.A.

81.

The

policy defines “wrongful act” as:
any breach
insured:

of

duty . . . committed

by

an

a.

b.

Id. at 130.
any

In the lawful discharge of the
duties that are characteristic of,
distinctive or inherent to the
operation and functioning of an
educational institution; and
While acting within the course and
scope of their duties for the named
insured.

But Coverage B’s “Criminal Acts Exclusion” excludes

“‘[p]ersonal

and

advertising
9

injury’

arising

out

of

a

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criminal act committed by or at the direction of the insured.”
Id.

at

73.

And

Coverage

B’s

“Knowing

Violation

Exclusion”

excludes any “‘[p]ersonal and advertising injury’ caused by or
at the direction of the insured with the knowledge that the act
would violate the rights of another and would inflict ‘personal
and advertising injury’” (“Knowing Violation Exclusion”).

Id.

2.
SELL Coverage
Under

the

SELL,

Appellant

has

the

duty

to

defend

against any claim “[a]lleging injury arising out of a wrongful
act . . . and seeking loss because of such injury.”
(internal quotation marks omitted).
“Intentional

and

Criminal

Acts

The SELL policy contains an
Exclusion,”

which

coverage for:
[a]ny
“claim”
arising
out
of
any
intentional,
dishonest,
fraudulent,
criminal, or malicious act or omission or
any willful violation of law by the insured
. . . .
. . . .
This exclusion precludes coverage for
all
insured
persons
under
the
policy
regardless
whether
the
person
seeking
coverage participated in any way in the
intentional or criminal acts or omissions.
Id. at 116.

10

J.A. 116

excludes

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3.
Separation of Insureds
The insurance policy includes a Separation of Insureds
provision, which states:
Except
with
respect
to
the
Limits
of
Insurance,
and
any
rights
or
duties
specifically assigned in this Coverage part
to the first Named Insured, this insurance
applies:
a. As if each Named Insured were the
only Named Insured; and
b. Separately to each insured against
whom claim is made or “suit” is
brought.
J.A. 159.
When

multiple

named

insureds

claim

the

right

to

a

defense against the same suit, a separation of insureds clause
requires the insurer to evaluate the claims against each named
insured individually.

The insurer treats each insured as if he

or she has separate insurance coverage, so that excluded conduct
by

one

insureds.

insured

does

not

preclude

claims

brought

by

other

See W. Am. Ins. Co. v. AV&S, 145 F.3d 1224, 1227-29

(10th Cir. 1998); see, e.g., Commercial Standard Ins. Co. v. Am.
Gen. Ins. Co., 455 S.W.2d 714, 721 (Tex. 1970) (construing a
severability

of

interests

clause,

which

“refer[s]

to

each

insured as a separate and distinct individual apart from any and
every other person who may be entitled to coverage thereunder”

11

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(internal

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quotation

marks

Pg: 12 of 32

omitted)).

The

policy

designates

Appellee’s “employees,” “volunteer workers,” “student groups,”
and “executive officers” as additional named insureds.

J.A. 62,

75-76 (internal quotation marks omitted).
C.
Underlying Litigation
Faced with the Jenkins Complaint, Appellee turned to
Appellant, seeking to have Appellant defend the lawsuit on its
behalf.

When Appellant refused, Appellee filed a complaint in

district

court,

defense

and

an

requesting
award

of

a

declaration

damages

for

of

costs

its
and

right
fees

to

it

already incurred defending against the Jenkins Complaint.
parties filed cross-motions for summary judgment.

a

had
The

The district

court granted summary judgment in favor of Appellee, holding
Appellant had a duty to defend and awarding defense costs.
The district court began its analysis with the CGL.
Regarding

Coverage

A,

Complaint

did

allege

not

the

court
“bodily

determined
injury”

that

but

the

that

it

Jenkins
sought

damages for “property damage” allegedly caused by Appellee and
its agents.

