Continental Cas. Co. v. Canadian Universal Ins. Co., Nos. 90-1406

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and WOODLOCK; BOWNES
• Citation: 924 F.2d 370
• Parties: 54 Fair Empl.Prac.Cas. 1606, 55 Empl. Prac. Dec. P 40,524, 65 Ed. Law Rep. 340 CONTINENTAL CASUALTY CO., Plaintiff, Appellee, v. CANADIAN UNIVERSAL INSURANCE CO., Defendant, Appellee. Appeal of the UNIVERSITY OF MASSACHUSETTS, Defendant. CONTINENTAL CASUALTY CO., Plaintiff, Appellee, v. CANADIAN UNIVERSAL INSURANCE CO., Defendant, Appellant. . Heard
• Docket Number: 90-1491,Nos. 90-1406
• Decision Date: 01 October 1990

Page 370

924 F.2d 370 54 Fair Empl.Prac.Cas. 1606,
55 Empl. Prac. Dec. P 40,524, 65 Ed. Law Rep. 340 CONTINENTAL CASUALTY CO., Plaintiff, Appellee,
v.
CANADIAN UNIVERSAL INSURANCE CO., Defendant, Appellee.
Appeal of the UNIVERSITY OF MASSACHUSETTS, Defendant.
CONTINENTAL CASUALTY CO., Plaintiff, Appellee,
v.
CANADIAN UNIVERSAL INSURANCE CO., Defendant, Appellant. Nos. 90-1406, 90-1491. United States Court of Appeals,
First Circuit. Heard Oct. 1, 1990.
Decided Jan. 25, 1991.

Page 371

Terence P. O'Malley with whom William E. Searson, Boston, Mass., was on brief, for University of Massachusetts.

Edward L. Kirby, Jr. with whom John D. Lychak, David J. Gorman and Hennessy, Killgoar & Ronan, Boston, Mass., were on brief, for Canadian Universal Ins. Co.

Patricia A. Gotschalk with whom John W. Scott, Drinker, Biddle & Reath, Washington, D.C., Terrance Hamilton and Casner & Edwards, Boston, Mass., were on brief, for Continental Cas. Co.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and WOODLOCK, District Judge. ^*

BOWNES, Senior Circuit Judge.

This is an appeal from a summary judgment order of the district court in a declaratory judgment action brought by plaintiff-appellee Continental Casualty Company ("CNA") against appellants Canadian Universal Insurance Company ("CUI") and the University of Massachusetts ("UMass", "the University"), which was insured by both companies. CNA sought a declaration that CUI was obligated to indemnify UMass for amounts paid to satisfy a judgment in Irvine v. University of Massachusetts, No. 80-2532-Z (D.Mass. Feb. 27, 1985) ("Irvine") and for the amount paid in settlement in Bagley v. Hoopes, No. 81-1126-Z (D.Mass. filed May 1, 1981) ("Bagley "). CUI denied coverage and counterclaimed that it was CNA that owed indemnification to UMass; UMass crossclaimed against CUI and counterclaimed against CNA seeking indemnification.

On motions for summary judgment filed by all parties, the district court granted CNA's motion with respect to the Irvine and Bagley coverage, granted CUI's motion with respect to Bagley, and denied UMass' motion with respect to both Irvine and Bagley. The court held: (1) that CUI was obligated to indemnify UMass for amounts paid to satisfy the Irvine judgment; (2) that to the extent CNA had already indemnified UMass for Irvine, CNA was entitled to reimbursement from CUI; and (3) that neither CNA nor CUI was obligated to indemnify UMass for the amounts paid to settle the Bagley claims. UMass appeals from the judgment as regards the Bagley claim and CUI appeals from the judgment as to the Irvine claim; the appeals have been consolidated.

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I. PROCEEDINGS IN DISTRICT COURT

Janice Irvine was employed as a staff supervisor and coordinator at the UMass Health Education Center ("HEC"), part of the Health Education and Information Program ("HEIP"). Dr. James Hoopes was the head of HEIP and Ms. Irvine's boss. According to the allegations of her complaint, Irvine obtained information that Hoopes had sexually harassed female work-study students under his supervision. After she reported Hoopes' conduct, Irvine's position was eliminated and she was transferred to the University Counseling Center under the supervision of John Robinson. Robinson allegedly threatened to fire her if she "got out of line" and, calling her a "troublemaker," issued instructions that she be assigned to undesirable work and night hours. Eight months later, after being transferred from one unproductive position to another, Irvine's employment at UMass was terminated.

