Hernandez et al v. Colegio y Noviciado Santa Maria del Camino, Inc.

Filing 257

OPINION AND ORDER: Granting 190 "Motion for Summary Judgment as to insurance coverage." Accordingly, plaintiffs' claims against Mapfre are dismissed. Signed by Judge Pedro A. Delgado-Hernandez on 03/27/2015. (LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ELAINE HERNÁNDEZ, et al.,
Plaintiffs,
v.

CIVIL NO. 12-2052 (PAD)

COLEGIO Y NOVICIADO SANTA
MARIA DEL CAMINO, INC.; et al.
Defendants.

OPINION AND ORDER
Delgado-Hernández, District Judge.
Elaine Hernández initiated this action against Colegio Santa Maria del Camino and its
insurer, Mapfre/Praico Insurance Company of Puerto Rico, claiming that a minor (E.S.L.) sexually
molested her daughter (minor I.C.H.) at the Colegio’s premises, where both minors were enrolled
(Docket No. 59 at ¶¶ 8-49). Before the Court is Mapfre’s “Motion for Summary Judgment”
(Docket No. 190), which plaintiffs and the Colegio opposed (Docket Nos. 224 and 221-222).
Mapfre replied (Docket Nos. 237 and 238), and plaintiffs and the Colegio sur-replied (Docket Nos.
245, 248 and 249). The Court GRANTS the motion and DISMISSES the case against Mapfre.
I.

BACKGROUND

The complaint was brought on Hernández’ and on I.C.H.’s behalf. Plaintiffs allege that
I.C.H. was sexually molested because of the Colegio’s negligence; that the Colegio breached
contractual obligations; and that Hernández was defamed. At the time of the asserted occurrence,
the Colegio was insured through a Commercial General Liability Policy issued by Mapfre. In
Docket No. 256, the Court dismissed all of plaintiffs’ claims except the negligence claim filed on

Elaine Hernández, et al. v. Colegio y Noviciado Santa María del Camino, Inc. et al.
Civil No. 12-2052 (PAD)
Opinion and Order
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behalf of I.C.H. The issue here, then, is whether I.C.H.’s claim falls within the policy’s “Abuse or
Molestation Exclusion.”
II.

DISCUSSION

A. Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The purpose of summary judgment is to pierce the pleadings and
assess the proof in order to see whether there is need for trial. Mesnick v. General Electric Co.,
950 F.2d 816, 822 (1st Cir. 1991). It permits evaluation of insurance coverage allegations, and
dismissal when coverage does not exist. López & Medina Corp. v. Marsh USA, Inc., 667 F.3d 58,
63 (1st Cir. 2012).
B. Insurance Contracts
The Puerto Rico Insurance Code governs insurance contracts in Puerto Rico.

The

contract’s terms are set forth in the policy. Natal Cruz v. Negrón, 2013 T.S.P.R. 67, *5 (citing
Maderas Tratadas v. Sun Alliance et. al., 185 D.P.R. 880 (2012)). They are accorded their ordinary
meaning, as amplified, extended, or modified by any lawful rider, endorsement, or application
attached to, and made part of the policy. P.R. Laws Ann. tit. 26 § 1125; see also, Natal Cruz v.
Negrón, 2013 T.S.P.R. 67, *5-6; Marina-Aguila v. Den Caribbean, Inc., 490 F.Supp.2d 244, 248
(D.P.R. 2007); Metlife Capital Corp. v. Westchester Fire Ins. Co., 224 F.Supp.2d 374, 382 (D.P.R.
2002)). When they are clear and unambiguous, they must be applied and enforced as written.
Marina Aguila, 490 F.Supp.2d at 249; Natal Cruz, 2013 T.S.P.R. 67 at *5.

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Civil No. 12-2052 (PAD)
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Ambiguity does not exist simply because the parties disagree about the proper
interpretation of a policy provision. Rather, it may be found where the policy’s language is
susceptible to more than one rational interpretation. Clark School for Creative Learning, Inc. v.
Philadelphia Indem. Ins. Co., 734 F.3d 51, 55 (1st Cir. 2013). The same is true with respect to
exclusions. Natal Cruz, 2013 T.S.P.R. 67, *5.
C. Analysis
The Policy here includes an “Abuse or Molestation Exclusion,” providing that:
The 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 any insured, or
2. the negligent:
a. Employment;
b. Investigation;
c. Supervision;
d. Reporting to the proper authorities, or failure to so report; or
e. Retention;
of a person for whom any insured is or ever was legally responsible and
whose conduct would be excluded by Paragraph 1. above.
Docket No. 190, Exh. 1 at p. 126.
Mapfre contends this exclusion precludes coverage. First, it maintains that the exclusion
applies to all types of negligent conduct arising out of abuse or molestation by anyone of any
person, while in the care, custody or control of the insured, and to all damages arising out of
incidents of molestation. Second, it argues that all claims and/or causes of action plaintiffs have
filed against the Colegio flow from the alleged sexual molestation incident. Next, it claims that at
that time, minor I.C.H. was under the care, custody or control of the Colegio. As such, and given
plaintiffs’ claim that the Colegio failed to properly supervise the use of the bathroom and let minor

