Doe v. Foley
| Decision Date | 18 August 2020 |
| Docket Number | Appeal No. 2019AP667 |
| Citation | 2020 WI App 60,949 N.W.2d 884 (Table) |
| Parties | John DOE, Plaintiff-Appellant, v. David P. FOLEY and GHI Insurance Group, Defendants, Big Brothers and Big Sisters of Metropolitan Milwaukee, Defendant-Respondent, First Nonprofit Insurance Company, Intervenor-Respondent. |
| Court | Wisconsin Court of Appeals |
¶1 John Doe appeals the order granting summary judgment to Big Brothers and Big Sisters of Metropolitan Milwaukee (BBBS) and BBBS's insurance carrier, First Nonprofit Insurance Company (First Nonprofit). Doe initially brought an action against David P. Foley, BBBS, and fictitious insurance companies, alleging that Foley sexually assaulted Doe while Doe was a "little brother" in the BBBS program. Doe brought claims against BBBS for respondeat superior and negligent hiring, training, and supervision, and for punitive damages. First Nonprofit intervened and sought a declaration that neither the primary policy nor the umbrella policy issued to BBBS provided coverage for Foley's alleged actions. The circuit court ultimately granted First Nonprofit's motion. BBBS then moved for summary judgment on Doe's claims. The circuit court granted the motion. Because we conclude that there are no issues of material fact, we affirm the circuit court.
¶2 On February 16, 2015, Doe filed a civil complaint against Foley, BBBS, and fictitious insurance companies. As to the claims against Foley, the complaint alleged: (1) battery; (2) intentional infliction of emotional distress; (3) false imprisonment; and (4) negligent infliction of emotional distress. As to the claims against BBBS, the complaint alleged: (1) respondeat superior liability; and (2) negligent hiring and supervision. The complaint also set forth direct action claims against BBBS's insurance carrier and punitive damages claims against all of the parties.
¶3 The basis of the complaint was Doe's claim that while a "little brother" with the BBBS program, his "big brother," Foley, sexually assaulted him. The complaint alleged that when Doe was eleven years old, and continuing for a two-year period, Foley sexually assaulted Doe at multiple locations, provided Doe with excessive gifts, and used his volunteer position with BBBS as a means of having sexual contact with Doe. The complaint alleged that Foley had a criminal history, including convictions for issuing worthless checks, theft, and operating while intoxicated. The complaint states that neither Doe nor his family were aware of Foley's convictions when Foley was assigned as Doe's "big brother." The complaint alleged that BBBS negligently investigated, hired, supervised, and trained Foley, and that Foley used his position with BBBS as a vessel to abuse Doe.
¶4 After Doe filed the complaint, First Nonprofit moved to intervene, seeking a declaratory judgment with respect to any alleged duty to defend and/or indemnify Foley. First Nonprofit moved for summary judgment, arguing that its policies issued to BBBS did not provide coverage for Doe's allegations against Foley because Foley was not acting within the scope of his duties as a volunteer when the alleged abuse occurred. First Nonprofit argued that multiple policy exclusions barred coverage of Doe's claims. First Nonprofit also argued that its policies excluded coverage for any claim of punitive damages.
¶5 At a hearing on First Nonprofit's summary judgment motion, the circuit court granted First Nonprofit's motion as to the false imprisonment claim, but denied the remainder of the motion, stating that the issue of whether Foley was acting within the scope of his volunteer duties was a jury question. The circuit court also found the relevant portions of the relevant policies to be ambiguous.
¶6 First Nonprofit later renewed its motion for summary judgment after conducting a deposition of Foley. The renewed motion argued that, based on Foley's deposition testimony, First Nonprofit's policies did not provide coverage for Doe's alleged allegations because Foley acknowledged that BBBS prohibited sexual abuse of children in the program and that such misconduct would not have been within the scope of a mentor's responsibilities.
¶7 At a hearing on the motion, the circuit court interpreted First Nonprofit's motion as a motion for reconsideration, but stated that First Nonprofit's motion did not meet the criteria for such a motion. Instead, the circuit court invoked its inherent authority to reconsider its previous decision. The circuit court did not consider Foley's deposition testimony, but rather, reevaluated the complaint and granted First Nonprofit's summary judgment motion in its entirety. The circuit court stated "Foley cannot qualify as an insured under this policy because the allegations of abuse within the complaint are not within the scope of his duties as a volunteer Big Brother."
