Horace Mann Ins. Co. v. Fore

Decision Date29 January 1992
Docket NumberCiv. A. No. 91-C-985-N.
Citation785 F. Supp. 947
PartiesHORACE MANN INSURANCE COMPANY, Plaintiff, v. Cecil FORE, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Clyde C. Owen, Jr., Ball, Ball, Matthews & Novak, Montgomery, Ala., for plaintiff.

Jere L. Beasley, Mark J. Williams, Beasley, Wilson, Allen, Mendelsohn, Jemison & James, Montgomery, Ala., for defendants "Mary Doe", "Sue Doe" & "Jane Doe".

Cecil Fore, pro se.


JOHN L. CARROLL, United States Magistrate Judge.


The plaintiff, Horace Mann Insurance Company, has moved this court for a declaratory judgment as to the scope of its duty to indemnify or defend its insured, Cecil Fore, and for summary judgment. The motion for summary judgment was filed November 6, 1991. On November 15, 1991, Judge Hobbs ordered that a response be made on or before December 4, 1991, and informed the parties that as of December 4, 1991 the motion would be deemed submitted by the court.1 The defendants have filed no response.

The defendants in this case are Mr. Fore, a teacher, and the three minor victims of his unwanted and illegal sexual attentions, John, Harry and James Doe, as represented by their next friends Mary, Sue and Jane Doe, respectively, hereafter the "Doe party." The facts giving rise to this dispute are the existence of an insurance policy, issued by the plaintiff to Mr. Fore as a member of the state affiliate of the National Education Association, which excludes coverage for activities not related to the insured's educational employment, for civil suits arising from criminal acts, and for the consequences of the insured's intended actions. During the course of the 1989-90 or 1990-91 school year, Mr. Fore committed the acts against the children, each of whom was enrolled in Montgomery County's special education program and each of whom was in junior high school.

On January 16, 1991, Mr. Fore was convicted in consolidated proceedings of multiple counts of sodomy in the second degree in violation of Ala.Code § 13A-6-67 and of one count of sexual abuse in the second degree in violation of Ala.Code § 13A-6-64. The Doe party filed their civil suit January 25, 1991.2 Under a reservation of rights, the plaintiff insurer provided counsel to defend Mr. Fore in the civil suit.

The insurer seeks a declaration that it owes no duty to defend or indemnify Mr. Fore in the civil suit because of exceptions in coverage accruing from the sexual abuse of John, Henry, and James Doe, his students. The court examines each of the three relevant exceptions to coverage in turn.

The Exclusion of Noneducational Employment Activities

The plaintiff insurer contends that Mr. Fore's sexually abusive acts do not constitute "educational employment activities" within the meaning of the contract of insurance. The policy provides:

The term `Educational Employment Activities' means the activities of the insured performed:
1. Pursuant to the express or implied terms of his/her employment by an educational unit; or
2. At the express request or with the express approval of his/her supervisor; provided that, at the time of such request or approval, the supervisor was performing what would appear to be his/her educational employment activities ...

While it is intuitively obvious that sexual abuse is not an activity concerned with education, there is case law amplifying the point. The court in Worcester Ins. Co. v. Fells Acres Day Schl., Inc., 408 Mass. 393, 413, 558 N.E.2d 958 (1990), noted that sexually abusive acts "were not of the kind a school employee was employed to perform" and were not "motivated ... by a purpose to serve the employer." Similarly, a California court construing the same policy provision as that at issue here found that, as a matter of law, sexual abuse is not identified with employment as a teacher and that the insurer had no duty to indemnify or defend an elementary school teacher who molested a pupil. Summary judgment was entered for the insurer. Horace Mann Ins. Co. v. Analisa N., 214 Cal.App.3d 850, 263 Cal.Rptr. 61 (1989). The court averred that it could not "fathom a more personal activity less related to the goal of education" than a teacher's sexual abuse of his student. Analisa N., 263 Cal. Rptr. at 64.

The court finds no Alabama authority that disputes this eminently reasonable conclusion.3 Accordingly, finding the authority from other jurisdictions persuasive on this identical issue, the court finds that no genuine issue of material fact has been presented as to the educational employment activities exclusion and that the plaintiff is entitled to judgment on this issue as a matter of law.

The Exclusion for Liability Based on Criminal Activity

Alabama law is unambiguous on the point that nothing requires an insurer to indemnify a third party for the insured's criminal acts. See Hooper v. Allstate Ins. Co., 571 So.2d 1001, 1003 (Ala.1990). Nor does the insurer's exclusion of coverage for criminal acts violate public policy, because "insurance companies have the right to limit their liability and to write policies with narrow coverage." Hooper, 571 So.2d at 1003.