It determined that, under Virginia law, Appellee

could

liable

become

for

physical

injury

to

the

plaintiffs’

tangible property because the Jenkins Complaint alleged that the
“[p]laintiffs suffered injury to their . . . property, including
. . . deprivation of personal property.”
12

J.A. 51; see Liberty

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Univ., Inc. v. Citizens Ins. Co. of Am., 16 F. Supp. 3d 636,
653-54 (W.D. Va. 2014).
The district court then turned to whether the alleged
“property damage” arose from an “occurrence,” as defined by the
policy.
for

It recognized that the “Jenkins Complaint made claims

only

intentional

torts”

and

that,

if

the

intent

of

Appellee’s agents was imputed to Appellee, Appellee “should have
reasonably anticipated or foreseen the incident of [the child]’s
abduction.”

Liberty, 16 F. Supp. 3d at 655, 659-60.

But the

district court nonetheless concluded that the Jenkins Complaint
alleges an “occurrence” for two reasons.
First,

the

district

court

opined

that,

although

no

Virginia court had interpreted a separation of insureds clause,
relevant case law forbade the court from imputing to Appellee
the intent of its agents -- even though the Jenkins Complaint
unequivocally

alleged

Appellee’s

superior for its agents’ acts.
655-60.

liability

in

respondeat

See Liberty, 16 F. Supp. 3d at

Noting that separation of insureds clauses generally

direct “courts [to] consider each insured separately under the
contract in determining whether provisions excluding the insured
from coverage apply to that particular insured,” the district
court believed the Separation of Insureds provision in this case
required

it

to

“separate

the

intent

[and

expectations]

Liberty’s agents and employees from Liberty’s own.”
13

of

Liberty, 16

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F.

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Supp.

3d

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at

659,

660

Pg: 14 of 32

(internal

quotation

marks

omitted).

Therefore, the district court reasoned that, although Appellee
was

allegedly

responsible

for

the

kidnapping

through

its

employee Hyden -- who was also a named insured -- Appellee could
not

become

liable

for

causing

damage

that

arose

from

an

“occurrence” because the Jenkins Complaint does not allege that
Appellee

individually

kidnapping.
even

if

expected

or

intended

the

alleged

The district court held in the alternative that,
the

Separation

of

Insureds

provision

did

not

unambiguously require it to separate the intent of Appellee’s
agents, the provision at least “create[d] an ambiguity in the
contract”

as

to

“whether

the

expectations

of

Liberty’s

agents . . . would be imputed to Liberty” -- an ambiguity that
“must [be] construe[d] in favor of . . . the insured.”

Id. at

659.
Second,
could

not

be

the
held

district
liable

court
for

concluded

damages

that

arising

Appellee
from

an

“occurrence” because the Jenkins Complaint did not “sufficiently
allege”
opined

Appellee’s
that,

vicarious

because

allegations

that

agents

employees”

and

allegations

of

tie

the

liability.

complaint

Liberty
and

vicarious

to

The

supplied

the

“only

actions

“provide[d]

no

liability,”

there

14

district

of

facts

court

conclusory

its

alleged

to

support

could

be

no

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“imputation

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of

[its]

Pg: 15 of 32

tortfeasor

employees’

expectations.”

Liberty, 16 F. Supp. 3d at 660-61.
Turning
determined

that

advertising

to
the

injury,”

CGL

Coverage

Jenkins
but,

B,

Complaint
based

on

the

district

alleged

court

“personal

essentially

the

and
same

reasoning for its decision that the complaint did not plead an
“occurrence” under Coverage A, the court concluded that neither
the Knowing Violation Exclusion nor the Criminal Acts Exclusion
applied.
The district court’s analysis of the SELL coverage was
similar.

That

is,

the

court

concluded

that

the

Jenkins

Complaint pled an injury arising from a “wrongful act,” because
its “factual allegations [supported an inference] that Liberty
was essentially negligent in urging civil disobedience of court
orders” without implicating the Intentional and Criminal Acts
Exclusion.

Liberty, 16 F. Supp. 3d at 672.
III.
A.
Virginia Insurance Law
Because our jurisdiction rests in diversity, we apply

the law of Virginia and its choice of law rules.

See Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Klaxon Co. v.
Stentor

Elec.

Mfg.

Co.,

313

U.S.

487,

496-97

(1941);

Res.

Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635
15

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(4th Cir. 2005).

Pg: 16 of 32

Virginia substantive insurance law applies to

policies that are delivered to insureds in Virginia.

See CACI

Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150,
154 (4th Cir. 2009); Res. Bankshares Corp., 407 F.3d at 635-36.
It is undisputed that the policy was delivered to Appellee, a
Virginia-based university.
that

If we are presented with an issue

Virginia’s highest court has not directly or indirectly

addressed, we must anticipate how it would rule.

See Ellis v.

Grant Thornton LLP, 530 F.3d 280, 287 (4th Cir. 2008).
Virginia applies the “Eight Corners Rule” to determine
if

an

insurer

insured.

has

a

duty

to

defend

a

lawsuit

against

the

See AES Corp. v. Steadfast Ins. Co., 725 S.E.2d 532,

535 (Va. 2012).

Under the Eight Corners Rule, we “compar[e] the

‘four

of

corners’

the

underlying

complaint

with

the

‘four

corners’ of the policy[] to determine whether the allegations in
the underlying complaint come within the coverage provided by
the policy.”

Id.

The insured has the initial burden to establish a duty
to defend, but this burden is not onerous because “[p]rinciples
of insurance law in Virginia . . . are solicitous of insureds.”
CACI, 566 F.3d at 155.
the

duty

to

The duty to defend is much broader than

indemnify

because,

“while . . . the

duty

to

indemnify relies on litigated facts,” id. at 154, the duty to
defend arises “whenever the [underlying] complaint alleges facts
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and circumstances, some of which would, if proved, fall within
the

risk

covered

by

the

policy,”

AES,

725

S.E.2d

at

535

(internal quotation marks omitted).
Indeed, when a complaint’s allegations could support
alternative

theories

of

liability

(e.g.,

claims

for

both

intentional torts and negligence) and one theory falls within
the coverage agreement, the insurer has a duty to defend the
insured against all claims.

Parker v. Hartford Fire Ins. Co.,

278 S.E.2d 803, 804 (Va. 1981) (holding that an exclusion for
intentional

injury

did

not

preclude

coverage,

even

though

complaint alleged intentional trespass, because under Virginia
law a claim for intentional trespass could also “support[] a
judgment of unintentional trespass” without amendment (internal
quotation marks omitted)). 4

“On the other hand, if it appears

clearly that the insurer would not be liable under its contract
for any judgment based upon the allegations, it has no duty even
to defend.”

AES, 725 S.E.2d at 536-38; see, e.g., Premier Pet

Prods., LLC v. Travelers Prop. Cas. Co. of Am., 678 F. Supp. 2d
409, 418-19 (E.D. Va. 2010).

4

See also Minn. Lawyers Mut. Ins. Co. v. Antonelli, Terry,
Stout & Kraus, LLP, 472 F. App’x 219, 225 (4th Cir. 2012)
(unpublished) (noting that Parker v. Hartford Fire Insurance Co.
does not hold that a duty to defend lies when a complaint would
support “any conceivable cause of action” and still requires
“that the complaint actually asserts the claim” (emphasis
omitted)).

17

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If the insured demonstrates that the complaint alleges
a covered injury, the burden shifts to the insurer to show that
the

policy’s

“exclusionary

language . . . clearly

and

unambiguously bring[s] the particular [alleged] act or omission
within its scope.”

Floyd v. N. Neck Ins. Co., 427 S.E.2d 193,

196 (Va. 1993); see also Fuisz v. Selective Ins. Co. of Am., 61
F.3d 238, 244-45 (4th Cir. 1995).
insurance

policy

are

However, ambiguities in an

construed

against

the

insurer,

who

presumably drafted the contract and “could have written it more
clearly.”

