Wohlforth v. American Casualty Co. of Reading, Pennsylvania

          RULING AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS

          Victor A. Bolden, United States District Judge

         On July 25, 2017, American Casualty Company of Reading, Pennsylvania (“Defendant” or “American Casualty Co.”), a Pennsylvania corporation with its principal place of business in Illinois, removed this case from the Superior Court for the Judicial District of New London on the basis of diversity jurisdiction. Not. of Removal ¶¶ 6-7, ECF No. 1. On September 15, 2017, American Casualty Co. moved for judgment on the pleadings. Mot. for J. on Pleadings, (“Def.'s Mot.”), ECF No. 24.

         For the following reasons, American Casualty Co.'s motion for judgment on the pleadings is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         On May 20, 2015, a jury convicted Joseph L. Baribeau of fourth degree sexual assault. Criminal Record, Answer Ex. E, ECF No. 13-5.

         1. The Underlying State Court Civil Action

         On July 22, 2015, Ms. Wohlforth filed a civil complaint in Connecticut Superior Court. State Compl., Answer Ex. A, ECF No. 13-1. On September 4, 2015, she filed an amended complaint, asserting one count of assault and another of negligence. State Am. Compl., Answer Ex. B., ECF No. 13-2.

         Ms. Wohlforth alleged that, on January 8, 2014, during a pre-arranged massage therapy appointment, Mr. Baribeau “inappropriately touched [her] in her vaginal area and digitally penetrated [her] in violation of Section 53a-73a of the Connecticut General Statues.” Id. ¶ 2. As a result of that assault, she allegedly “suffered upset, embarrassment and anguish, which effect of the trauma are likely to be permanent.” Id. ¶ 3. She alleged that she “has received and will receive mental health therapy for the trauma she suffered.” Id. ¶ 4.

         In the alternative, she alleged that Mr. Baribeau “negligently touched [her] in her vaginal area and [ ] failed to use proper techniques to prevent such intrusion into sensitive private areas.” Id. at 3. The negligent touching also allegedly caused her “upset, embarrassment and anguish which effects of the trauma are likely to be permanent.” Id.

         That lawsuit resulted in a judgment for Ms. Wohlforth of $195, 000.00 through a judgment by stipulation before a jury trial had begun. Compl. ¶ 6, Not. of Removal Ex. A, ECF No. 1-1; see also Wohlforth v. Baribeau, No. KNL-CV15-6024673-S, available at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=-KNLCV156024673S.

         2. The American Casualty Co. Insurance Policy

         Ms. Wohlforth seeks payment of her $195, 000 judgment from American Casualty Co. This insurance company allegedly insured Mr. Baribeau, who was, at all times relevant to her Complaint, an “enrolled member” of insurance policy HPG 0289955556, which American Casualty Co. issued to the American Massage Therapy Association.^[1] Compl. ¶¶ 3-4; see also ACCO Policy, Answer Ex. C, ECF No. 13-3. The relevant policy contains the following exclusion:

We will not defend any claim for, or pay any amounts, including claim expenses, based on, arising out of, or related to:

. . . any act of sexual intimacy, sexual molestation or sexual assault. We shall provide an enrolled member with a defense of such claim unless or until such act has been determined to have occurred, by any trial verdict, court ruling, regulatory ruling or legal admission, whether appealed or not. Such defense will not waive any of our rights under this Policy. Criminal proceedings are ...