City of Greenville v. Haywood

• Decision Date: 21 July 1998
• Docket Number: No. COA97-646.,COA97-646.
• Citation: City of Greenville v. Haywood, 502 S.E.2d 430, 130 N.C.App. 271 (N.C. App. 1998)
• Court: North Carolina Court of Appeals
• Parties: CITY OF GREENVILLE and National Casualty Company, Plaintiffs-Appellants, v. Connie Lorraine Smith HAYWOOD, Defendant-Appellee, and Donald Wade Foster, Defendant.

502 S.E.2d 430

130 NC App. 271

CITY OF GREENVILLE and National Casualty Company, Plaintiffs-Appellants, v. Connie Lorraine Smith HAYWOOD, Defendant-Appellee, and Donald Wade Foster, Defendant.

No. COA97-646.

Court of Appeals of North Carolina.

July 21, 1998.

Ward and Smith, P.A. by Kenneth R. Wooten and R. Stephen Camp, New Bern, for plaintiffs-appellants.

James G. Billings, Raleigh, for defendant-appellee Connie Lorraine Smith Haywood. TIMMONS-GOODSON, Judge.

This declaratory judgment action arises out of a sexual assault upon defendant Connie Lorraine Smith Haywood by an employee of plaintiff City of Greenville, North Carolina (hereinafter "City"). On 29 August 1993, Ms. Haywood was sexually assaulted when defendant Donald Wade Foster, a City police officer, was dispatched to her apartment to investigate a break-in. After conducting a partial investigation of the break-in, defendant Foster sodomized Ms. Haywood. Foster was subsequently found guilty of second degree sexual offense in violation of section 14-27.5(a) of the North Carolina General Statutes, and is presently incarcerated.

In August 1994, Ms. Haywood initiated a personal injury action (94CVS8309) against Foster for injuries sustained during the 29 August 1993 sexual assault. The City is not a party to Ms. Haywood's action against Foster. Further, default judgment has been entered against Foster in that action.

In November 1995, plaintiffs City and National Casualty Company (hereinafter "National") instituted this declaratory judgment action and, subsequently, moved for summary judgment, denying that National provided coverage for the sexual assault of Ms. Haywood and that it had a duty to defend Foster in Ms. Haywood's civil action. Notably, default judgment was also entered against Foster in the instant case. Ms. Haywood filed a "response" to plaintiffs' complaint, and thereafter, a cross-motion for summary judgment. Both parties' motions were heard by Judge W. Russell Duke, Jr. during the 7 April 1997 civil session of Pitt County Superior Court. By judgment entered 10 April 1997, Judge Duke granted Ms. Haywood's motion for summary judgment and denied plaintiffs' motion. Plaintiffs appeal.

Plaintiffs bring forth but one assignment of error on appeal, by which they argue that the trial court erred in holding that National's insurance policy provides coverage for sodomy. For the reasons discussed herein, we conclude that there are no genuine issues of fact remaining for trial in this matter, and accordingly, this case may be appropriately decided by summary judgment. Further, we conclude that National's policy provides coverage for Foster's 29 August 1993 sexual assault of Ms. Haywood, and accordingly, affirm the entry of summary judgment for Ms. Haywood.

In September 1992, the City purchased an insurance policy from National. This policy, which was in effect from 1 October 1992 through 1 October 1993, provided as follows:

The Company [ (National) ] will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as damages because of WRONGFUL ACT(S) which result in:

A) PERSONAL INJURY

B) BODILY INJURY

C) PROPERTY DAMAGE

caused by an OCCURRENCE and arising out of the performance of the INSURED'S duties to provide law enforcement and/or other departmentally approved activities, as declared in the Application ....

"Insured" is defined in the policy to "mean[] the NAMED INSURED [i.e., plaintiff City] and all full or part-time and all auxiliary or volunteer law enforcement officers of the NAMED INSURED." In addition, the term "occurrence" is defined as "an event, including continuous or repeated exposure to conditions, which results in PERSONAL INJURY, BODILY INJURY or PROPERTY DAMAGE sustained, during the policy period, by any person or organization and arising out of the INSURED'S law enforcement duties." Finally, the policy's definition of "personal injury" includes assault and battery. However, the policy expressly excludes coverage for "damages arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any INSURED[.]"

