39 Fla. L. Weekly D2383a
Trial court properly found that policy did not cover insureds for their
negligent supervision of child who was allegedly sexually battered by insureds’
child while in the care of insureds — Policy exclusion is clear and
unambiguous
Appellees. 5th District. Case No. 5D13-3358. Opinion filed November 14, 2014.
Appeal from the Circuit Court for Marion County, Steven G. Rogers, Judge.
Counsel: William H. Rogner, of Hurley, Rogner, Miller Cox, Waranch &
Westcott, P.A., Winter Park, and Dock A. Blanchard, of Blanchard, Merriam, Adel
& Kirkland, P.A., Amicus Curiae, Ocala, for Appellant. Hunter A. Hall, of
Hall Keener, P.A., Tampa, for Appellees.
appeals a final summary judgment in favor of Modern USA Insurance Company, who
filed a declaratory judgment action, seeking a declaration that its homeowner’s
insurance policy did not cover its insureds, Alexa Irizarry and Jose L. Yambo,
Sr., for their negligent supervision of A.C. Dueno had filed a complaint against
Irizarry and Yambo alleging that A.C. was sexually battered by J.Y., another
minor, while in Irizarry and Yambo’s care. J.Y. is the son of Irizarry and
Yambo, and is also an insured under the policy. We agree with the trial court
that the sexual molestation exclusion in the homeowner’s policy is unambiguous,
and excluded coverage for injury arising out of J.Y.’s alleged sexual
molestation of A.C. The facts and policy language at issue in this case appear
to be materially indistinguishable from those addressed in Valero v. Florida
Insurance Guaranty Association, Inc., 59 So. 3d 1166 (Fla. 4th DCA 2011),
which the trial court properly followed in granting summary judgment. Our review
is de novo. Chandler v. Geico Indem. Co., 78 So. 3d 1293 (Fla. 2011).
based on Premier Insurance Co. v. Adams, 632 So. 2d 1054 (Fla. 5th DCA
1994) and Mactown, Inc. v. Continental Insurance Co., 716 So. 2d 289
(Fla. 3d DCA 1998). Appellant also argues for reversal based upon
Westmoreland v. Lumbermens Mutual Casualty Co., 704 So. 2d 176 (Fla. 4th
DCA 1997), a case not addressed in Valero. Appellant also argues that the
sexual molestation exclusion in this case should not apply because her complaint
alleges injury arising out of sexual battery, not sexual molestation. Finally,
Appellant attempts to paint Valero as an ill-reasoned anomaly. We will
briefly address each argument, but note generally that our affirmance in this
case rests upon our conclusion that the policy exclusion at issue here is clear
and unambiguous. See, e.g., Taurus Holdings, Inc. v. U.S. Fid. &
Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (“[I]f a policy provision is
clear and unambiguous, it should be enforced according to its terms whether it
is a basic policy provision or an exclusionary provision.” (quoting Hagen v.
Aetna Cas. & Sur. Co., 675 So. 2d 963, 965 (Fla. 5th DCA 1996))). The
exclusion reads:
SECTION II — EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — Medical
Payments to Others [do not apply to “bodily injury” or “property
damage”]:
. . . .
k. Arising out of actual or alleged sexual molestation or
harassment, corporal punishment, or physical or mental abuse; . . .
.
apply to exclude coverage for a negligent supervision claim, based upon an
ambiguity in that policy. Premier, 632 So. 2d at 1055-57. In that case,
as in Valero and this case, the plaintiffs sued two named insureds,
alleging that their minor son (also a named insured) sexually abused another
child while in their care. The ambiguity in the Premier policy was
created by language in a severability clause (stating that the insurance applied
“separately to each insured”) which arguably conflicted with the intentional act
exclusion (which excluded any injury “intended by any insured”). Id. The
Premier panel found that the severability clause essentially negated the
intentional act exclusion for either a cause of action that did not apply to all
insureds or an intentional act that only applied to one insured. Id. In
this case, as in Valero, the exclusion at issue does not exclude injury
caused by another insured, but by any act of sexual molestation (irrespective of
whether the person causing the injury is an insured or not). Given the broad
wording of the sexual molestation exclusion in this case, there is no ambiguity
created by the severability clause in the policy.
