Encompass Home & Auto Insurance Company v. Edwards et al

Filing 50

Order on Defendants Motion for Judgment on the Pleadings and Plaintiffs Motion for Summary Judgment. ORDER granting 37 Motion for Summary Judgment; denying 39 Motion for Judgment on the Pleadings. Closing Case. Signed by Judge Robert N. Scol a, Jr on 8/14/2017. (kpe) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Encompass Home & Auto Insurance
Company, Plaintiff
v.
Jodee C. Edwards, and others,
Defendants.

)
)
)
)
)
)
)

Civil Action No. 16-23151-Civ-Scola

Order on Defendant’s Motion for Judgment on the Pleadings and
Plaintiff’s Motion for Summary Judgment
Plaintiff Encompass Home & Auto Insurance Company (“Encompass”)
seeks a declaratory judgment that an insurance policy issued to Defendant
Jodee Edwards does not obligate Encompass to defend or indemnify her in a
personal injury lawsuit brought by Defendant H.E.S., a minor, by and through
her parents, natural guardians and next friends Randy and Linda Skjsersven
(“H.E.S.”). This matter is before the Court on Defendant H.E.S.’s Motion for
Judgment on the Pleadings (ECF No. 39) and the Plaintiff’s Motion for Final
Summary Judgment (ECF No. 37). For the reasons set forth below, the Court
denies the Motion for Judgment on the Pleadings (ECF No. 39) and grants the
Motion for Final Summary Judgment (ECF No. 37).
1. Background
In January 2015, H.E.S. was a passenger aboard the M/S Pride, a
Carnival Corporation cruise ship. (Am. Compl. in No. 16-20331 ¶ 14, ECF No.
33.) During the cruise, H.E.S.’s mother enrolled her in program for teenagers
called Club O2. (Id. ¶ 25.) Two other participants in the program were minors
E.H. and K.M.A. (See id. ¶ 33.) On the night of January 31, 2015, H.E.S.
attended an event at Club O2. (Id.) E.H. and K.M.A convinced H.E.S. to
accompany them to the stateroom that E.H. shared with his older brother. (Id.
¶ 36.) The teenagers then consumed alcohol that E.H.’s older brother had
supplied to E.H. (Id. ¶ 37.) H.E.S. alleges that while she was intoxicated and
unable to provide consent, E.H. and K.M.A sexually assaulted her. (Id. ¶¶ 3739.)
On January 28, 2016, H.E.S., through her parents, brought suit against
Edwards, as E.H.’s mother, and Carnival Corporation (hereinafter, the
“Personal Injury Suit”). See H.S., a minor, by and through her Parents, natural
guardians and next friends, R.S. and L.S. v. Carnival Corp., et al., No. 16–20331

(King, J.). H.E.S. asserts one cause of action against Edwards for her negligent
supervision of E.H. (Am. Compl. in Case No. 16-20331 ¶¶ 72-84, ECF No. 33.)
Edwards has a home and auto insurance policy through Encompass. (Pl.’s
Statement of Facts ¶ 4, ECF No. 38.) Relying on a provision in the policy that
excludes bodily injury or property damage “[a]rising out of sexual molestation,
corporal punishment, or physical or mental abuse” from coverage, Encompass
seeks a declaratory judgment that the policy does not cover losses or damages
arising from H.E.S.’s injuries, and that it is not obligated to defend Edwards in
the Personal Injury Suit. (Mot. for Summ. J. at 6-8.)
2. Legal Standard
A. Judgment on the Pleadings
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings
are closed—but early enough not to delay trial—a party may move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper
when no issues of material fact exist, and the moving party is entitled to
judgment as a matter of law based on the substance of the pleadings and any
judicially noticed facts.” Cunningham v. Dist. Attorney’s Office, 592 F.3d 1237,
1255 (11th Cir. 2010). A court ruling on a 12(c) motion must “accept all the
facts in the complaint as true and view them in the light most favorable to the
nonmoving party.” Id.
B. Summary Judgment
Under Federal Rule of Civil Procedure 56, “summary judgment is
appropriate where there ‘is no genuine issue as to any material fact’ and the
moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. N.
Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). At the
summary judgment stage, the Court must view the evidence in the light most
favorable to the nonmovant, see Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970), and it may not weigh conflicting evidence to resolve disputed
factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.
2007). Yet, the existence of some factual disputes between litigants will not
defeat an otherwise properly grounded summary judgment motion; “the
requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the record as a whole
could not lead a rational trier of fact to find in the nonmovant’s favor, there is
no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
“[O]nce the moving party has met its burden of showing a basis for the
motion, the nonmoving party is required to ‘go beyond the pleadings’ and

