Board of Educ. of East Syracuse-Minoa Cent. School Dist. v. Continental Ins. Co.

• Decision Date: 19 November 1993
• Docket Number: SYRACUSE-MINOA
• Citation: 198 A.D.2d 816,604 N.Y.S.2d 399
• Parties: , 63 Fair Empl.Prac.Cas. (BNA) 1279, 87 Ed. Law Rep. 562 BOARD OF EDUCATION OF the EASTCENTRAL SCHOOL DISTRICT, Respondent, v. CONTINENTAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 399

604 N.Y.S.2d 399

198 A.D.2d 816, 63 Fair Empl.Prac.Cas. (BNA) 1279,

87 Ed. Law Rep. 562

BOARD OF EDUCATION OF the EAST SYRACUSE-MINOA CENTRAL SCHOOL DISTRICT, Respondent, v. CONTINENTAL INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 19, 1993.

Saperston & Day, P.C. by Anthony Piazza, Rochester, for appellant.

O'Hara & O'Connell (Sharon A. Sutter, of counsel), Syracuse, for respondent.

Before PINE, J.P., and LAWTON, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

Plaintiff Board of Education of the East Syracuse-Minoa Central School District ("School District") commenced this declaratory judgment action against its insurer Continental Insurance Company ("Continental") claiming that Continental had a duty to defend it in a sexual harassment and retaliatory discharge action pending in District Court. In the Federal action, plaintiff Michele A. Locastro alleged that the principal of the elementary school where she taught sexually harassed her from approximately October 1989 through January 1990. She asserted causes of action against the School District based on its failing to prohibit sexual harassment, placing retaliatory letters in her personnel file, creating an offensive work environment and wrongfully terminating her employment. The School District demanded that Continental defend it in the Federal action. Continental refused and the School District commenced this declaratory judgment action.

The School District moved for summary judgment against Continental on the ground that Continental failed to comply with the terms of the party's policy of insurance. Continental cross-moved for summary judgment on several grounds, including that the allegations against the School District were outside the scope of its policy of insurance. Supreme Court granted the School District's motion for summary judgment and denied Continental's cross motion for summary judgment. We reverse.

The allegations against the School District in the Federal action do not constitute an "occurrence" within the meaning of its general liability policy. An "occurrence" is defined in the policy as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions". There is nothing accidental about the charges contained in the complaint (see, Spinosa v. Hartford Fire Ins. Co., 90 A.D.2d 574, 575, 456 N.Y.S.2d 140; see also, Mary & Alice Ford Nursing Home Co. v. Fireman's Ins. Co., 86 A.D.2d 736, 446 N.Y.S.2d 599, affd 57 N.Y.2d 656, 454 N.Y.S.2d 74, 439 N.E.2d 883). Sexual harassment, like sexual abuse and child abuse, is intentional in nature (see, Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 581 N.Y.S.2d 142, 589 N.E.2d 365; Doe v. Allstate Ins. Co., 187 A.D.2d 181, 185, 596 N.Y.S.2d 603, lv denied 82 N.Y.2d 652, 601 N.Y.S.2d 581, 619 N.E.2d 659). While the complaint contains allegations that "the District knew or should have known of the complained of conduct" and "failed to stop or prevent such conduct," those allegations do not change the gravamen of the complaint from one alleging intentional acts and violations of Federal and State statutes to one involving negligent conduct (see, e.g., New York Cas. Ins. Co. v. Ward, 139 A.D.2d 922, 527 N.Y.S.2d 913).

Where, as here, it can be determined from the factual allegations that "no basis for recovery within the coverage of the policy is stated in the complaint, [a court] may sustain [the insurer's] refusal to defend" (Lionel Freedman, Inc. v. Glens Falls Ins. Co., 27 N.Y.2d 364, 368, 318 N.Y.S.2d 303, 267 N.E.2d 93; see, e.g., Contracting Plumbers' Coop. Restoration Corp. v. Hartford Acc. & Ind. Co., 59 A.D.2d 921, 922, 399 N.Y.S.2d 255, af...