CACI, 566 F.3d at 155.
B.
Analysis
We

conclude

that

the

district

court

erroneously

interpreted the Jenkins Complaint, the Separation of Insureds
provision, and Virginia law.
1.
CGL Coverage A
a.
“Occurrence” and Respondeat Superior Liability
As
Complaint,
intentional

to
which

CGL

Coverage

only

conduct,

A,

alleges
does

not

we

hold

that

Appellee’s
plead

an

the

liability

for

“occurrence,”

notwithstanding the Separation of Insureds provision.

18

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In

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the

Pg: 19 of 32

first

we

place,

conclude

that

Virginia’s

highest court would hold that an allegation of a principal’s
liability

under

the

theory

of

respondeat

superior

for

intentional acts of an agent does not state an “occurrence.”

the
In

Rockingham Mutual Insurance Co. v. Davis, an employee sued her
employer claiming it was vicariously liable for the intentional
tort of another employee.

See 58 Va. Cir. 466, 467 (2002).

The

employer’s insurer sought a declaration that it had no duty to
defend

because

“occurrence.”
agreed,

the

underlying

complaint

did

not

state

an

The Circuit Court of Rockingham County, Virginia

concluding

that

an

intentional

tort

“cannot

be

considered unexpected, even when viewed from the standpoint of
the employer, and does not become an ‘occurrence’ . . . simply
by operation of respondeat superior.”
supplied).

Id. at 473-74 (emphasis

This is because Virginia holds that an agent’s state

of mind is ordinarily imputed to the principal.

See Fulwiler v.

Peters, 20 S.E.2d 500, 503 (Va. 1942) (“The general rule is that
knowledge of the agent is imputed to the principal . . . .”);
Atl. Envtl. Constr. Co. v. Malveaux, 762 S.E.2d 409, 412 (Va.
Ct. App. 2014); Magco of Md., Inc. v. Barr, 531 S.E.2d 614, 617
(Va. Ct. App. 2000) (“Indeed, it is a longstanding principle in
the Commonwealth that a foreman’s knowledge of facts or events
on a worksite is imputed to his employer.”); Rockingham, 58 Va.

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Cir. at 473 (“The doctrine of respondeat superior attributes the
bad intentions of the employee to the employer . . . .”). 5
Federal

district

courts

sitting

in

Virginia

--

including the district court below -- have also applied this
rule.

See, e.g., Liberty Univ., Inc. v. Citizens Ins. Co. of

Am., 16 F. Supp. 3d 636, 656 (W.D. Va. 2014) (“[A]n insurance
company would have no duty to defend an employer for claims
based on the intentional torts of its employees.”); State Farm
Fire & Cas. Co. v. Frank, No. 4:10-cv-99, 2011 WL 1883987, at
*10 (E.D. Va. Apr. 20, 2011); Am. & Foreign Ins. Co. v. Church
Sch. in Diocese of Va., 645 F. Supp. 628, 633 (E.D. Va. 1986)
(concluding

that

allegations

of

intentional

torts

under

an

respondeat
“are

not

occurrence-based
superior
covered

insurance

liability
and

impose

for
no

policy,
agents’
duty

to

defend”).
Therefore, in this case the pivotal issue is whether
the Separation of Insureds provision alters Virginia’s rule that
the expectations and bad intentions of Appellee’s agents are

5

Likewise, in an unpublished disposition we observed that
under Virginia law “claims of agency liability [and] respondeat
superior . . . for the intentional acts of an agent do not
impose a duty to defend,” even if viewed from the perspective of
the insured. Nat’l Fruit Prod. Co. v. Fireman’s Fund Ins. Co.,
No. 98-1471, 1999 WL 270033, at *3 (4th Cir. May 4, 1999)
(unpublished).

20

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imputed to Appellee.

Pg: 21 of 32

The district court concluded the provision

alters Virginia’s rule.

We disagree.

Although the Separation of Insureds provision requires
the

coverage

“[s]eparately

claims
to

of

each

each

named

insured

insured

against

whom

to

be

claim

evaluated

is

made

or

‘suit’ is brought,” J.A. 159, it does not displace Virginia’s
rule

that

an

agent’s

intentionally

tortious

act

cannot

be

“unexpected” by the principal who is vicariously liable for the
act.