present competent evidence designating ‘specific facts showing that there is a
genuine issue for trial.’” United States v. $183,791.00, 391 F. App’x 791, 794
(11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Thus, the nonmoving party “may not rest upon the mere allegations or denials
of his pleadings, but [instead] must set forth specific facts showing that there is
a genuine issue for trial.” See Anderson, 477 U.S. at 248 (citation omitted).
“Likewise, a [nonmovant] cannot defeat summary judgment by relying upon
conclusory assertions.” Maddox-Jones v. Bd. of Regents of Univ. of Ga., 2011
WL 5903518, at *2 (11th Cir. Nov. 22, 2011). Mere “metaphysical doubt as to
the material facts” will not suffice. Matsushita, 475 U.S. at 586.
3. Analysis
The parties agree that Ohio law controls. (See H.E.S.’s Mot. for J. on the
Pleadings at 2; Encompass’s Mot. for Summ. J. at 5-7; Edwards’s Resp. in
Opp. at 4, ECF No. 43.) Encompass and H.E.S.’s motions both concern the
proper interpretation of the exclusion in Edwards’s insurance policy for bodily
injury arising out of sexual molestation. In her Motion for Judgment on the
Pleadings, H.E.S. argues that Ohio courts have narrowly interpreted the phrase
“arising out of” in insurance policies, and the negligent supervision claim
asserted against Edwards does not “arise out of” sexual molestation because
there is no allegation that Edwards herself molested H.E.S. (Mot. for J. on the
Pleadings at 4-12.) In its Motion for Final Summary Judgment, Encompass
argues that Ohio courts have interpreted nearly identical exclusions to
encompass negligence claims brought against the parents of minors who
commit sexual molestation. (Mot. for Summ. J. at 13-19.)
Under Ohio law, when the facts alleged in a complaint “arguably or
potentially fall within the scope” of coverage of an insurance policy, an insurer
must defend the insured in the lawsuit. Sherwin-Williams Co. v. Certain
Underwriters at Lloyd’s London, 813 F.Supp. 576, 582 (N.D. Ohio 1993)
(citations omitted). This is known as the “scope of the allegations” test. Id. Any
doubts regarding coverage must be resolved in favor of the insured. Id. at 583
(citations omitted). However, “[i]f none of the claims asserted in a complaint
against the insured are arguably or potentially within the scope of the insurer’s
policy, then the insurer obviously has no duty to defend.” Id. (citing Wedge
Prod.’s, Inc. v. Hartford Equity Sales Co., 509 N.E.2d 74 (Ohio 1987)); see also
Gearing v. Nationwide Ins. Co., 665 N.E.2d 1115, 1120 (Ohio 1996) (citations
omitted) (“An insurer has no duty to defend where the acts alleged of an
insured fall outside the scope of policy coverage.”).
In order to determine whether claims in a complaint arguably or
potentially fall within the scope of coverage, a court must compare the
language of the insurance policy, including any exclusionary language, with