Part VII of the policy specifically denies coverage for "civil suits arising from criminal acts." The policy states, "This contract does not apply to any civil suit arising out of an act ... which has been held by a court to constitute a crime."

Mr. Fore was convicted in the Circuit Court of Montgomery, Alabama, of multiple counts of sodomy in the second degree, a crime under Ala.Code § 13A-6-67, and one count of sexual abuse in the second degree, a crime under § 13A-6-64. These crimes are the gravamen of the civil suit. But for the acts of sexual abuse which constitute criminal offenses, there would be no civil suit. Accordingly, coverage is expressly excluded since the criminal activity is beyond dispute. The plaintiff is also entitled to judgment on this issue as a matter of law.

The Intended Injury Exclusion

The policy provides, "This contract does not apply to occurrences involving damages which are the intended consequence of action taken by you or at your direction." The court finds this language to be substantially equivalent to the standard language "Coverage ... does not apply to bodily injury or property damage which is expected or intended by the insured," which is the subject of interpretation in the cases cited and discussed below. Accordingly, the court believes that any effort to distinguish the cases cited below from the instant case based on semantics would be hypertechnical and dissembling. It finds the cases discussed below instructive.

Because the insurer has prayed for summary judgment, it is necessary to discuss in extensive detail this issue so gingerly avoided by the insurer in its brief supporting its motion for summary judgment. The court believes that the avoided issue is at the heart of this case, and notes that summary judgment would be inappropriate in this case if the reasoning and holding of our sister court in the Northern District were an accurate understanding of Alabama law and the public policy of this state, provided that this court is correct in viewing this case as intimately concerned with an intentional act of sexual abuse by an insured whose policy excludes coverage for such acts.4 However, no amount of qualification could persuade this court that the decision in State Auto Mut. Ins. Co. v. McIntyre, 652 F.Supp. 1177 (N.D.Ala.1987), is correct. Some discussion of the McIntyre opinion must preface this court's discussion of what it has determined would accurately reflect Alabama law.5

In McIntyre, a grandfather sexually abused his nine-year-old granddaughter on two occasions. Presumably because his penis did not penetrate the little girl's vagina, the court repeatedly throughout its opinion characterized the abuse as "nonviolent."6 See, e.g., McIntyre, 652 F.Supp. at 1178, 1183, 1221. Apparently, the court thought that the quantum of violence used had great relevance to construing the policy language, which excluded coverage for "bodily injury or property damage which is expected or intended by the insured." 652 F.Supp. at 1186.7

The McIntyre court was convinced that the so-called subjective standard governed all manner of cases in which an exclusion for intentional acts existed. The McIntyre opinion indicates that the court believed this to be the pure edict of the Alabama Supreme Court in Alabama Farm Mut. Cas. Ins. v. Dyer, 454 So.2d 921 (Ala.1984).

This court believes the McIntyre court's reliance on Dyer to be misplaced. Dyer did not involve sexual abuse, but the discharge of a gun. This court finds that Dyer can easily be distinguished from the instant case and that the Dyer result has a certain internal logic that the McIntyre result lacks. It might be plausibly argued, for example, that as a matter of metaphysics, a person such as the shooter in Dyer has a certain detachment from and ignorance of the mechanics of shooting even as he squeezes the trigger. Surely he knows that the gun will fire; surely he expects that when the gun fires the bullet will not fall ineffectually from the chamber onto the floor. But he cannot fully know until he has fired how the gun will react and what the bullet will do to its target. Obviously, in the state of Alabama, this realization of certain psychological or metaphysical workings aids an insured in his quest to force the insurer to pay for his deliberate act; Dyer governs just the precise situation in which an insured acts more out of detached stupidity or blunted sensitivity to others than out of evident malice.8

But there is no similar detachment caused by a lack of experiential knowledge of the consequences when one's body, rather than a gun, lead pipe, or bazooka, is the offending instrumentality. With sexual abuse, as presented in the McIntyre facts and the facts of the instant case, there is no intervening instrumentality that...

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    ...knowledge of the consequences when one's body, rather than a gun, lead pipe, or bazooka, is the offending instrumentality." See Fore, 785 F.Supp. at 952. Their only experience with sexual matters may be portrayals in the media of sexual contacts between consenting adults, which may leave th......
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