See State Farm, 2011 WL 1883987, at *10; Church Sch., 645

F. Supp. at 633; Rockingham, 58 Va. Cir. at 467.

Because she

was either an “employee” or a “volunteer worker” under the terms
of the policy, Hyden would qualify as a named insured.

J.A. 76.

The Jenkins Complaint names Hyden as a defendant, so we must
analyze Appellee’s coverage claim separately. 6

But even if we

imagine that Appellee was the only party sued in this case and
the

only

insured

requesting

a

defense

under

the

policy,

the

Jenkins Complaint still frames Appellee’s liability in terms of
respondeat

superior.

anticipate

that

Therefore,

Virginia

courts

we
would

have

ample

impute

the

reason

to

intent

of

Appellee’s agents accordingly.

6

Although Staver and Lindevaldsen are named insureds, the
Jenkins Complaint does not name them as defendants.

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Our decision in IFCO Systems of North America, Inc. v.
American Home Assurance Co., 502 F. App’x 342 (4th Cir. 2013)
(unpublished), and other cases cited by the district court, are
inapposite.

The district court below viewed the issue in IFCO

Systems as “whether an insurance company had a duty to defend an
employer

for

intentional

tort

claims

Liberty, 16 F. Supp. 3d at 659.
because,
claims

in

IFCO

against

supervision

and

Systems,
the

the

and

its

employees.”

This is an incorrect view

underlying

insured

hiring

against

for,

complaint

asserted

alia,

negligent

inter

conversion

under

a

theory

of

vicarious liability -- all arising from thefts committed by the
insured’s employees.
policy

provided

See IFCO, 502 F. App’x at 343-44.

occurrence-based

separation of insureds provision.

coverage

and

The

contained

a

Analyzing whether there was a

duty to defend, we distinguished allegations of a principal’s
vicarious liability for its agent’s intentional torts -- which
would not constitute an “occurrence,” despite the separation of
insureds provision -- from assertions that the principal was
liable

for

the

agent’s

failure to supervise.

intentional

act

due

to

its

negligent

See id. at 345, 347 (observing that “none

of the . . . cases cited by the district court [were] directly
on point” because “none of the cases involved a situation where
the

court

intentional

was

asked

conduct

to

could

determine
be

treated
22

whether
as

an

an

employee’s

‘accident’

in

a

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subsequent negligence action against the employer” (emphasis in
original)).

Because

negligent

hiring

or

supervision

actions

depend on whether the alleged harm was reasonably foreseeable,
we

concluded

the

separation

of

insureds

clause

may

have

“require[d] us to approach the question of coverage solely from
IFCO’s perspective.”

Id. at 347.

Therefore, we certified the

question of whether, “[i]n a negligent hiring and supervision
action

against

an

insured-employer, . . . the

intentional

conduct of an employee of the insured constitute[d] a covered
‘occurrence.’”

Id. at 343.

Notably, we did not certify a

similar question regarding the complaint’s allegation that the
insured was vicariously liable for its employees’ conversion.
When a complaint alleges the liability of a principal
for

the

intentional

supervision

theory,

acts
a

of

an

separation

implicate the duty to defend.
this result may occur.
not

particularly

agent
of

under

insureds

a

negligent

clause

may

There are several reasons why

First, a negligent supervision action is

concerned

with

the

agent’s

intent

or

expectations -- the claim is predicated on whether the harm was
foreseeable.

See Interim Pers. of Cent. Va., Inc. v. Messer,

559 S.E.2d 704, 707 (Va. 2002).

Second, because a negligent

supervision claim alleges the principal’s direct liability, a
separation of insureds clause may require the court to look at
whether the harm was foreseeable solely from the principal’s
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perspective.

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See

IFCO,

502

F.

Pg: 24 of 32

App’x

at

347.