the claims asserted in the complaint. Sherwin-Williams Co., 813 F.Supp. at
582. Exclusionary language must be read strictly, and any ambiguity in the
policy must be construed in favor of the insured. Id. (citing Am. Fin. Corp. v.
Fireman’s Fund Ins. Co., 239 N.E.2d 33, 35 (Ohio 1968)). In order for an
insurer to defeat coverage, it must demonstrate that the clause on which it
relies “‘is capable of the construction it seeks to give it, and that such
construction is the only one that can be fairly placed upon the language.’”
Crow v. Dooley, 2012-Ohio-2565, 2012 WL 2090078, at *3 (Ohio Ct. App. June
11, 2012) (quoting Bosserman Aviation Equip. v. U.S. Liab. Ins. Co., 2009-Ohio2526, 915 N.E.2d 687 (Ohio Ct. App. 2009)). An insurance policy is a contract,
and the terms “are to be given their plain and ordinary meaning.” Crow, 2012
WL 2090078, at *2 (citations omitted). “When confronted with an issue of
contractual interpretation, the court must examine the contract as a whole,
presume the parties’ intent is reflected in the contract language, and give effect
to that intent.” Doe v. Sherwin, 2015-Ohio-2451, 2015 WL 3824019, at *2
(Ohio Ct. App. June 22, 2015) (citing Currier v. Penn-Ohio Logistics, 2010-Ohio195, 927 N.E.2d 604 (Ohio Ct. App. 2011)). If a contract is clear and
unambiguous, a court does not need to look any further than the four corners
of the insurance policy to determine the intent of the parties. Crow, 2012 WL
2090078, at *2 (citations omitted).
The Court will first determine the proper interpretation of the
exclusionary language on which Encompass relies, and will then analyze the
allegations against Edwards to determine whether they fall within the scope of
the exclusion.
A. Interpretation of the Exclusionary Language
Encompass relies on an exclusion in Edwards’s insurance policy for
bodily injury or property damage “[a]rising out of sexual molestation, corporal
punishment, or physical or mental abuse.” (Mot. for Summ. J. at 2.) In World
Harvest Church v. Grange Mut. Cas. Co., 2016-Ohio-2913, 68 N.E.3d 738 (Ohio
2016), the Supreme Court of Ohio interpreted a similar provision in an
insurance policy. There, the parents of a minor who was physically abused at a
church daycare sued the employee who inflicted the abuse as well as the
church. Id. at 739. The parents asserted claims of negligent hiring, negligent
supervision, and respondeat superior against the church. Id. The church’s
insurance policy excluded coverage for bodily injury or property damage
“arising out of the actual or threatened abuse or molestation by anyone of any
person while in the care, custody or control of any insured,” as well as damage
arising out of the negligent employment and supervision of a person for whom
an insured is legally responsible. Id. at 742. Therefore, the claims for negligent
hiring and supervision were expressly excluded from coverage. See id. at 745.

With respect to the respondeat superior claim, the court analyzed the provision
excluding coverage for injuries arising out of actual or threatened abuse,
holding:
We find that the abuse exclusion simply does not limit the
exclusion to claims for bodily injury arising from direct liability,
while failing to exclude claims for bodily injury arising from
secondary, or vicarious, liability for the same conduct. Indeed, the
language in the exclusion is simple and unambiguous: there is no
coverage for any injury arising from abuse or molestation. To hold
otherwise, we would have to insert language into the exclusion.
Id. (emphasis in original). Accordingly, the court held that the respondeat
superior claim was excluded from coverage.
H.E.S. argues that World Harvest Church is distinguishable because the
policy at issue specifically excluded claims for negligent supervision. (Mot. for
J. on the Pleadings at 10.) While this is true, the court’s analysis of whether
the respondeat superior claim was excluded from coverage under the abuse
exclusion is instructive as to the proper interpretation of the phrase “arising
out of” in exclusionary provisions. The Court sees no reason why the same
interpretation would not apply here; that is, that the sexual molestation
exclusion is properly interpreted to mean that there is no coverage for any
injury arising from sexual molestation, whether the claim asserts direct liability
for the sexual molestation or not.
In addition to World Harvest Church, Encompass cites to four decisions
from the Ohio Courts of Appeals interpreting provisions with nearly identical
language as the exclusion in Edwards’s policy to exclude claims of negligence
and/or negligent supervision asserted against the parents of minors who
committed sexual assault. See Doe v. Sherwin, 2015-Ohio-2451, 2015 WL
3824019 (Ohio Ct. App. June 22, 2015) (holding that negligence claims
asserted against parents of a minor who committed sexual assault were
excluded from coverage in nearly identical policy provision); Crow, 2012 WL
2090078 (same); Westfield Ins. Co. v. Porchervina, 2008-Ohio-6558, 2008 WL
5205662 (Ohio Ct. App. Dec. 12, 2008) (same); United Ohio Ins. Co. v. Myers,
2002-Ohio-6596, 2002 WL 31716117 (Ohio Ct. App. Dec. 4, 2002) (holding
that negligence claims asserted against grandparent of minor who sexually
molested other minors were excluded from coverage under homeowners’
policy).
For example, in Crow v. Dooley, the Ohio Court of Appeals interpreted an
exclusion in an insurance policy for “‘[b]odily injury’ or ‘property damage’
arising out of sexual molestation, corporal punishment or physical abuse,”
which is nearly identical to the exclusion at issue here. Id. at *3. The insured

