United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT [DKTS. 39 & 47]
VANESSA L. BRYANT UNITED STATES DISTRICT
a declaratory judgment action brought by Markel Insurance Co.
(“Markel Insurance” or “Plaintiff”)
seeking a declaration that its general liability insurance
policy affords no coverage to Ebner Camps, Inc. (“Ebner
Camps” or “Defendant”) for liability it may
have to a plaintiff in a civil action pending in state court
brought by a former camper alleging that in 1987 he was
sexually assaulted by a counselor at Camp Awosting owned by
Ebner Camps. For the following reasons, the Court GRANTS
summary judgment in favor of Markel Insurance.
The State Case
early 2015, an individual proceeding under the pseudonym John
Doe initiated a civil action against Ebner Camps.
See [Dkt. 47-1 ¶ 7 (Defs.' D. Conn. L. R.
56(a)(1) Stmt.); Dkt. 50-1 (Pl.'s D. Conn. L. R.
56(a)(2) Stmt.) ¶ 7; Dkt. 48-4 (Opp'n Pl.'s
Summ. J. Ex. D, Marshal's Return) (stating Ebner Camps
was served with John Doe's complaint on Feb. 17, 2015);
Dkt. 41-4 (D. Conn. L. R. 56(a)(1) Stmt. Ex. C, State Court
Docket) at 3 of PDF (indicating complaint was filed on Jan.
26, 2015)].The state court complaint alleges that in
1987 John Doe attended summer camp at Camp Awosting, which is
owned and controlled by Ebner Camps. See [Dkt. 47-1
¶¶ 9-10; Dkt. 50-1 ¶¶ 9-10]. Ebner Camps
allegedly employed John Murphy as a camp counselor, and over
the course of the 1987 summer he sexually assaulted and
battered John Doe on numerous occasions. [Dkt. 47-1
¶¶ 11-12; Dkt. 50-1 ¶¶ 11-12]. The state
court complaint raises allegations of negligence, negligent
hiring and retention, negligent supervision, breach of
fiduciary duty, and negligent infliction of emotional
distress against Ebner Camps, all which pertain to the
alleged sexual assault and battery. See [Dkt. 47-1
¶¶ 14-18; Dkt. 50-1 ¶¶ 14-18].
Insurance issued an insurance policy to Ebner Properties, LLC
with an effective date of March 1, 2014. See [Dkt.
47-1 ¶¶ 1-2; Dkt. 50-1 ¶¶ 1-2]. The
policy period expired March 1, 2015. See [Dkt. 47-1
¶ 2; Dkt. 50-1 ¶ 2]. Defendant Ebner Camps, Inc. is
a named insured under the policy. [Dkt. 47-1 ¶ 6; Dkt.
50-1 ¶ 6]. The policy contained Commercial General
Liability Coverage and certain endorsements including Abuse
or Molestation Coverage, Miscellaneous Professional Liability
Coverage Endorsement, and Punitive Damages Exclusion. [Dkt.
47-1 ¶¶ 3-5; Dkt. 50-1 ¶¶ 3-5; Dkt. 48-2
(Opp'n Pl.'s Mot. Summ. J. Ex. B (Markel Policy) at
EBNER000200, -0218]. The Commercial General Liability
Extension of Declarations lists Camp Awosting at a premises
owned, rented, or occupied by the named insured and
designates the Abuse and Molestation Coverage to apply to
Camp Awosting. [Dkt. 47-1 ¶ 19; Dkt. 50-1 ¶ 19;
Dkt. 48-2 at -0154].
policy contains several provisions relevant to the case at
hand. First, the CGL Coverage states that Markel Insurance
“will pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily
injury' . . . to which the insurance applies” but
has “no duty to defend the insured against any
‘suit' seeking damages for ‘bodily
injury' . . . to which this insurance does not
apply.” [Dkt. 48-2 at -0157]. “Bodily
injury” is defined as “bodily injury, sickness or
disease sustained by a person, including death resulting from
any of these at any time.” Id. at -0167.
Markel Insurance reserves a right to “at [its]
discretion, [to] investigate any ‘occurrence' and
settle any claim or ‘suit' that may result.”
Id. at -0157.
is defined as “an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions.” Id. at -0169. The CGL Coverage
limits the application of insurance coverage to “bodily
injury” if three conditions are satisfied. Those
conditions are if “(1) [t]he ‘bodily injury'
. . . is caused by an ‘occurrence' that takes place
in the ‘covered territory, '; (2) [t]he bodily
injury' . . . occurs during the policy period;
and (3) [p]rior to the policy period, no insured listed under
Paragraph 1 of Section II - Who is an Insured and no
‘employee' authorized by you to give or receive
notice of an ‘occurrence' or claim, knew that the
‘bodily injury' . . . had occurred, in whole or in
part.” Id. at -0157 (emphasis added). This
section explicitly states that “[v]arious provisions in
this policy restrict coverage” and directs the insured
to “[r]ead the entire policy carefully to determine
rights, duties and what is and is not covered.”
Markel Insurance added an endorsement provision titled Abuse
or Molestation Coverage, which “modifies insurance
provided under the [CGL Coverage].” See Id. at
-0190. This endorsement states that “the provisions of
the CGL Coverage Form apply unless modified by this
endorsement.” Id. (emphasis added). Under
the Abuse or Molestation Coverage endorsement, Markel
pay those sums the insured becomes legally obligated to pay
as damages that result in ‘bodily injury' . . .
because of abuse, molestation or exploitation arising from
negligent employment, training, investigation, reporting to
the proper authorities, or failure to so report, or retention
and supervision of a person for whom any insured is or
ever was legally responsible. Coverage includes the
actual, alleged, or threatened abuse, molestation, or
exploitation by anyone of any person while in the care,
custody or control of any insured.
Id. (emphasis added). The Abuse or Molestation
Coverage endorsement also includes “mental anguish or
emotional distress” as types of “bodily
injury.” Id. The endorsement, however,
includes Limits of Insurance such that “[n]o coverage
in this policy is provided for abuse, molestation or
exploitation except as provided herein, under this
endorsement.” Id. at -0191. “Multiple
incidents of abuse, molestation or exploitation involving a
person which takes place over multiple policy periods for
which this coverage is provided by us shall be deemed as one
‘occurrence' and shall be subject to the coverage
and limits in effect at the time of the first
incident.” Id. Monetary limitations are $1,
000, 000 per person, per occurrence or $2, 000, 000 aggregate
per policy period. Id. at -0190.
also exists a Miscellaneous Professional Liability Coverage
Endorsement that modifies certain provisions of the CGL
Coverage. See Id. at -0199. This endorsement covers
damages “arising out of a covered ‘wrongful
act' to which this insurance applies or ‘wrongful
act(s)' of others for which you are liable.”
Id. The endorsement expressly states, “This
insurance does not apply to: . . . (3) [l]iability resulting
from any actual, threatened, or alleged abuse, molestation or
sexual conduct.” Id.
the policy includes a Punitive Damages Exclusion endorsement,
which modifies insurance provided, in relevant part, under
the CGL Coverage Part. See Id. at -0218. This
endorsement states, “It is understood and agreed that
coverage under this policy does not apply to punitive or
exemplary damages, nor to fines, ...