Grasis et al v. Win Access Inc. et al

Filing 404

MEMORANDUM AND ORDER: Adopting in part 387 Report and Recommendation re 306 Worcester Polytechnic Institute's "Motion for Summary Judgment" and 121 , 146 , 216 and 293 MAPFRE's "Motion for Judgment on the Pleadings" (Docket Nos. 121, 146, 216 and 293). Signed by Judge Pedro A. Delgado-Hernandez on 3/30/2017.(LMR)

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

CIVIL NO. 13-1226 (PAD)

WIN ACCESS, INC., et al.
Defendants.

MEMORANDUM AND ORDER
Delgado-Hernández, District Judge.
This case stems from a sexual molestation incident (a rape), which allegedly occurred on
April 14, 2014 at the roof of the Ashford Imperial Condominium by one of its security guards,
William Rodríguez. 1 Before the court are (i) Worcester Polytechnic Institute’s (“WPI’s”) “Motion
for Summary Judgment” (Docket No. 306); and (ii) MAPFRE’s “Motion for Judgment on the
Pleadings” (Docket Nos. 121, 146, 216 and 293). The motions were referred to U.S. Magistrate
Judge Silvia Carreño-Coll, who issued a Report and Recommendation (“R&R”) (Docket No. 387),
granting WIP’s request and granting in part and denying in part MAPFRE’s request.

For the

reasons explained below, the R&R is ADOPTED IN PART.
I.

REFERRAL

A district court may refer a pending motion to a magistrate judge for a report and
recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Civ. Rule 72. Any

1 As the Report and Recommendation correctly noted, plaintiffs Michael, Dorothy and Lindsey Grasis claim damages in the Second
Amended Complaint from WIN Access, Inc.; Consejo de Titulares Condominio Ashford Imperial; Sea Breeze Apt. Rentals, Inc.;
Cooperativa de Seguros Múltiples; Universal Group, Inc., and MAPFRE, stemming from the sexual assault Lindsey Grasis suffered
while living in the Ashford Imperial Apartment Building. Consejo filed a cross claim against MAPFRE, WIN and Cooperativa,
and a Third Party Complaint against WPI.

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party adversely affected by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report. Loc. Civ. Rule 72(d). See 28
U.S.C. § 636(b)(1). In this case, the time to file objections was reduced to ten (Docket No. 387 at
p. 27).
A party that files a timely objection is entitled to a de novo determination of “those portions
of the report or specified proposed findings or recommendations to which specific objection is
made.” Ramos-Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R. 2010); Sylva v. Culebra
Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S.
667, 673 (1980)).
II.

THE REPORT AND RECOMMENDATION

First, the Magistrate Judge recommended that the third-party complaint filed against WPI
on February 25, 2014, 2 be dismissed as time-barred under the Puerto Rico Supreme Court’s ruling
of Fraguada-Bonilla v. Hosp. Auxilio Mutuo, 186 D.P.R. 365 (2012) and Maldonado-Rivera v.
Carlos Suárez, 195 D.P.R. 182 (2016). Second, she found that Lindsey Grasis was “under the care,
control, and supervision” of Ashford Imperial (Docket No. 387 at pp. 14-25), and that, as such,
claims related to the incident involving Rodríguez are excluded under each of the requisite prongs
of the “Abuse or Molestation Exclusion” of the Commercial General Liability Policy (No. CBP008839603), in favor of Consejo de Titulares Ashford Imperial (“Consejo”). Id. at p. 19. Finally,
she concluded that MAPFRE’s request should be denied as to the duty to defend claims. In her
view, the Second Amended Complaint alleges that Consejo faulted on a myriad of other issues
such as, failing to install cameras and proper lighting on the roof, and making sure that the cameras

2

That is, 1 year 10 months and 11 days after Consejo knew of the rape of Lindsey Grasis and the she was a student participating
in a project sponsored by WPI.

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on the building were working properly. Id. at p. 26. She reasoned that those claims “could provide
an independent basis for establishing Consejo’s negligence,” id., and held MAPFRE had a duty to
defend Consejo de Titulares until it can establish that all the claims against it arose because of the
illegal acts committed by Rodríguez. Id. Plaintiffs, MAPFRE and Consejo object to the R&R
(Docket Nos. 390, 391 and 392). Plaintiffs timely supplemented their objections at Docket No.
391.
III.