sought coverage for a lawsuit that alleged that she negligently supervised her
son, who sexually assaulted and molested a minor. Id. at *1. The court held
that the negligence claims were excluded from coverage under the
“unambiguous language of the Sexual Molestation provision.” Id. at *4. Citing
to a Supreme Court of Ohio opinion, the court noted that the phrase “‘[a]rising
out of’ connotes the need for a direct consequence or a responsible condition.”
Id. (citing Westfield Ins. Co. v. Hunter, 2011-Ohio-1818, 948 N.E.2d 931 (Ohio
2011)) (additional citations omitted). The court reasoned that because the
insured’s alleged negligence “caused or contributed to and was a responsible
condition” for the injury to the minor, the alleged negligence arose out of the
sexual molestation. Id. The court looked at the fact that each cause of action
asserted against the insured alleged damages as a result of the insured’s
conduct, noting in particular that the complaint “fails to allege any bodily
injury due solely to [the insured’s] negligence, but rather, predicates the
damages on the conduct of [the insured] in conjunction with [her son’s]
conduct.” Id.
H.E.S. argues that Crow is distinguishable from this case because the
exclusion at issue in Crow “did not contain language referring to the mental
state of the perpatrator [sic],” whereas here, the policy distinguishes “liability
for an intentional tort from liability for negligence contributing to the
intentional tort.” (Mot. for J. on the Pleadings at 11.) H.E.S. presumably refers
to an exclusion in Edwards’s policy for bodily injury or property damage
“intended by, or which may reasonably be expected to result from, the
intentional or criminal acts or omissions of one or more covered persons,” but
that is not the exclusion on which Encompass relies. Rather, Encompass relies
on a separate exclusion for bodily injury or property damage “arising out of
sexual molestation, corporal punishment, or physical or mental abuse.” (Mot.
for Summ. J. at 2.) Thus, Crow’s analysis is directly on point. See Crow, 2012
WL 2090078 at *3-4.
H.E.S. also attempts to distinguish the other Ohio Courts of Appeals
cases cited by Encompass. H.E.S. successfully distinguishes United Ins. Co. v.
Myers because the policy provision at issue there specifically excluded from
coverage claims of negligent supervision. 2002 WL 31716117, at *3-4. However,
the exclusions at issue in Westfield Ins. Co. v. Porchervina and Doe v. Sherwin
are nearly identical to the exclusion at issue here. H.E.S. argues that
Porchervina should be distinguished because it involved a claim for negligent
infliction of emotional distress rather than negligent supervision, and the court
found that under Ohio law emotional distress did not constitute a bodily injury
under the policy. (Mot. for J. on the Pleadings at 10-11.) However, the court set
forth an alternative holding, finding that the negligence claim was also
excluded from coverage pursuant to an exclusion in the policy for bodily injury

“arising out of sexual molestation, corporal punishment or physical or mental
abuse,” since all of the alleged injuries arose out of the sexual molestation by
the insured’s son. Porchervina, 2008 WL 5205662, at *4-5. H.E.S. has not
provided any substantive reason for why a claim of negligent infliction of
emotional distress should be treated differently than a claim of negligent
supervision, nor does the language of the sexual molestation exclusion provide
a basis for such a distinction.
H.E.S. urges the Court to disregard Sherwin because of an “emphasized
dissent which finds that the majority misapplied” the Ohio Supreme Court’s
decision in Westfield Ins. Co. v. Hunter, 2011-Ohio-1818, 948 N.E.2d 931, 933
(Ohio 2011). (Mot. for J. on the Pleadings at 12.) However, the mere fact that
there is a dissenting opinion does not render the majority opinion in Sherwin
unpersuasive. Furthermore, even if the Court were to disregard Sherwin, the
decisions in Porchervina, Crow, and World Harvest Church all support
Encompass’s interpretation of the sexual molestation exclusion.
In her Motion for Judgment on the Pleadings, H.E.S. primarily relies on
two Ohio Supreme Court cases. (Mot. for J. on the Pleadings at 5-9.) In the first
case, Westfield Ins. Co. v. Hunter, the Ohio Supreme Court interpreted an
exclusion in a homeowners’ policy for claims arising out of premises owned by
the insured that are not insured locations. 948 N.E.2d at 933. The insured
were sued by their grandchild and his parents for negligence related to an
accident that occurred on one of their properties that was not an insured
location. Id. at 934. The complaint did not allege that any condition on the
property contributed to the accident. Id. The court held that the exclusion was
properly interpreted to exclude coverage for premises-based liability claims, but
did not exclude “claims that arise from the insured’s alleged negligence if that
negligence is unrelated to the quality or condition of the premises . . . .” Id. at
937. The court cited with approval a case in which the Kentucky Supreme
Court held that the phrase “‘arising out of’ . . . connotes the need for a direct or
responsible condition.” Id. at 936 (quoting Eyler v. Nationwide Mut. Ins. Co.,
824 S.W.2d 855, 857 (Ky. 1992)).
H.E.S. argues that, pursuant to Hunter, the Court “should find that the
claims in the underlying lawsuit arise out of negligent supervision and hence
do not ‘arise out of’ the sexual molestation exclusion . . . .” (Mot. for J. on the
Pleadings at 7.) It is unclear to the Court how Hunter supports such a finding.
Moreover, Hunter is not inconsistent with the reasoning of World Harvest
Church or the various Courts of Appeals cases interpreting nearly identical
sexual molestation exclusions to exclude claims of negligence against parents
of minors who commit sexual molestation. Indeed, two of the Courts of Appeals
cases discussed above were decided after Hunter and specifically noted that the
analysis in Hunter is instructive to the application of the term “arising out of,”