intentional tort exception in a general liability policy did not bar a claim
against an employer for negligent retention of an employee who battered another
employee. 716 So. 2d at 291-93. It reasoned that while the intentional act
exclusion “covers a number of intentional torts” it did “not specifically
exclude negligent acts . . . [such that from] the ‘ordinary person perspective’
[the] exclusion is, at best, ambiguous, and must be construed in favor of
coverage.” Id. at 292 (citations omitted). The Valero panel found
“Mactown to be of limited assistance,” reasoning: “There [in
Mactown], our sister court addressed the exclusion at issue in isolation
and found the exclusion to be ambiguous. Here, we have been able to consider the
exclusion at issue in context with the entire exclusions section and have found
the exclusion to be unambiguous.” 59 So. 3d at 1169. Although we also find
Mactown to be unpersuasive, we agree with Appellant that the case could
be read as essentially finding an ambiguity in the “arising out of” language at
issue in that policy, which was even broader than similar language at issue here
and in Valero. The intentional act exclusion considered in Mactown
excluded claims “based on, arising out of, directly or indirectly resulting
from, in consequence of, or in any way involving any actual or alleged . . .
battery . . . .” To us, that seems as clear as the exclusion for claims
“[a]rising out of actual or alleged sexual molestation” at issue here and, as
such, should have barred recovery for injuries attributable to a battery, even
if pursued under a negligent retention theory. To the extent that Mactown
can be read as holding the “arising out of” language to be ambiguous, we believe
that the holding has been superseded by Taurus Holdings, which
essentially found similar “arising out of” language in an insurance policy
exclusion provision to be unambiguous. 913 So. 2d at 532-33 (quoting with
approval the Fifth District Court’s conclusion in Hagan that the term
“arising out of” is “unambiguous[;]” is “broader in meaning than the term caused
by[;]” and “means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’
‘flowing from,’ ‘incident to’ or ‘having a connection with’ ”); see also
Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 787 (Fla. 2004) (“Florida
has long followed the general rule that tort law principles do not control
judicial construction of insurance contracts. Insurance contracts are construed
in accordance with the plain language of the policies as bargained for by the
parties.”).
in Florida that appeared to expressly find the “arising out of” language in an
insurance policy to be ambiguous. The Florida Supreme Court fully addressed
Westmoreland in Taurus Holdings, explaining:
One Florida case, however, has found the “arising out of” language
ambiguous. In Westmoreland v. Lumbermens Mutual Casualty Co., 704 So. 2d
176 (Fla. 4th DCA 1997), the Fourth District interpreted a policy that excluded
claims for “ ‘bodily injury’ . . . arising out of the ownership, maintenance,
use, loading or unloading of motor vehicles.” Id. at 178. The court noted
that the term “arising out of” was not defined and stated that “[w]here a
critical term is not defined in an exclusionary clause of the policy, it will be
liberally construed in favor of an insured.” Id. at 180. The court found
the policy ambiguous and defined “arising out of” to require a showing of
proximate causation. The Fourth District has since clarified, however, that the
ambiguity found in the Westmoreland policy was a product of the “arising
out of” language combined with other policy language. See Estate of Bombolis
v. Cont’l Cas. Co., 740 So. 2d 1229, 1230 (Fla. 4th DCA 1999). As clarified,
therefore, Westmoreland does not hold that the “arising out of” language,
standing alone, is ambiguous.
“[o]ther courts applying Florida law disagreed with Westmoreland.”
Id. at 533 n. 2. (citations omitted). More recently, a federal court
applying Florida law more bluntly, but accurately, concluded that any “argument
[based] on Westmoreland must fail as it is no longer good law.”
Continental Cas. Co. v. City of Jacksonville, 654 F. Supp. 2d 1338, 1346
n. 2 (M.D. Fla. 2009) (citations omitted).
only excluded injury arising out of a sexual molestation, and not a sexual
battery (as alleged in her complaint), we conclude that the term sexual
molestation unambiguously includes any unwanted sexual touching. See
generally 3 Insurance Claims and Disputes § 11:23B (6th ed.) (“Modern
liability insurance policies often contain exclusions eliminating coverage for
injuries arising out of sexual molestation or abuse. When the words ‘sexual
molestation’ and ‘abuse’ are not defined, those words should be given their
dictionary definitions.”).1
Fourth District’s interpretation of the sexual molestation exclusion involved in
that case is “an anomaly that is inconsistent with this District, other
Districts, and other jurisdictions.” General research on this issue readily
reveals Appellant’s assertion to be inaccurate. For example, one commentator has
noted Valero as one of many cases reaching similar conclusions, as
follows:
Sexual abuse or molestation exclusions are becoming more common in
liability policies, particularly in homeowners policies and in CGL policies
issued to businesses or organizations that may be susceptible to sexual abuse or
molestation claims. The specific language in an exclusion can vary significantly
from policy to policy, so again it is important to evaluate the exclusion
language carefully. For example, a sexual abuse or molestation exclusion may
preclude coverage for injury from sexual abuse or molestation, regardless of who
engaged in the alleged conduct. If sexual abuse or molestation caused an injury,
then a policy with that exclusion would not cover those claims. Most courts have
upheld the application of these types of exclusions as drafted. See, e.g.,
Valero v. Florida Ins. Guar. Ass’n, Inc., 59 So. 3d 1166, 1168 (Fla. Ct.
App. 2011) (rejecting the insured’s argument that the sexual molestation
exclusion, which excluded coverage for bodily injury “arising out of sexual
molestation,” did not apply to claims of negligent supervision, the court found
the plain language of the exclusion precluded coverage for injury arising out of
sexual molestation “by any person”); Hingham Mut. Fire Ins. v. Smith, 865
N.E.2d 1168, 1173 (Mass. Ct. App. 2007) (excluding coverage for all the
insureds, despite the severability clause, because the exclusion precluded
coverage for bodily injury arising out of sexual molestation); Philbrik v.
Liberty Mut. Fire Ins. Co., 934 A.2d 582, 585-86 (N.H. 2007) (upholding the
application of the exclusion for all claims because they originated from the
sexual abuse); Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185, 1196 (R.I.
2002) (“if the alleged sexual molestation is a cause of the claimed bodily
injuries, then the existence of other alleged negligence claims and proximate
cause is of no moment — the bodily injuries alleged are causally connected to
or ‘arise out of’ the sexual molestation, and are thereby excluded from
coverage”); Allstate Ins. Co. v. Bates, 185 F. Supp. 2d 607, 613
(E.D.N.C. 2000) (excluding coverage for negligent coinsured reasoning that
“without the molestation there would be no injury and thus, no basis for the
negligence claims”). Some courts, however, have refused to apply the exclusion
as written. See, e.g., Am. Family Mut. Ins. Co. v. Bower, 752 F. Supp. 2d
957 (N.D. Ind. 2010) (finding that a claim against parents for failure to
intervene to stop molestation was separate from the sexual molestation and,
therefore, not excluded by the sexual molestation exclusion, which precluded
coverage for injury “arising out of or resulting from any actual or alleged
sexual molestation or contact”).
Nonparticipants, 55 NO. 5 DRI For the Defense 70 (2013). Similarly, Couch on
Insurance provides in pertinent part:
[A] policy may contain specific exclusionary clauses or endorsements
that exclude coverage of sexual abuse, harassment, molestation, or other similar
claims. [Footnote omitted]. Coverage for sexually related claims will be
excluded if the policy language is the clear and unambiguous language. [Footnote
omitted].
A policy may state that no coverage is provided to anyone who is
connected with the insured who commits an act of sexual abuse. Under these
circumstances, there is no coverage for all insureds under the policy for claims
arising from an act of sexual abuse, even though the policy contains a
severability clause providing that each insured would be regarded as having
separate coverage. [noting: American Family Mutual Ins. Co. v.
Copeland-Williams, 941 S.W.2d 625, 629-30 (Mo. Ct. App. E.D. 1997);
Bagley v. Monticello Ins. Co., 430 Mass. 454, 457, 720 N.E.2d 813, 816,
(1999); Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 182-83
(N.D. 1994); Ristine ex rel. Ristine v. Hartford Ins. Co. of Midwest, 195
Or. App. 226, 97 P.3d 1206, 1209-10, (2004); Caroff v. Farmers Ins. Co. of
Wash., 98 Wash. App. 565, 989 P.2d 1233, 1237, (Div. 1 1999). See also
Neff ex rel. Landauer v. Alterra Healthcare Corp., 271 Fed. App’x. 224, 226
(3rd Cir. 2008); Hingham Mut. Fire Ins. Co. v. Smith, 69 Mass. App. Ct.
1, 8, 865 N.E.2d 1168, 1173 (2007) (holding that a severability clause did not
affect the applicability of an exclusion for bodily injuries “arising out of”
sexual molestation, and thus no coverage was available for actions against
parents of perpetrator for negligent supervision, as the claim against them had
its basis in the sexual molestation).]
“molestation” as “[t]he act of making unwanted or indecent advances to or on
someone, esp. for sexual gratification.” Black’s Law Dictionary (15C)
(9th ed. 2009). Similarly, Merriam-Webster dictionary defines “sexual” as “of,
relating to, or involving sex”, and “molest” (“molestation” being the noun form)
as “to make annoying sexual advances to; especially: to force physical
and usually sexual contact on.” Merriam-Webster’s Dictionary,
http://www.merriam-webster.com/dictionary/sexual,
http://www.merriam-webster.com/dictionary/molest (last visited October 21,
2014).
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