THE OBJECTIONS

A. Plaintiffs’ Objections at Docket Nos. 390 and 391
Plaintiffs claim the Magistrate Judge erred on three grounds. First, they assert that, while
interpreting the abuse or molestation exclusion in an insurance policy governed by Puerto Rico
law, the Magistrate Judge disregarded “a binding intermediate Puerto Rico appellate court decision
that determined coverage after interpreting the same abuse or molestation.” Second, they contend
that she erred in finding that the abuse or molestation exclusion was not ambiguous, as there is
more than one rational interpretation of the exclusion. Third, they state that she should hot have
given weight to an “irrelevant fact,” that is, the place where Lindsey Grasis was sexually assaulted.
In the alternative, they move to certify the coverage issue to the Puerto Rico Supreme Court. 3
As to their first argument, plaintiffs refer the court’s attention to a Judgment entered by the
Puerto Rico’s Court of Appeals in Perales-Cruz v. Villa del Asociado Jenaro Cortés, Inc., 2015
WL 3488871 (P.R. Court of Appeals April 30, 2015). In her R&R, the Magistrate Judge laid out
a well-reasoned explanation as to why the facts of Perales-Cruz are different from the facts here,

3 In their supplemental motion at Docket No. 391, they included additional authorities that were not included in their original
motion.

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particularly with respect to the duty of care allegedly owed by defendants (Docket No. 387 at pp.
21-23). The court agrees with the Magistrate Judge’s analysis and conclusion that Lindsey Grasis
was in the care of Consejo at the time the alleged raped occurred, making the holding of PeralesCruz inapplicable to this case. 4
Along that line, plaintiffs have consistently agreed with the Magistrate Judge’s position
that as an innkeeper, Consejo, MAPFRE’s insured, owed Lindsey Grasis a higher duty of care.
See, Docket No. 71 at ¶¶ 27, 65-67, 70 (asserting that the rape of Lindsey occurred at the roof, “a
communal element of the condominium”), and 74 (adding that, Consejo, “[a]s administrators of
said element, [. . .] is responsible for any damages caused to an individual in that vicinity”). 5 On
this end, however, their objections overlook that the Magistrate Judge found that the claims related
to the incident involving Rodríguez are excluded under each of the requisite prongs of the “Abuse
or Molestation Exclusion” of the Policy (Docket No. 387 at p. 19), including the negligent
employment of Rodríguez.
In connection with the second objection, plaintiffs refer to Perales-Cruz – which as noted
above is inapplicable – and state that: (1) the exclusion is ambiguous as a matter of law; and (2)
any ambiguity should be resolved in their favor. But the argument is misplaced, for review of the
specific text of MAPFRE’s policy, including the abuse and molestation exclusion, ultimately
confirms the conclusion the Magistrate Judge reached. The language is clear and unambiguous.
That plaintiffs disagree or that in their view a competing interpretation exists, does not make the

4 Notably, to determine whether property is under the care, custody, or control of an insured, courts consider the location, size, and
other characteristics of the property, and the insured’s relationship to the property, including the insured’s duties with respect to
the property, nature and extent of the insured's control over the property, and any interest the insured may have in the property.
See, 9 Lee R. Russ & Thomas F. Segalia, Couch on Insurance 126:22 (3d ed. 2007).
5 Because plaintiffs’ arguments in support of their third objection are intertwined with their arguments here, no additional discussion
as to the remaining objection is warranted.

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exclusion ambiguous. In fact, this court has evaluated and found identical exclusions clear and
unambiguous. See, Hernández v. Colegio y Noviciado Santa Maria del Camino, Inc., 2015 WL
1417052 (D.P.R. March 27, 2015).
Finally, plaintiffs ask the court to certify several issues listed on page 12 of their motion at
Docket No. 390. A closer look at the questions plaintiffs pose, however, confirms they are invoking
the certification mechanism for the Puerto Rico Supreme Court to essentially reiterate the rules of
statutory construction and interpretation of insurance policies, items not warranting certification. 6
b. MAPFRE’s Partial Objections at Docket No. 389
The Magistrate Judge recommended that MAPFRE’s request for judgment on the pleading
as to its duty to defend be denied (R&R at pp. 25-27). She reasoned that, in addition to the sexual
molestation incident, plaintiffs allege that Consejo faulted on a myriad of other issues such as,
failing to install cameras and proper lighting on the roof and making sure that the cameras on the
building were working properly. From that perspective, the claims would not be related to the
sexual assault of Lindsey Grasis yet provide an independent basis for establishing Consejo’s
negligence and activate MAPFRE’s duty to defend.
MAPFRE agrees with the Magistrate Judge’s conclusions that: (i) an insurer’s duty to
provide defense is more extensive and broader that its duty to indemnify; and (ii) an insurer’s duty
to defend a lawsuit is separate and distinct from the insurer’s duty to indemnify (Docket No. 389
at p. 3). Nevertheless, it avers that careful consideration of the remainder allegations against