Irvine brought an action against the University and several of its administrators, including Robinson, raising numerous federal and state claims. She alleged that the employment decisions were made in retaliation for her reporting Hoopes' sexual harassment of his students. Following a jury trial, Irvine prevailed against Robinson on her federal civil rights claim. The jury found that Robinson took impermissible "adverse employment action" against her. Irvine was awarded $100,000 in compensation for pain and suffering and $6,100 for medical expenses. She was later awarded $69,596.55 for attorney's fees and expert witness fees. In a subsequent settlement agreement between CNA, UMass, Irvine and Robinson, CNA agreed to pay Irvine $101,235 plus interest at 8.5% from November 1, 1986, to February 1, 1987, and Robinson his attorney's fees in the amount of $4,865. CNA also obtained the right to seek indemnification from CUI.

The Bagley plaintiffs were eight work-study students who alleged they were sexually harassed by Dr. Hoopes. They brought suit against Hoopes, the University and various university officials, claiming multiple federal and state constitutional, statutory and common law violations. They alleged, inter alia, sexual harassment, discrimination, deprivation of due process, infliction of emotional distress, and assault and battery. The University defendants were alleged to have taken retaliatory action against the Bagley plaintiffs for registering their complaints against Hoopes. On motions to dismiss, the trial court dismissed certain of the claims against the defendants ¹ and let stand the following claims: as against the University, claims under Title VII and Title IX; as against the University administrators, claims under 42 U.S.C. Sec. 1983 and Title VII insofar as injunctive and declaratory relief were sought; and as to the University individuals, claims under Secs. 1983 and 1985, under Mass.Gen.Laws ch. 151B, Sec. 4(4) and ch. 12, Secs. 11H, 11I, and for intentional infliction of emotional distress. Prior to trial, the Bagley case was settled by UMass for $225,000 "in full satisfaction of said plaintiffs' claims for damages, costs, and attorneys' fees." Both insurance companies disclaimed coverage of the Irvine judgment and the Bagley settlement.

CNA had issued to UMass a "board of education liability" policy that included the University, University employees and members of the Board of Trustees as insureds. The policy provided coverage for loss from a "Wrongful Act," defined as

any actual or alleged errors or misstatement or misleading statement or act or omission or neglect or breach of duty by the Assureds in the discharge of their duties, individually or collectively, or any matter claimed against them solely by

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reason of their being or having been Assureds during this policy period.

Among the exclusions in the CNA policy was an exclusion for other insurance: "The Insurer shall not be liable to make any payment for loss in connection with any claim against the Assureds ... which is insured by another valid policy or policies...."

CUI's policy with UMass was for "general liability insurance" and included as insureds "employees, agents, or other persons while acting for or on behalf of the University of Massachusetts...." The policy stated that it afforded "primary insurance," subject to certain exceptions. Coverage A of the policy insured against liability for bodily injury caused by an "occurrence," defined as "an accident ... which results in bodily injury ... neither expected nor intended from the standpoint of the insured." Under Coverage P, "Personal Injury Liability," UMass was insured for certain intentional acts:

Group A--false arrest, detention or imprisonment, or malicious prosecution;

Group B--the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy ...;

Group C--wrongful entry or eviction, or other invasion of the right of private occupancy[.]

In a general amendatory endorsement, Coverage P was amended to include:

Group D--Bodily Injury, Sickness, Disease, Disability, Shock, Mental Anguish, Mental Injury and Humiliation.

Group E--Injury arising out of assault or battery by the Campus Police for the protection of persons or property.

The district court held that the CUI policy covered the Irvine claim that a UMass employee took adverse employment action against Irvine in retaliation for her reporting another employee's alleged sexual harassment of work-study students. Although the court determined that the acts of employment discrimination were not "occurrences" within the Coverage A policy definition, it held that there was coverage pursuant to the Coverage P section of the CUI policy providing coverage for "Bodily Injury, Sickness, Disease, Disability, Shock, Mental Anguish, Mental Injury, and Humiliation." The court also found that UMass had not breached the cooperation clause of the CUI policy and that CNA was relieved of any obligation to UMass due to the "other insurance" exclusion in the CNA policy.

With respect to the Bagley settlement, the district court held that UMass had failed to meet its burden of showing which of the settled claims, if any, were covered under either the CNA or CUI policy. Accordingly, the court ruled that neither insurer was obligated to indemnify UMass for the amounts the University had paid to settle Bagley.

II. DISCUSSION

Our review of the district court's disposition of the motions for summary judgment is plenary, Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990), and requires us to determine whether "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Upon motion, summary judgment is "mandate[d] ... against a 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). It is not for the court on summary judgment to weigh the evidence "but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In...