In deciding whether these above-listed provisions of National's policy afford coverage for Ms. Haywood's 29 August 1993 sexual assault, we are guided by well-established rules of insurance policy construction. First, "an insurance policy is a contract between the parties which must be construed and enforced according to its terms." Graham v. James F. Jackson Assoc., Inc., 84 N.C.App. 427, 430, 352 S.E.2d 878, 880 (1987)(citing Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 152 S.E.2d 436 (1967)). The court is obliged to use the definitions supplied in the policy to determine the meaning of words contained in that policy. Durham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C.App. 152, 156, 426 S.E.2d 451, 453 (1993)(quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)). "In the absence of such definition[s], nontechnical words are to be given a meaning consistent with the sense in which they are used in ordinary speech [.]" Id. (quoting Wachovia Bank & Trust Co.,276 N.C. at 354,172 S.E.2d at 522).

"An ambiguity exists when the language used in the policy is susceptible to different, and perhaps conflicting, interpretations." McLeod v. Nationwide Mutual Ins. Co., 115 N.C.App. 283, 290, 444 S.E.2d 487, 492, disc. review denied, 337 N.C. 694, 448 S.E.2d 528 (1994). Any ambiguity must be strictly construed in favor of the insured. Maddox v. Colonial Life & Accident Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981). "`Exclusions from and exceptions to undertakings by the company are not favored, and are to be strictly construed to provide the coverage which would otherwise be afforded by the policy.'" Durham City Bd. of Education, 109 N.C.App. at 156, 426 S.E.2d at 453 (quoting Maddox, 303 N.C. at 650, 280 S.E.2d at 908).

It is uncontroverted that Foster is an "insured" within the provision of the National Casualty policy. However, plaintiffs contend that the 29 August 1993 sexual assault on Ms. Haywood does not constitute an "occurrence" within the meaning of National's policy.

First, plaintiffs argue that sodomy is not a personal injury as defined by the subject insurance policy. Ms. Haywood's complaint in her personal injury action alleges that Foster sodomized her, and that he was subsequently tried and found guilty of a second degree sexual offense in violation of section 14-27.5 of the General Statutes. While plaintiffs maintain otherwise, sodomy (a second degree sexual offense) does constitute a "personal injury" within the meaning of National's policy.

There may be both a civil and criminal action filed against one who commits an assault and battery. A "battery" is the offensive touching of the person of another without his/her consent, while an "assault" occurs when a person is put in apprehension of harmful or offensive contact, without any actual contact. Ormond v. Crampton, 16 N.C.App. 88, 191 S.E.2d 405 (1972); see also State v. Britt, 270 N.C. 416, 154 S.E.2d 519 (1967)(defining criminal "assault and battery," which violates now N.C. Gen.Stat. § 14-33 (Cum.Supp.1997)). It then necessarily follows that sodomy is but an extremely aggravated form of "assault and battery," which is defined to be a "personal injury" in National's policy. See State v. Wortham, 80 N.C.App. 54, 341 S.E.2d 76 (1986)(discussing assault on a female and attempted rape); State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971)(discussing the aggravated nature of felonious assault); State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988)(discussing aggravated nature of assault with deadly weapon). The fact that Foster was convicted of a second degree sexual offense, and not an offense specifically denominated an "assault and battery," and that assault and battery is not a lesser included offense of sodomy, i.e., second degree sexual offense, is not determinative in this case. Therefore, this argument fails.

Plaintiffs next contend that Ms. Haywood's sexual assault did not "arise out of the performance of the INSURED'S law enforcement duties." Significantly, plaintiffs use the phrases "arise out of" and "in the scope of" interchangeably. The two phrases are, however, quite distinct.

While policy provisions excluding coverage are strictly construed in favor of the insured, those provisions which extend coverage "must be construed liberally so as to provide coverage, whenever possible by reasonable construction." State Capital Insurance Co. v. Nationwide Mutual Insurance Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986). Because the policy does not define "arising out of," we must apply the ordinary meaning of this phrase. See Durham City Bd. of Education,109 N.C.App. at 156,426 S.E.2d at 453 (quoting Wachovia Bank & Trust Co.,276 N.C. at 354,172 S.E.2d at 522). In State Capital Ins., the North Carolina Supreme Court interpreted the meaning of the term "arising out of," as used in a compulsory insurance statute and as applied to an automobile insurance policy and applied a liberal construction. 318 N.C. 534,350 S.E.2d 66. Therein, the Supreme Court noted:

The words "arising out of" are not words of narrow and specific limitation but are broad, general, and comprehensive terms affecting broad coverage. They are intended to, and do, afford protection to the insured against liability imposed upon him for all damages caused by acts done in connection with or arising out of such use. They are words of much broader significance than "caused by." They are ordinarily understood to mean ... "incident to," or "having connection with" the use of the automobile.

Id. at 539, 350 S.E.2d at 69 (quoting Fidelity & Casualty Co. of N.Y. v. N.C. Farm Bureau Mutual Insurance Co., 16...