Guideone Elite v. Old Cutler Presbyterian Church

Decision Date19 August 2005
Docket NumberNo. 04-12846.,04-12846.
Citation420 F.3d 1317
PartiesGUIDEONE ELITE INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellee, v. OLD CUTLER PRESBYTERIAN CHURCH, INC., Defendant-Counter-Plaintiff-Appellant, J.A.W., Individually and as Legal Guardian/Parent of E.S.W., E.S.W., Husband of J.A.W., J.S.W., as Legal Guardian/Parent of E.S.W., Defendants-Appellants, P.W., Interested Party-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeals from the United States District Court for the Southern District of Florida.

Richard Alan Warren, Jean Anne Kneale, Hicks & Kneale, P.A., Miami, FL, Bradley Allan Silverman, The Law Offices of Anthony & Associates, P.A., Coral Gables, FL, for Defendants.

Roderick Flynn Coleman, Boca Raton, FL, for Plaintiff.

Before BLACK, MARCUS and FAY, Circuit Judges.

FAY, Circuit Judge:

The defendants, a church and the victims of a multi-crime episode that commenced on church property, appeal a district court's award of summary judgment in favor of the plaintiff insurer. The insurer initiated this diversity action seeking a declaratory judgment adjudicating the meaning, interpretation and application of a sexual misconduct exclusion contained in the church's general commercial liability policy. The district court found that the underlying crimes at the hands of a third party criminal all arose out of an act of sexual misconduct, and found the sexual misconduct exclusion applicable, thereby limiting coverage to that afforded to acts of sexual misconduct under a separate liability coverage form. We disagree, finding that the underlying crimes are not excluded by virtue of the sexual misconduct exclusion, and reverse the district court's judgment with instructions.

The Incident

The tragic facts of this case are undisputed,1 and though disturbing, the explicit details are, unfortunately, essential to our analysis. At around noon on October 16, 2002, J.A.W. (the "Victim"), a 31 year old mother, was picking up her three-year old daughter, E.S.W. (the "Daughter"), from the Little Disciples preschool at Old Cutler Presbyterian Church, Inc. (the "Church").2 The Victim was also accompanied by her eight-month old baby boy, P.W. (the "Son"). As she was securing her children in her mini-van, a man came up behind her and tackled her while screaming, "If you want to live and you don't want to see your children die, get in the car, bitch." The perpetrator then struck her on the head, threw her into her van, and closed the door.

Once in the van, the perpetrator told the Victim that he had a knife, made her close her eyes, and stuck her with a very sharp object in the upper arm or neck before he headed into the back seat to sit next to the Daughter. The Daughter was screaming and attempted to get out of her seat and out of the van when the perpetrator pushed her back and forced her back into the seat, resulting in a bruise on her lower back. He then ordered the Victim into the passenger seat, sat himself in the driver's seat, turned-up the volume on the radio to try to mask the screams of the Victim and her children, and drove off in the van.

As they were driving, the perpetrator began engaging the Victim in conversation. He told her, "Give me your money, give me your rings, give me your pin number to your ATM card," and "I also want something else from you, there are a few other things you're going to have to do for me." The perpetrator then had the Victim crouch down on the floor of the van to perform oral sex on him while he was driving. While the Victim was performing oral sex, the perpetrator began striking her in the back of the head because he was angry that he could not maintain an erection while the children were screaming and, thus, could not ejaculate.

After driving for about thirty minutes, the perpetrator stopped the van in a grassy area near a canal. He told the Victim to remove her pants, pulled his own pants down to his ankles, and asked her to perform more oral sex before climbing on top of her and having intercourse with her. During intercourse, the perpetrator asked the Victim to turn over, removed his penis, and began "spanking" her on the buttocks. He asked her if she liked to be hit during sex, she responded that she did not. Despite her response, he continued to hit her, asking her if it hurt. The Victim responded that it did not hurt because she thought that was what he wanted her to say, and he repeatedly hit her harder, stopping after three or four times. Intercourse then resumed and the perpetrator ejaculated, putting his penis in the Victim's mouth and saying, "You better swallow it all, you better swallow everything or I will kill you and your children. You do not want your children to die."