but that the case is factually distinguishable from cases involving the
application of sexual molestation exclusions to negligence claims. Sherwin,
2015 WL 3824019, at *4; Crow, 2012 WL 2090078, at *4. Those two cases
applied the Hunter court’s definition of “arising out of” in concluding that the
claims for negligent supervision alleged a responsible condition for the
underlying sexual molestation and were therefore excluded from coverage. Id.
In addition, H.E.S. argues that Hunter “is consistent with well
established Ohio law which holds that exclusions for intentional acts do not
categorically defeat coverage for related negligent acts of other insured . . . .”
(Mot. for J. on the Pleadings at 8.) H.E.S. also relies on Safeco Ins. Co. of Am. V.
White, 2009-Ohio-3718, 913 N.E.2d 426 (Ohio 2009), in support of this
argument. (Id. at 8-9.) In Safeco, a negligence action was filed against the
insured after their son attacked another child. Id. at 428. The insurance policy
excluded coverage for injury or damage that was “expected or intended by an
insured or which is the foreseeable result of an act or omission intended by an
insured.” Id. at 430. The court held that “whether the act is intentional must be
determined from the perspective of the person seeking coverage,” and
concluded that,
[T]orts like negligent supervision, hiring, retention, and
entrustment are separate and distinct from the related intentional
torts . . . that make the negligent torts actionable. Thus, in
determining whether a policy exclusion precludes coverage for that
negligent act, we must examine the injuries arising from the
negligent act on their own accord, not as part of the intentional
act.
Id. at 432, 434.
Once again, the Court fails to see how this holding is inconsistent with
World Harvest Church or any other decision cited by Encompass. The exclusion
at issue here does not distinguish in any way between negligent and intentional
acts. Rather, it broadly applies to any bodily injury or property damage
“[a]rising out of sexual molestation, corporal punishment, or physical or mental
abuse.” (Pl.’s Statement of Facts ¶ 6.) The court in Crow found that its decision
was not at odds with Safeco for precisely this reason. 2012 WL 2090078, at *5
(noting that the policy provisions at issue in Safeco contained language
concerning the expected or intended consequences of an action, whereas the
sexual molestation exclusion at issue in Crow did not contain “any language
regarding the necessary knowledge or intent of the insured.”)
Taking into account each of the cases cited by the parties, the Court
finds that, under Ohio law, the exclusion in Edwards’s insurance policy for
bodily injury “[a]rising out of sexual molestation, corporal punishment, or