Elaine Hernández, et al. v. Colegio y Noviciado Santa María del Camino, Inc. et al.
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I.C.H. go there unaccompanied, the allegations fall squarely within the exclusionary language for
negligent supervision of a person for whom the Colegio is, or ever was legally responsible (Docket
No. 191 at pp. 15-16, 18-19).
By contrast, for the Colegio, the exclusion is directed at excluding coverage under the
common “respondent superior responsibility” that a school would have with respect to the actions
of its employees and officials toward their students, and not to the alleged sexual molestation of a
minor student by another student in the same school (Docket No. 221 at p. 13). Correspondingly,
it claims that the abuse or molestation exclusion is inapplicable to an “innocent insured” (in this
case, the Colegio), who did not commit the conduct excluded from coverage, but is being held
accountable for negligence. Id. at pp. 13-14.
The clear and unambiguous language of the exclusion clause specifically excludes
coverage for any and all claims arising from the actual or threatened abuse or molestation by
anyone of any person while in the care, custody or control of any insured; or the negligent
supervision of a person for whom the Colegio is or ever was legally responsible and whose conduct
is thereby excluded. By incorporating the term “by anyone of any person” in the exclusion clause,
the policy excludes coverage for the conduct alleged to have occurred in this case, regardless of
who the involved parties were, as long as the victim was in the care, custody or control of the
Colegio.
The result is not counterintuitive, but consistent with the conclusion reached in cases
involving clauses with similar or analogous exclusionary language. See, Erie Ins. Exchange v.
First United Methodist Church, 690 F.Supp.2d 410 (4th Cir. 2010) (finding the exclusion to be
unambiguous and applicable to claims arising out of the abuse of minors BK, BD and CS at a
preschool by another minor at First United Methodist Church Preschool); Community Action for

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Civil No. 12-2052 (PAD)
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Greater Middlesex Cnty, Inc. v. American Alliance Ins. Co., 757 A.2d 1074 (2000) (excluding
coverage in suit of alleged sexual molestation of female child who attended insured’s preschool by
three young boys who also attended that preschool).
The “innocent insured exception,” argument does not lead to a different result. For
example, in New London County Mutual Insurance v. Lyon, 2011 WL 1565811 (Conn.Super.
March 25, 2011) an insured was sued for negligently providing a minor with alcohol in the
insured’s home, after which the minor was sexually assaulted in that same location by an unknown
third person. The policy excluded coverage for “body injury” or “property damage” arising out of
“sexual molestation, corporal punishment or physical or mental abuse…” Id. at *4. The court
recognized that parties may exclude from coverage, “injuries from sexual molestation regardless
of who commits it” (Id. at *7), but that the policy in question was ambiguous and did not specify
whose actions were so excluded. Id. at *8. For that reason, it required the insurer to defend the
insured (an “innocent insured”), who did not commit the sexual assault himself. Id. at *6-*7, *9.
Yet that is not the situation here, where the clause clearly excludes coverage.
Likewise, in American Family Mutual Ins. v. Bower II, 752 F.Supp.2d 957, 965 (2010),
the insurer argued that coverage was precluded under one or all of the following exclusions (i) the
sexual molestation exclusion, (ii) the intentional acts exclusion; and (iii) the violation of law
exclusion. Id. at 965-966. The court, however, held that coverage was not excluded for the
negligent acts of a co-insured. Again, that is not the situation in this case, where no co-insured has
asked the insurer to cover the alleged occurrence. More important, as written, the exclusion
directly applies to the negligent supervision of a person (like I.C.H. and E.S.L.), for whom the
Colegio “is or ever was legally responsible.”

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Plaintiffs allege the exclusion is inapplicable because minor E.S.L. was not an employee
of the Colegio and, thus, that the Colegio had no legal responsibility over his actions. Such reading
overlooks the policy’s clear and unambiguous terms and directly contradict plaintiffs’ position
throughout the case: (1) that the Colegio was legally responsible for the supervision of both E.S.L.
and I.C.H., and (2) that the unsupervised use of the bathroom by those students led to the sexual
molestation incident upon which they seek to find the Colegio liable.1 In these circumstances,
I.C.H.’s claim is excluded under the “Abuse or Molestation Exclusion” of the Policy.2
III.

CONCLUSION

In view of the foregoing, Mapfre’s motion for summary judgment (Docket No. 190) is
GRANTED, and the claims against it dismissed.
SO ORDERED.
In San Juan, Puerto Rico, this 27th day of March, 2015.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge

Plaintiffs also claim that, even if no sexual molestation occurred, Hernandez “still suffered damages from what she believed she
saw during the [b]athroom [i]ncident in which she saw [m]inor E.S.L. with his pants down alone in the toilet cubicle of the bathroom
with her daughter, and believed [m]inor E.S.L. had sexually molested her daughter.” Id. at pp. 16-17. That may be so, but this
argument was made before the Court dismissed Hernandez’ negligence claim as time barred. See, Docket No. 256, at p. 16.
1

Plaintiffs allege Mapfre has assumed “contrary” positions by requesting the dismissal of the case on its merits and the dismissal
of the case for lack of insurance coverage. It is clear that Mapfre’s requests involve different arguments based on different premises.
The motion for summary judgment at Docket No. 154 was mainly based on the contention that plaintiffs’ own admissions during
their depositions confirmed that the alleged sexual molestation incident did not occur, while the current motion is predicated on the
lack of coverage under the Policy.
2