Acadia Insurance Company v. Pearl River Community College et al
MEMORANDUM OPINION AND ORDER granting 24 Motion for Judgment on the Pleadings. Ordered that the plaintiff is granted a declaratory judgment that it does not owe any duties to the defendants for claims made by Donna P. Green as guardian ad litem for L.M.S. Signed by Chief District Judge Louis Guirola, Jr. on 2/21/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ACADIA INSURANCE COMPANY
CAUSE NO. 1:16CV182-LG-RHW
PEARL RIVER COMMUNITY COLLEGE and
DONNA P. GREEN, Guardian Ad Litem for
L.M.S., a minor
MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE THE COURT is the plaintiff’s Motion  for Judgment on the
Pleadings, filed pursuant to Fed. R. Civ. P. 12(c). Acadia Insurance Company
requests a declaratory judgment that it does not owe any duties to the defendants
for claims made by Donna P. Green as guardian ad litem for L.M.S. Green brought
the underlying complaint against Pearl River Community College in the Circuit
Court of Pearl River County after L.M.S. suffered a sexual assault and rape on the
PRCC campus. Acadia asserts that the policy of insurance it issued excludes
coverage for the injuries alleged by Green. The issues have been fully briefed. After
due consideration of the parties’ submissions and the relevant law, it is the Court’s
opinion that the Motion should be granted. Acadia has shown that the policy of
insurance excludes coverage for the injuries alleged in the underlying action.
Accordingly, Acadia owes no duty to defend or indemnify Pearl River Community
According to the allegations in the underlying lawsuit filed by Green against
Pearl River Community College (Am. Compl. Ex. 4, ECF No. 15-4), L.M.S. was a 19year-old student living in a dormitory on the PRCC Poplarville campus when she
was sexually abused and molested by another PRCC student, LaDerrick Scott.
Green alleges that in 2013, Scott was recruited by PRCC basketball coaches to play
basketball for PRCC on an athletic scholarship. Scott was admitted to PRCC
despite not being eligible to attend college. Green alleges that PRCC should have
known of Scott’s propensity for violence from his high school records. Further, Scott
was arrested for possession of marijuana twice within six weeks in the fall of 2014,
and tested positive for marijuana use in the interim. Nevertheless, he suffered no
Green alleges that in the early morning hours of February 8, 2015, Scott was
observed by the PRCC women’s basketball coach in the hallway of L.M.S.’s allwoman dormitory. Even though men were prohibited from being in the dormitory
after ten o’clock p.m., the basketball coach did nothing about Scott’s presence there.
Further, PRCC failed to notice that the doors to the dormitory were not securely
fastened or locked. While he was in the dormitory, Scott entered L.M.S.’s locked
room using an access card he had somehow obtained. He then “proceeded to
terrorize and threaten Plaintiff’s minor and then to forcibly and repeatedly sexually
assault and rape the Plaintiff’s minor before leaving Room 203 with threats of
further bodily harm if the Plaintiff’s minor was to follow him.” (Id. at 10).
Green’s claim against PRCC is for negligence, which she alleges PRCC
committed by, inter alia, failing to keep the campus and dormitory safe; failing to
dismiss Scott from PRCC and the basketball team after he tested positive for
marijuana use; improperly recruiting Scott; failing to take action when Scott was
observed in the female dorm after hours; failing to properly secure the premises;
and failing to follow its own safety policies and procedures. (Id. at 12-15). Green
alleges that PRCC’s negligence proximately caused L.M.S. to be sexually assaulted
Acadia “extended a defense under a reservation of all rights to PRCC,” (Am.
Compl. 3, ECF No. 15), and filed this lawsuit for declaratory judgment. Acadia now
requests a judgment pursuant to Federal Rule of Civil Procedure 12.
“After 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). “The standard for
dismissal under Rule 12(c) is the same as that for dismissal for failure to state a
claim under Rule 12(b)(6).” Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439
(5th Cir. 2015) (citation and brackets omitted). The Court “accept[s] all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation and quotation marks omitted). While the Court will generally not
consider matters outside the pleadings in deciding a 12(b)(6) motion, the Fifth
Circuit has stated that “it is clearly proper in deciding a 12(b)(6) motion to take
judicial notice of matters of public record.” Norris v. Hearst Trust, 500 F.3d 454,
461 n.9 (5th Cir. 2007); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). The insurance policy and underlying complaint at issue here
are the subject of and attached to the Acadia’s Amended Complaint. Accordingly,
those documents may be considered in connection with this Motion.