And,

in

the

context of an occurrence-based policy, Virginia’s potentiality
rule holds that insurers must defend an entire suit if any of
the complaint’s allegations could support a judgment that the
principal

did

not

expect,

intend,

or

foresee

the

agent’s

intentional tort. See Travelers Indem. Co. v. Obenshain, 245
S.E.2d 247, 249 (Va. 1978) (“If the allegations state a case
which may be covered by the policy, Travelers has a duty to
defend . . . .”).
The cases the district court cited merely demonstrate
these propositions.

See Pac. Ins. Co. v. Catholic Bishop of

Spokane, 450 F. Supp. 2d 1186, 1202 (E.D. Wash. 2006) (rejecting
insurer’s

argument

that

the

alleged

sexual

abuse

was

not

a

covered “accident” because insurer “disregard[ed] the fact that
the

claims

against

the

diocese

[were]

based

upon

alleged

negligent hiring, supervision, and retention, not an intentional
wrong of direct sexual abuse”); King, 85 S.W.3d at 185, 188-92
(finding duty to defend because insured was sued for intentional
torts under a theory of respondeat superior and for negligence
and the policy contained a separation of insureds provision and
because the “employer’s alleged negligent hiring, training, and
supervision constitute[d] an ‘occurrence’ under the terms of the
insurance policy although the injury was directly caused by the
employee’s

intentional

conduct’”);
24

Unigard

Mut.

Ins.

Co.

v.

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Argonaut Ins. Co., 579 P.2d 1015, 1018 (Wash. Ct. App. 1978)
(separating claims against a child for his intentional act of
burning

a

school,

which

precluded

the

duty

to

defend,

from

claims against the child’s parents for negligent supervision,
which was not an excluded intentional act).
Critically,

unlike

the

underlying

complaints

considered in the cases cited by the district court, the Jenkins
Complaint does not allege that Appellee was responsible for its
agents’ intentional acts because it was negligent.

Rather, the

Jenkins Complaint alleges that Appellee is directly liable for
harm arising from its intentional participation in conspiracies
and vicariously liable for the intentional acts of its agents.
For

these

reasons,

the

Separation

of

Insureds

provision

unambiguously would not displace the ordinary rule in Virginia
that

a

complaint

alleging

a

principal’s

liability

solely

in

respondeat superior for the acts of its agent does not state an
“occurrence.”
Furthermore,
provision

was

even

ambiguous,

the

if

the

Separation

district

court’s

of

interpretation

contradicts the clearly-stated intent of the parties.
Virginia

law,

courts

must

interpret

consistent with the parties’ intent.

Insureds

insurance

Under
policies

See Transit Cas. Co. v.

Hartman’s, Inc., 239 S.E.2d 894, 897 (Va. 1978); see also Safeco
Ins. Co. of Am. v. Merrimack Mut. Fire Ins. Co., 785 F.2d 480,
25

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482 (4th Cir. 1986).

Pg: 26 of 32

Ambiguities in the instrument must be

construed in favor of the insured.
absurd

result

undertaken

--

one

originally

that
by

But we do not entertain an

would

the

windfall to [the insured].”

“enlarge

insurer,

and

the

obligations

would

permit

a

Transit Cas. Co., 239 S.E.2d at

897.
While Virginia law provides that an agent’s intent is
imputed to the principal for the purpose of determining whether
an

injury

was

an

“occurrence”

(i.e.,

expected

from

the

principal’s perspective) the district court would impose a duty
to defend even though the policy clearly states that any harm
that

was

“expected

or

intended

from

insured” is excluded from coverage.
Mut.

Ins.

Co.

v.

Norgard,

518

the

standpoint

of

the

J.A. 69; see also Nw. G.F.

N.W.2d

179,

184

(N.D.

1994)

(stating that “the purpose of severability clauses is to spread
protection,

to

the

the . . . insureds.

limits

of

coverage,

among

all

of

The purpose is not to negate bargained-for

exclusions which are plainly worded” (alteration in original)
(internal quotation marks omitted)).
The

district

court’s

interpretation

Appellant’s obligation beyond what it anticipated.

enlarges
And because

Virginia recognizes that a corporation, like Appellee, “can act
only

through

its

officers

and

agents,”

Pulliam

v.