¶8 Following the circuit court's determination that First Nonprofit did not owe coverage for Doe's claims, BBBS moved for summary judgment seeking dismissal of Doe's claims. Specifically, BBBS argued that: (1) it was entitled to summary judgment on Doe's claim for respondeat superior because Foley's alleged actions "were not within the scope of his agency and therefore do not allow for vicarious liability"; (2) it was entitled to summary judgment on Doe's negligent hiring, training and supervision claim because "there is no nexus between Foley's criminal history and his unforeseeable actions of assault"; and (3) that any claim for punitive damages "must be stricken because Doe cannot make the requisite showing to support [his] claim for damages."
¶9 Doe opposed the motion, arguing that Foley "followed BBBS's explicit directives and built a trusting, one-on-one and confidential relationship with ... Doe ... [and] that the actions [BBBS] deems necessary to develop a mentor/mentee relationship are the same actions pedophiles like Foley use to ‘groom’ children." Doe also argued that the alleged abuse occurred during the specific hours Doe was under Foley's supervision.
¶11 As to the negligent hiring, training, and supervision claim, the circuit court stated:
it is quite clear that there is a need for a causal relationship or a nexus between the negligence of the employer and the harm caused.... I'm having a real hard time at this point finding that nexus or that causal connection between the prior record and the harm[.]
¶12 This appeal follows. Additional facts are included as relevant to the discussion.
¶13 On appeal, Doe contends that the circuit court erroneously granted summary judgment to BBBS and First Nonprofit because: (1) Foley's alleged abuse occurred during the course of his volunteer sessions with Doe, thereby making BBBS vicariously liable for Foley's alleged actions; (2) BBBS negligently hired, trained, and supervised Foley because BBBS was aware of Foley's criminal history when it accepted him as a volunteer and assigned him to Doe; and (3) First Nonprofit's policies provide coverage for Foley's alleged actions.
¶14 We review a grant of summary judgment de novo. See Tews v. NHI, LLC , 2010 WI 137, ¶40, 330 Wis. 2d 389, 793 N.W.2d 860. "The summary judgment methodology is well established." Id. , ¶41. We first examine the pleadings to determine whether claims for which relief may be granted have been stated. See id. If so, we examine the moving party's submissions to determine whether it has made a prima facie case for summary judgment. See id. If a prima facie case for summary judgment exists, we examine the opposing party's affidavits and other proof to determine whether summary judgment is appropriate. Id.
¶15 Summary judgment must be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2017-18).1 A factual issue is genuine, for purposes of summary judgment, if a reasonable jury could find in favor of the nonmoving party on that issue. Central Corp. v. Research Prods. Corp. , 2004 WI 76, ¶19, 272 Wis. 2d 561, 681 N.W.2d 178. A fact is material when it would influence the outcome of the controversy. Id.
¶16 "The purpose of the summary judgment procedure is to avoid trials when there is nothing to try." Tews , 330 Wis. 2d 389, ¶42. In reviewing the parties’ submissions, we draw all reasonable inferences in the light most favorable to the party against whom summary judgment was granted. See Pum v. Wisconsin Physicians Serv. Ins. Corp. , 2007 WI App 10, ¶6, 298 Wis. 2d 497, 727 N.W.2d 346 (2006). Whether an inference is reasonable and whether more than one inference may be drawn are questions of law we decide de novo. See id.
¶17 Doe argues that "Foley's conflation of his roles as volunteer and abuser rendered those roles indistinguishable; therefore, his acts were committed within the scope of his employment as a volunteer." (Capitalization and bolding omitted.) We disagree.
¶18 Under the doctrine of respondeat superior , an employee's actions are imputed to his or her principal when the employee is acting within the scope of his or her employment. See James Cape & Sons Co. ex rel. Polsky v. Streu Constr. Co. , 2009 WI App 144, ¶10, 321 Wis. 2d 522, 775 N.W.2d 277. An employee's conduct falls...
To continue reading
Request your trial