The Duties to Defend and Indemnify
Under Mississippi law, the determination of whether an insurance company
has a duty to defend depends upon the language of the policy as compared to the
allegations of the complaint in the underlying action. See U.S. Fid. & Guar. Co. v.
Omnibank, 812 So. 2d 196, 200 (Miss. 2002); Delta Pride Catfish, Inc. v. Home Ins.
Co., 697 So. 2d 400, 403 (Miss. 1997). “An insurance company’s duty to defend its
insured is triggered when it becomes aware that a complaint has been filed which
contains reasonable, plausible allegations of conduct covered by the policy.
However, no duty to defend arises when the claims fall outside the policy’s
coverage.” Minn. Life Ins. Co. v. Columbia Cas. Co., 164 So. 3d 954, 970 (Miss.
2015) (quoting Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So. 2d
440, 451 (Miss. 2006)). An insurer’s “duty to defend is broader than the insurer’s
duty to indemnify under its policy of insurance: the insurer has a duty to defend
when there is any basis for potential liability under the policy.” W.R. Berkley Corp.
v. Rea’s Country Lane Constr., Inc., 140 So. 3d 437, 442 (Miss. Ct. App. 2013)
(quoting Titan Indem. Co. v. Pope, 876 So. 2d 1096, 1101 (Miss. 2004)). The insurer
has an “absolute duty to defend a complaint which contains allegations covered by
the language of the policy,” independent from its duty to indemnify which is
determined once the facts have been developed to establish whether the conduct of
the insured giving rise to the claim falls under or outside the coverage afforded by
the policy. Moeller v. Am. Guar. & Liab. Ins. Co., 707 So. 2d 1062, 1069 (Miss.
Acadia contends that the Abuse or Molestation Endorsement to the policy
excludes coverage for the plaintiffs’ injuries. The Endorsement modifies the general
liability coverage for “occurrences” and reads:
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:
Reporting to the proper authorities, or failure to so
of a person for whom any insured is or ever was
legally responsible and whose conduct would be
excluded by Paragraph 1. above.
(Am. Compl. Ex. 2, ECF No. 15-2 at 108).
Acadia contends that the claims in the underlying lawsuit all originate from
or arise out of the allegation that “LaDerrick Scott proceeded to terrorize and
threaten Plaintiff’s minor and then to forcibly and repeatedly sexually assault and
rape the Plaintiff’s minor before leaving Room 203 with threats of further bodily
harm if the Plaintiff’s minor was to follow him.” (Am. Compl. Ex. 4 at 10, ECF No.
15-4). Acadia argues that Scott’s conduct amounts to actual and/or threatened
abuse or molestation, and claims arising from that conduct are excluded from
coverage by the Abuse or Molestation Endorsement.
Acadia cites a number of cases where the language of the Abuse or
Molestation Endorsement has been found to be clear and unambiguous, including
two from Mississippi: Lincoln County School District v. Doe, 749 So. 2d 943 (Miss.
1999), and Employers Mutual Casualty Co. v. Raddin, No. 5:10cv137 (DCB) (RHW),
2012 WL 1098624 (S.D. Miss. Mar. 30, 2012). In these cases, the court found no
coverage was available for injuries caused by a sexual assault on a student by
another student, Lincoln Cty. Sch. Dist., 749 So. 2d at 946, or for injuries caused by
unauthorized physical examinations conducted at a medical clinic. Raddin, 2012
WL 1098624, at * 13. Additionally, this Court has found the Endorsement language
to exclude coverage for injuries caused by abuse of a young child by the proprietor of
a daycare. Maryland Cas. Co. v. Nestle, No. 1:09cv644-LG-RHW, 2010 WL 3735756,
at *3 (S.D. Miss. Sept. 17, 2010). Courts in many other jurisdictions have held
similarly. See, e.g., Valley Forge Ins. Co. v. Field, 670 F.3d 93, 95 (1st Cir. 2012)
(underlying suit alleged child in the care of the insureds as a long-term patient was
abused by adoptive parents); Nautilus Ins. Co. v. Our Camp Inc., 136 F. App’x 134,
138 (10th Cir. 2005) (underlying suit alleged child attending insured’s summer
camp was sexually abused by co-camper); Cmty. Action for Greater Middlesex Cty.,
Inc.v. Am. All. Ins. Co. v, 757 A.2d 1074, 1082-83 (Conn. 2000) (underlying suit
alleged sexual molestation of student at insured’s preschool by other students).
PRCC argues that the first paragraph of the Endorsement does not apply
because L.M.S. was not in PRCC’s custody or control, and there is a question of fact
regarding whether L.M.S. was under PRCC’s care. Green argues 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.” (Green Resp. 14, ECF No. 29).
Neither Defendant contends that the language of the Endorsement is ambiguous,
and the Court finds it is not.
a. Care, Custody, or Control
PRCC argues that as a nineteen year old, L.M.S. had freedom of movement
on and off the campus, and this is a critical distinction from the cases interpreting
the Endorsement that involve young children, some with special needs. PRCC cites
an unreported Connecticut state court decision finding that women in their late
teens or twenties, who had gone to the home of a police officer who took nude
photographs of them, were always free to leave and therefore were not in his “care,
custody and control.” Conn. Ins. Guar. Ass’n v. Daigle, No. CV054013240S, 2007
WL 1976023, at *3 (Conn. Super. Ct. June 12, 2007). The opinion is unpersuasive,
as the policy language in that case is phrased in the conjunctive (“care, custody and
control”) rather than the disjunctive as in this case, and the court does not cite any
authority for its conclusion.
The Eighth Circuit Court of Appeals has addressed PRCC’s argument in a
case involving sexual abuse of a parishioner by a priest. McAuliffe v. N. Ins. Co. of
N.Y., 69 F.3d 277 (8th Cir. 1995). The court stated
[The insured] also contends the exclusion does not apply because the
parishioner was not in [the priest’s] “care, custody or control.” [The
insured] argues this language only encompasses the supervision of
minors. We disagree. There is no language in the exclusion that limits
its scope to minors. [The priest] was counseling the parishioner on a
number of personal and spiritual issues, and we conclude the
parishioner was in [the priest’s] care when the abuse occurred.
Id. at 279. Accordingly, L.M.S.’s age does not determine whether she was in the
care, custody or control of PRCC.
The terms “care,” “custody” and “control” are not given special meanings in
the policy, and therefore the Court must give them their ordinary meaning. See
Minn. Life , 164 So. at 968. The dictionary definition of “care” most applicable to
this case is “charge, supervision.” Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/charge (last visited February 16,
2017). “Custody” means “immediate charge and control (as over a ward or a
suspect) exercised by a person or an authority,” while “control” means “to exercise
restraining or directing influence over; to have power over.” Id.,
To be in someone’s “care” does not require physical custody or control of the
person. The parishioner in the McAuliffe case cited above was in the care of the
priest who abused her during counseling sessions in the rectory. McAuliffe, 69 F.3d
at 279. Also, the First Circuit Court of Appeals found that the plain meaning of
“care” included a child receiving bi-weekly, outpatient services from a social services
provider. Valley Forge Ins. Co. v. Field, 670 F.3d 93, 104-05 (1st Cir. 2012).
In the Court’s view, the allegations of the underlying complaint establish that
L.M.S. was under the care, custody or control of PRCC. Green’s allegations include
that PRCC had many policies, procedures, rules and regulations concerning the
living conditions in the dormitories. For example, Green alleges that only residents
or escorted visitors are allowed inside the dormitories; activities are visually
monitored by staff; opposite gender visitation is limited in time and location; the
dormitories close for five hours each night; and any person attempting to enter the
dorm during closed hours faces dismissal from PRCC. (Am. Compl. Ex. 4, at 4-5,
ECF No. 15-4). These allegations show that PRCC exercised substantial,
supervisory control over L.M.S.’s living conditions and freedom of movement, and
are therefore adequate to show that L.M.S. was in the care, custody or control of
PRCC at the time of sexual assault.
b. Negligence Claims
Green objects to Acadia’s assertion that the Endorsement excludes coverage
for all claims in the underlying complaint because they arise or originate from the
sexual assault. She argues that the Raddin and Lincoln County cases can be
distinguished and should not be relied upon in this case. She asserts that in
Raddin, the claim against the employer was based on its vicarious liability for the
intentional act of its employee. In contrast, her claims against PRCC are for “its
own active negligence which resulted in injury to L.M.S.” (Green Resp. 14, ECF No.
29). Green also argues that the Lincoln court did not engage in a lengthy or
detailed discussion of the facts, and the case generally “did not involve the broader
duty to defend as is implicated” in this case. (Id. at 11). Green argues that her
underlying complaint “is based on PRCC’s numerous acts of negligence, from the
recruitment and enrollment of LaDerrick Scott, and going forward to February 8,
2015. Simply put, PRCC’s conduct is a covered “occurrence” from the standpoint of
PRCC, the insured.” (Id. at 13).
The Court does not agree with Green’s characterization of the Lincoln County
case. The court analyzed the same Abuse and Molestation Exclusion as that at
issue here to determine if there was coverage for injuries resulting from one
student’s rape of another student on school premises. Lincoln Cty., 749 So. 2d at
945. Determining whether the injuries were covered or excluded by the policy was
necessary before the court could answer the sovereign immunity question. (Id.
(¶9)). To the extent that the issues overlap with this case, Lincoln County is
Raddin does involve an employee/employer relationship in which claims of
negligence, negligent hiring, negligent training, negligent supervision, negligent
entrustment, and negligent retention were brought against the employer based on
actions of the employee. Raddin, 2012 WL 1098624, at *9. But the court noted that
the employer/employee relationship was irrelevant to its analysis, stating that
“[e]ven if the Underlying Defendants are not employers or supervisors of [the
tortfeasor], claims of negligent entrustment, negligent supervision, and failure to
train are not recognized as ‘occurrences.’” Id. at *10. The court cited American
National General Insurance Company v. Ryan, 274 F.3d 319 (5th Cir. 2001), for the
proposition that “an occurrence-based policy provides no coverage to any third party
for claims related to and interdependent on intentional conduct.” Id. (citing Ryan,
274 F.3d at 325).
The “active negligence” Green alleges against PRCC is related to and
interdependent on Scott’s intentional conduct. Green would have no claim against
PRCC were it not for the sexual assault by Scott, and “[a]n insurer has no duty to
defend or to indemnify its insureds against claims that could not be brought absent
the underlying and excluded tortious conduct.” Ryan, 274 F.3d at 325 (quoting Am.
States Ins. Co. v. Bailey, 133 F.3d 363, 371 (5th Cir. 1998)); see also Our Camp Inc.,
136 F. App’x at 138 (“even assuming that Our Camp’s actions resulted in additional
injury to Michael, the exclusionary language is broadly written and the underlying
complaint itself links Michael’s injuries to the abuse. Thus, any additional injury in
this case “arose out of” the original abuse); Insights Trading Grp., LLC v. Fed. Ins.
Co., No. CIV.A. RDB-10-340, 2010 WL 2696750, at *5 (D. Md. July 6, 2010) (“the
alleged sexual assault was the instrumentality and the but for cause of the injury,
therefore the exclusion must apply regardless of any supplemental causes or
theories that may be cited in the underlying case”). For this reason, Green’s
negligence claims do not establish an injury that is within coverage under the
Acadia has shown that it is entitled to a declaratory judgment that it is not
obligated to provide a defense for its insured in the underlying lawsuit brought by
Green on behalf of L.M.S. Because the duty to defend is broader than the duty to
indemnify, it necessarily follows that Acadia also has no duty of indemnification.
IT IS THEREFORE ORDERED AND ADJUDGED that the plaintiff
Acadia Insurance Company’s Motion  for Judgment on the Pleadings is
IT IS FURTHER ORDERED that the plaintiff is granted a declaratory
judgment that it does not owe any duties to the defendants for claims made by
Donna P. Green as guardian ad litem for L.M.S.
SO ORDERED AND ADJUDGED this the 21st day of February, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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