Coastal

Emergency Servs. of Richmond, Inc., 509 S.E.2d 307, 320 (Va.
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1999), the district court’s construction of the Separation of
Insureds provision would nullify the Expected Injury Exclusion
for allegations of vicarious liability against organizational or
corporate

insureds,

creating

a

windfall

to

Appellee.

Cf.

Minkler v. Safeco Ins. Co. of Am., 232 P.3d 612, 621 (Cal. 2010)
(holding that to permit a severability of insurance clause to
prevail over a plainly worded exclusion for intentional acts
“would effectively nullify a policy exclusion in the case of
married

coinsureds,

since

one

coinsured

spouse

could

always

demand coverage for the excluded tortious act of the other on
the mere basis of derivative community property liability”).
For the foregoing reasons, we conclude the Separation
of Insureds provision does not displace Virginia’s rule that an
insurer

has

no

duty

to

defend

against

a

suit

alleging

the

insured is liable for the intentional acts of its agents under a
theory of respondeat superior.

Because the Jenkins Complaint

alleges only intentional acts, we hold that it does not allege
Appellee’s liability for damage arising from an “occurrence.”
b.
“Sufficient” Allegations of Respondeat Superior
We now turn to the district court’s alternative basis
for

holding

that

“occurrence.”
court

reasoned

In

the
this

that,

Jenkins
section
even

if
27

Complaint
of

its

the

does

opinion,

Separation

not

state

an

the

district

of

Insureds

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provision did not preclude ascribing to Appellee its agents’
expectations, the Jenkins Complaint “did not state a plausible
claim that Liberty is liable for intentional torts,” offered
“only conclusory allegations that tie Liberty to the actions of
its alleged agents and employees,” and “provide[d] no facts to
support allegations of vicarious liability.”
Supp. 3d

at

660,

661,

663.

Liberty, 16 F.

Significantly,

when

determining

whether insurance coverage exists, Virginia courts do not ask if
a complaint “sufficiently” alleges facts in support of a claim
such that it would survive a motion to dismiss.

Instead, they

determine whether the complaint alleges facts and circumstances
that fall within the four corners of the policy.
probability of success is inconsequential.

The claim’s

See Fuisz, 61 F.3d

at 244-45; Church Sch., 645 F. Supp. at 633; AES, 725 S.E.2d at
535 (“[I]t is a well-established principle, consistently applied
in this Commonwealth, that only the allegations in the complaint
and the provisions of the insurance policy are to be considered
in deciding whether there is a duty on the part of the insurer
to defend and indemnify the insured.”); cf. CACI Int’l, Inc. v.
St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 155-56 (4th Cir.
2009)

(acknowledging

differences

between

analysis and a duty-to-defend analysis).
clearly

alleges

facts

and

Rule

12(b)(6)

The Jenkins Complaint

circumstances

28

a

demonstrating

that

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Appellee is liable in respondeat superior for kidnapping and
racketeering through its agent Hyden.
Therefore, we conclude Appellant has no duty to defend
Appellee under CGL Coverage A.
2.
CGL Coverage B
We
pursuant

also

to

CGL

Complaint

alleged

hold

that

Coverage

Appellant
B

“personal

because,
and

has

no

duty

assuming

advertising

to

the

defend
Jenkins

injury,”

the

Criminal Acts Exclusion clearly applies.
The

district

court

concluded

that

CGL

Coverage

B’s

exclusion for criminal acts did not apply because the Jenkins
Complaint’s

“allegations

insufficiently

tie

criminal acts either directly or vicariously.”
Supp. 2d at 669.

Liberty

to

any

Liberty, 16 F.

But the Criminal Acts Exclusion applies to

injuries “arising out of a criminal act committed by or at the
direction of the insured.”

J.A. 73.

In the context of homeowner’s insurance, the Circuit
Court of Warren County, Virginia has observed that an injury
arises out of an event “when there is apparent to the rational
mind upon consideration of all of the circumstances, a causal
connection between” the event and the injury.