physical or mental abuse” is properly interpreted to exclude the negligent
supervision claim against Edwards to the extent that the alleged injuries arise
out of E.H.’s sexual assault. The Court must next compare the specific
allegations against Edwards with the exclusion to determine whether all of the
injuries and damages alleged by H.E.S. arise out of the sexual molestation.
B. Application of the Exclusion to the Claim Against Edwards
Encompass asserts that “[t]here is no dispute that the claims of H.S. are
wholly based upon her being sexually assaulted by E.H.” and cites to
paragraph 14 of its Statement of Facts, which states that H.E.S.’s injuries were
“a direct and proximate result of the sexual assault and battery . . . .” (Mot. for
Summ. J. at 8; Pl.’s Statement of Facts ¶ 14.) H.E.S. does not dispute
paragraph 14 of Encompass’s Statement of Facts. (Resp. in Opp. at 4, ECF No.
42.) Indeed, in H.E.S.’s Motion for Judgment on the Pleadings, H.E.S. states
that she filed suit against Edwards “for negligence which caused a sexual
assault . . . .” (Mot. for J. on the Pleadings at 1-2.) However, Edwards argues
that the Amended Complaint also includes allegations that her negligent
supervision led to E.H. furnishing alcohol to H.E.S. in violation of Ohio law.
(Edwards’s Resp. in Opp. at 3, ECF No. 43.) Therefore, Edwards argues that
Encompass has a duty to defend and indemnify her for the “separate and
distinct allegations of negligent supervision against Edwards related to the
intoxication of H.E.S.” (Id.)
In analyzing whether a negligence claim falls within the scope of a sexual
molestation exclusion, Ohio courts look at the source of the alleged injuries.
See Crow, 2012 WL 2090078, at *4 (noting that the complaint “fails to allege
any bodily injury due solely to [the insured’s] negligence, but rather, predicates
the damages on the conduct of [the insured] in conjunction with [her son’s]
conduct.”); Porchervina, 2008 WL 5205662, at *5 (noting that all of the
plaintiff’s alleged injuries, including those attributed to the negligence of the
parents of the defendant, resulted from the alleged sexual molestation by the
defendant). The Amended Complaint in the Personal Injury Suit generally
alleges that “[a]s a direct and proximate result of the sexual assault and battery
referred to above, minor H.S. was injured in and about her body and
extremities . . . .” (Am. Compl. in No. 16-20331 ¶ 40.) With respect to the claim
against Edwards, the Amended Complaint alleges that “[a]s a direct and
proximate result of the sexual assault . . . and hence as a direct and proximate
result of Defendant Jodee C. Edward’s negligent supervision of E.H., H.S. has
sustained and will in the future continue to sustain the compensatory damages
alleged in Paragraph 39.” (Id. ¶ 83.) Thus, the Amended Complaint clearly
states that Edwards’s negligent supervision was a responsible condition for
H.E.S.’s injuries and that the injuries were a direct and proximate result of the

sexual assault. Although the Amended Complaint does allege that Edwards
failed to prevent E.H. from obtaining alcoholic beverages and was therefore
negligent under Ohio law (id. ¶ 80), nowhere does the Amended Complaint
allege that H.E.S. suffered injuries as a result of drinking alcohol, nor does the
Amended Complaint allege a separate cause of action against Edwards for her
failure to prevent E.H. from obtaining alcoholic beverages in violation of Ohio
law. Therefore, pursuant to Porchervina and Crow, the claim asserted against
Edwards falls within the scope of the exclusion for injuries arising out of sexual
molestation because all of H.E.S.’s injuries are alleged to have resulted from
the sexual assault.
Moreover, to the extent that the Amended Complaint can be read to
include a separate allegation of negligent supervision against Edwards for
H.E.S.’s intoxication, Encompass notes that Edwards’s insurance policy limits
coverage to claims or suits for bodily injury or property damage. (Reply at 3,
ECF No. 48.) Specifically, the policy provides coverage for claims or suits
“brought against any covered person” for personal injury, bodily injury, or
property damage “caused by an occurrence to which this coverage applies . . .
.” (Statement of Facts ¶ 5.) The term “occurrence” is specifically defined as “[a]n
accident . . . resulting in bodily injury or property damage.” (Id. ¶ 7.) The term
“bodily injury” is defined as “physical bodily harm, including sickness or
disease. This includes required care, loss of services and death resulting
therefrom.” (Id.) Since there is no allegation in the Amended Complaint that
H.E.S. suffered bodily injury or property damage from the alcohol that she
consumed, the policy does not cover any “separate and distinct allegations of
negligent supervision against Edwards related to the intoxication of H.E.S,” to
the extent there are any.
Therefore, pursuant to Ohio law and the plain meaning of the terms of
the insurance policy, the claim for negligent supervision asserted against
Edwards is outside the scope of coverage and Encompass has no duty to
defend or indemnify Edwards in the Personal Injury Suit.
4. Conclusion
Accordingly, for the reasons set forth above, the Court denies the
Defendant’s Motion for Judgment on the Pleadings (ECF No. 39) and grants
the Plaintiff’s Motion for Final Summary Judgment (ECF No. 37). The Court
directs the Clerk to close this case.
Done and ordered in chambers, at Miami, Florida, on August 14, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge