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Nationwide Mutual Fire Insurance Co. v. T.K.

December 13, 2005

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, PLAINTIFF,
v.
MR. AND MRS K., T.K., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

SYNOPSIS

Plaintiff insurance company seeks an entry of summary judgment in its favor declaring that it has neither a duty to defend nor a duty to indemnify homeowner policy holders who are being sued in connection with the alleged sexual harassment of a child by their son. Because the policy contains a sexual harassment exclusion and because the injuries at issue stem from the alleged sexual harassment there is no duty to defend or indemnify.

OPINION

Defendants Mr. and Mrs. K*fn1 have a homeowners' insurance policy ("the Policy") with Plaintiff Nationwide Mutual Fire Insurance Company ("Nationwide"). Mr. and Mrs. K and their minor child T.K. ("the K family") have requested that Nationwide provide them with a defense and indemnity with respect to an action filed against them by Mr. and Mrs. R and their minor child K.R. ("the R family"). In that underlying Complaint, the R family alleges that numerous classmates, including T.K., sexually harassed K.R. and that, as a consequence, the R family suffered mental, emotional and financial harm. Both K.R. and her parents allege that T.K. was negligent in failing to stop sexually harassing her and that Mr. and Mrs. K were negligent in failing to appropriately train T.K. not to harass peers.

Nationwide agreed to provide a defense with regard to these allegations, pursuant to a reservation of rights. The pending litigation stems from that reservation of rights - Nationwide seeks a declaration that it has no duty to defend or provide coverage. Pending is Nationwide's Motion for Summary Judgment.*fn2 While Nationwide offers several arguments in support of the entry of judgment in its favor, I need only focus on one. As Nationwide represents, the Policy contains a sexual harassment exclusion. Nationwide argues that all of the injuries complained of by the R family stem from the alleged sexual harassment and, as such, coverage should be denied.

After careful consideration, and for the reasons set forth below, I agree with Nationwide that the sexual harassment exclusion applies to the claims set forth in the underlying Complaint. Consequently, the Policy at issue does not obligate Nationwide to defend or indemnify the K family in conjunction with the sexual harassment suit.

STANDARD OF REVIEW

Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

ANALYSIS

According to the Policy language, Nationwide agrees to pay for any "bodily injury" which results from an accident. See Docket No. 48-2, p. G1. The Policy defines "bodily injury" as: bodily harm, including resulting care, sickness or disease, loss of services or death. Bodily injury does not include emotional distress, mental anguish, humiliation, mental distress or injury, or any similar injury unless the direct result of bodily harm.

Id. The Policy further excludes from the definition of "bodily injury" any injury:

l. resulting from acts or omissions relating directly or indirectly to sexual molestation, physical or mental abuse, harassment, including sexual ...


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