6 The remaining discussion as to the legal basis to offset or reduce a jury damages award, following dismissal of the Third Party
Complaint against WPI (an absent potential tortfeasor) is premature. As such, it will be evaluated at the proper time.

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Consejo in the Second Amended Complaint under the same standard correctly announced by the
Magistrate Judge confirms that there is no duty to defend Consejo for these allegations.
Review of MAPFRE’s Policy shows that, absent the claims related to the sexual assault,
the remaining allegations against Consejo for (i) lack of security cameras installed on the roof
(Docket No. 71 at ¶¶ 70-72); (ii) proper lighting (id. at ¶ 73); and (iii) for failure to verify that the
cameras on the building were working properly (id. at ¶ 75), do not fall within the scope of
coverage. As the Magistrate Judge recognized, an insurer’s duty to defend depends on whether
the allegations of the complaint, read liberally, state facts that would be covered by a liability
policy if proven true. See, R&R at p. 25 (and cases cited therein). Yet in this case, MAPFRE’s
Policy is designed to cover damages because of “body injury” or “property damage,” to which the
insurance policy applies. 7
As relevant here, if the alleged damage does not result from “bodily injury” coverage will
not be afforded under the Policy, regardless of the application of any of the exclusions. 8 And it
follows that absent the sexual assault of Lindsey Grasis, the remaining allegations against Consejo,
standing alone, would not trigger the Policy at issue. Thus, the court will not adopt the portion of
the R&R pertaining to MAPFRE’s duty to defend.

7 The Policy at issue provides, in its relevant part, as follows:
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property
damage” to which the insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those
damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property
damage” to which this insurance does not apply. See, Docket No. 121, Exh. 1 at 100. Because there is no claim for property
damages in the Second Amended Complaint, MAPFRE limited its discussion to the term “bodily injury” (Docket No. 389 at p. 5
n.1).
8

Bodily injury means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any
time (Docket No. 121, Exh. 1 at p. 112).

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c. Consejo de Titulares’ Objections at Docket No. 392.
Consejo’s objections essentially question the Magistrate Judge’s conclusion that Lindsey
Grasis was under the “care, custody or control” of the Ashford Imperial. Given that: (1) the court
agrees with the Magistrate Judge’s conclusion regarding this matter as set in Section III.A of this
Memorandum and Order; 9 and (ii) as the record stands, Consejo has not offered a valid reason as
to why the R&R findings in this regard should be rejected, the court is not persuaded by Consejo’s
objections. 10 The R&R concludes that Lindsey Grasis was raped. Consejo clarifies that it only
admitted this statement for purposes of the pending dispositive motion, but not for trial purposes
(Docket No. 392 at pp. 7-8). As the R&R does not qualify the conclusion, Consejo wishes to note
its objection. The objection is noted. If the case survives the summary judgment stage, Consejo is
free to raise this matter before trial through a motion in limine.
IV.

CONCLUSION

Having made an independent, de novo, examination of the entire record, the Magistrate
Judge’s findings are well supported in the record and the law. For the same reason, the court
hereby ADOPTS IN PART AND REJECTS IN PART the Magistrate Judge’s report as stated
herein, and, accordingly, GRANTS WPI’s Motion for Summary Judgment and MAPFRE’s
Motion for Judgment on the Pleadings.
SO ORDERED.
In San Juan, Puerto Rico, this 30th day of March, 2017.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge
9

The Magistrate Judge provided specific, valid and correct reasons for her conclusion.

10

The court observes that Consejo filed a Motion for Summary Judgment at Docket No. 329, which is still pending.