Erie Ins. Exch.

v. Young, 69 Va. Cir. 34, 41 (2005) (internal quotation marks
omitted).

Notably, The Supreme Court of Virginia has quoted
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this definition of “arising out of” “many times with approval”
Lucas v. Lucas, 186 S.E.2d 63, 64 (Va. 1972) (internal quotation
marks omitted).

Against this backdrop, we conclude that the

criminal acts exclusion applies for two reasons.
Jenkins

Complaint

Appellee

and

its

clearly
agents

and

unambiguously

committed

criminal

First, the
alleges

acts

–

that

namely,

kidnapping and conspiracy to commit racketeering, which is a
federal

crime

Complaint
crimes.
used

pursuant

also

to

specifically

18

U.S.C.

alleges

§ 1962(d).
Appellee’s

The
role

Jenkins

in

these

For example, the Jenkins Complaint contends that Staver

Liberty

University’s

phone

lines

to

speak

with

Philip

Zodhiates after Zodhiates deposited Miller and the child near
the Canadian border and that other Liberty University employees
assisted Miller while she was in Nicaragua.
Complaint

unambiguously

claims

that

Second, the Jenkins

Appellee

injuries arising from those criminal acts.

is

liable

for

With respect to the

kidnapping claim, the Jenkins Complaint asserts that Jenkins and
the child suffered injuries as a result of the kidnapping.
52.

The Jenkins Complaint also alleges injuries as a “direct

and proximate result of Defendants’ [RICO] violation.”
51.

J.A.

These

statements

allege

a

causal

connection

Id. at
between

Appellee’s alleged criminal acts and the claimed injuries.
Therefore, Appellant has no duty to defend pursuant to
CGL Coverage B.
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3.
SELL Coverage
The district court concluded that the SELL’s Intentional and
Criminal

Acts

Complaint

Exclusion

did

insufficiently

not

apply

implicated

because

Liberty

“the

Jenkins

in . . . excluded

conduct because it insufficiently alleged direct or vicarious
liability and facts to support those links.”

Liberty, 16 F.

Supp. 3d at 673.

However, the Intentional and Criminal Acts

Exclusion

claims

embraces

“arising

out

of

any

intentional,

dishonest, fraudulent, criminal, or malicious act or omission or
any

willful

violation

of

law

by

the

insured”

and

“precludes

coverage for all insured persons under the policy regardless
whether the person seeking coverage participated in any way in
the intentional or criminal acts or omissions.”
we

have

emphasized,

the

Jenkins

Complaint

J.A. 116.

alleges

As

Appellee’s

liability for injuries arising from its direct involvement in
conspiracies to commit kidnapping and racketeering, which carry
criminal

penalties.

unambiguously

trigger

We

conclude

the

these

Intentional

claims
and

clearly

Criminal

and
Acts

Exclusion. 7

7

Appellee argues that the Criminal Acts Exclusion and the
definition of “personal and advertising injury” are in conflict,
which is impermissible under Virginia law because an insurer
cannot “‘give coverage with the right hand and then take away
with the left.’”
Appellee’s Resp. Br. 40 (alteration omitted)
(Continued)
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IV.
For the foregoing reasons, we hold that Appellant had
no duty to defend Appellee against the Jenkins Complaint.
therefore

reverse

the

district

court’s

grant

of

We

summary

judgment, vacate its award of fees and costs, and remand for
further proceedings.
VACATED AND REMANDED

(quoting Fuisz, 61 F.3d at 243). Appellee’s argument relies on
the definition a “personal and advertising injury” as one
arising out of seven enumerated “offenses.” J.A. 81 (emphasis
supplied). Appellee equates “offenses” with “crimes.” But that
reading of “offense” is not supported by the policy.
The
examples of “offenses” it provides are noncriminal acts -- torts
and copyright offenses.
Therefore, read together, there is no
conflict between the policy’s definition of “personal and
advertising injury” and the Criminal Acts Exclusion.

32