The perpetrator next had the Victim crouch down on the passenger side of the vehicle and told her that he needed money and needed to find a bank. He told her that he was unsure how to go about getting the money because he did not want to be seen on the cameras, nor did he want to send her into the bank, for fear that she would ask someone for help. Thinking out loud, the perpetrator named the different banks in the area, dismissing them for various reasons, until he remembered that there was a Bank of America with a drive-through ATM. He then instructed the Victim to drive and told her, "I'm going to sit in the back seat with your daughter and remember I have a knife." At that point, the perpetrator stuck the Victim with the knife and continued, "I'm not kidding around, I'm getting in the back with your children and you're going to withdraw the money, whatever you're able to withdraw and I want to see the receipt when you're done, I need to know how much money is in all your accounts."

The perpetrator drove to the Bank of America in Homestead, where he and the Victim switched places in the mini-van. The Victim was only able to withdraw $400 from the ATM and handed the receipt and money to the perpetrator. The Victim's husband's paycheck had just been deposited and, upon looking at the receipt, the perpetrator said he couldn't believe how much money the Victim had in the bank; he couldn't believe how he had gotten so lucky. He said he had to find a way to get the rest of it and that he could come back for the Victim if he needed to, because he was going to get all of the money.

The perpetrator again had the Victim switch places with him, so that he was again driving. He then told her that they were driving to a First Union bank. At First Union, he had the Victim get out of the car to withdraw money from a walk-up ATM, as this bank did not have a drive-through. After attempting to withdraw cash from her various accounts, the Victim returned to the car empty handed, explaining to the perpetrator that the ATM would not allow her to withdraw any more money. The perpetrator responded by screaming at her that "he had to have this money" but "if you know your children are in the car with me you're going to be too hysterical going into the bank, I don't know." The perpetrator then decided against sending the Victim into the bank to withdraw the money, said, "this is almost over for you," and began driving back towards the Church.

On their way back to the Church, the perpetrator decided that he was aroused once again, and made the Victim crouch down on the floor of the van to perform oral sex on him. The perpetrator was unable to ejaculate because the Victim's children were screaming too much. Instead, the perpetrator had her use her hands, and when that did not work, he ordered her to kiss his penis. He then drove into the Church parking lot but could not find a secluded area, so he drove into a wooded area opposite the Church and parked the van. The perpetrator told the Victim that he had been nice to her and that he had intended to kill her and her children but had decided against it. He told her that she should be grateful and that she did a good job pleasing him.

Before he parted, the perpetrator returned the Victim's wedding rings, stating that he did not want to arouse her husband's suspicions by having her rings missing and making her promise not to tell her husband. He then told her to go home and take a shower, left the Victim and her children in the mini-van, and walked away.

The Policy

On the date of the Incident, the Church was covered by a primary liability insurance policy (the "Primary Policy") issued by GuideOne Elite Insurance Company (the "Insurer"). The Primary Policy contains a Commercial General Liability coverage form (the "CGL") providing limits of $1 million per occurrence and $2 million in the aggregate, with the following exclusion:

any "personal and advertising injury," "bodily injury" and mental or emotional pain or anguish, sustained by any person arising out of or resulting from any actual or alleged act of sexual misconduct of any kind. [The Insurer] shall have no duty to investigate, settle, defend or pay any claim or suit asserting any act of sexual misconduct or any breach of duty contributing to such act.

(the "Sexual Misconduct Exclusion"). Neither the Primary Policy nor the CGL define "sexual misconduct." Because of the Sexual Misconduct Exclusion in the CGL, the Church also purchased Sexual Misconduct Liability coverage (the "SML"), which applies to certain delineated acts of sexual misconduct and provides for $100,000 per occurrence and $300,000 in the aggregate. Though part of the Primary Policy, the SML is a separate coverage requiring a separate premium. The SML defines "Sexual Misconduct or Sexual Molestation" as:

any activity which is sexual in nature whether permitted or unpermitted, including but not limited to sexual assault, sexual battery, sexual relations, sexual acts, sexual activity, sexual handling, sexual massage, sexual exploitation, sexual exhibition, photographic, video or other reproduction of sexual activity, sexual stimulation, fondling, intimacy,...

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