Horace Mann Ins. Co. v. Peters
| Decision Date | 15 May 1997 |
| Docket Number | No. 95CA0344,95CA0344 |
| Citation | 948 P.2d 80 |
| Parties | 122 Ed. Law Rep. 813, 21 Colorado Journal 661 HORACE MANN INSURANCE COMPANY, Plaintiff-Appellant, v. Robert PETERS; and Jane Doe, a minor By and Through her next friends and parents Ann Doe and Sam Doe, Defendants-Appellees. . II |
| Court | Colorado Court of Appeals |
Deisch and Marion, P.C., Michael B. Marion, Gregory K. Falls, Denver, for Plaintiff-Appellant.
Oliphant, Hammond & O'Hara, Kristopher L. Hammond, Steamboat Springs; William C. Hibbard, P.C., William C. Hibbard, Steamboat Springs, for Defendants-Appellees.
Opinion by Judge CRISWELL.
In this declaratory judgment action, plaintiff, Horace Mann Insurance Company, appeals from an order of the trial court denying its motion for summary judgment, declaring that it was obliged to defend defendant Robert Peters in certain federal court litigation commenced against Peters by the other defendant, Jane Doe, through her parents Ann and Sam Doe, and awarding costs and attorney fees to defendant Peters. We reverse.
With respect to the issues addressed by the trial court and now presented to us, there are no disputed issues of material fact. The undisputed facts show the following:
At all relevant times, defendant Peters was a third-grade teacher in Moffat County School District RE-1. Because of certain alleged acts by Peters involving Jane Doe, one of his students and the daughter of Ann and Sam Doe, he was charged with, and ultimately pleaded guilty to, engaging in unlawful sexual contact with her while he was in a position of trust with respect to her.
Thereafter, the Does instituted suit in the local federal district court against Peters, the school district, two of Peters' supervisors, and the district's superintendent. Jurisdiction of the federal court was premised on several federal statutes, including the one that grants that court jurisdiction over civil rights claims.
Does' federal court complaint was divided into two major parts--first were "General Allegations," consisting of some 22 separately pleaded paragraphs, which summarized the factual bases relied upon; these allegations were followed by some 14 claims for relief, not all of which were directed against Peters. However, none of the allegations under any of the relevant claims for relief relied upon facts not summarized in the complaint's General Allegations. The latter allegations, rather, set forth alternate (or perhaps duplicative) legal theories of recovery, based upon the common core of historical facts described in the General Allegations.
Initially, the Does alleged that their claims arose "from a series of sexual assaults and battery (sic)" perpetrated by Peters upon Jane Doe. More specifically, they asserted that, in the 1989-1990 school year, Peters engaged in repeated sexual assaults while Jane Doe was a student in his class. They also alleged that, prior to the time of these assaults, complaints by other girl students against Peters, asserting improper sexual touching by him, had been received by Peters' supervisors, but because of the school district's policy of "reckless indifference" to such complaints, nothing had been done. Finally, it was asserted that Peters' assaults upon Jane Doe and the other defendants' failure to protect her and other girl students from him constituted a violation of Jane Doe's constitutional rights "to be free from sexual abuse by school staff members including Peters," as well as violations of several federal statutes that were specifically described.
Based upon the foregoing factual allegations, the Does then asserted claims against Peters, based upon the common law torts of assault, battery, negligent infliction of emotional distress, negligence, negligent violation of a fiduciary duty, and outrageous conduct. In addition, it was asserted that Peters' acts constituted a violation of Jane Doe's right to due process of law, under both the federal and state constitutions, a deprivation of her civil rights under 42 U.S.C. § 1983 (1994), and sexual discrimination under federal enactments. The Does sought compensatory, consequential, and punitive damages, as well as costs and attorney fees.
During the period referred to in the federal court complaint, there existed a contract of liability insurance that had been negotiated between Horace Mann and the National Education Association for the benefit of the association's members, including members of the Colorado Education Association. Peters was a member of the latter organization.
The relevant terms of this contract provided as follows:
Under Part III A, referred to as "Educators Liability" coverage, Horace Mann agreed "to pay all damages which [the member] shall become legally obligated to pay as a result of any claim: which comes from an occurrence in the course of [the member's] educational employment activities and which is caused by [the member's] acts or omissions...." The term "occurrence" was defined as "an event which results in damages to someone other than" a member covered by the contract. In addition, Horace Mann agreed to defend against any such claim and to pay all costs and expenses incurred in such defense.
The limits of this coverage were "$1,000,000 per member per occurrence (other than civil rights issues)" and "$250,000 per occurrence (civil rights issues)." In addition, while the amounts paid by Horace Mann in defense costs and expenses were generally to be in addition to these limits, the contract provided that the amount paid as attorney fees and costs in defending against a claim based upon "an alleged violation of any civil rights guaranteed by the Constitution or Civil Rights Statutes of the United States" were to be included within the limits of coverage for such a claim.
Another coverage, Part III B, provided for reimbursement to the member for attorney fees and costs incurred in defending against any criminal charge arising out of the course and scope of employment, if the member were exonerated. If the charge resulted from the member's use of corporal punishment, however, such reimbursement was to be made, irrespective of the result of the proceedings. Likewise, under Part III C, Horace Mann agreed to pay any premium for a bail bond in connection with such proceedings, up to a limit of $1,000.
This contract contained a number of exclusions, some of which were exclusions from all coverages under the contract, and some of which related only to specific coverages. The three limiting conditions relevant to the issues presented here provided as follows:
Part III (A) of this contract does not apply to any civil suit arising out of an act, other than corporal punishment, which has been held by a court to establish a crime.
[the criminal act exclusion]
....
Part III (A) of this contract does not apply to occurrences involving damages which are the intended consequences of action taken by or at [the member's] direction, unless the action involves corporal punishment. [the intentional act exclusion]
....
Part III(A) does not apply to punitive damages in excess of $5,000. [the punitive damages limitation] (emphasis supplied)
The contract of insurance defined "corporal punishment" as "the infliction by an insured of physical pain upon a student as a disciplinary measure for actual or alleged misbehavior."
Subject to a reservation of rights, Horace Mann provided a defense to Peters in the federal court litigation. However, it also commenced this declaratory judgment action, seeking a determination that, under the terms of its contract, it had no duty either to defend Peters or to indemnify him with respect to any amounts for which he might become liable under any judgment or settlement agreement.
Thereafter, Horace Mann, relying upon the foregoing facts, sought summary judgment on all issues. Peters resisted this motion, but he did not file any motion seeking summary judgment on his own behalf.
The trial court denied Horace Mann's motion. It also specifically held that "Horace Mann has a duty to defend Peters in the Doe suit." In addition, relying upon Allstate Insurance Co. v. Robins, 42 Colo.App. 539, 597 P.2d 1052 (1979), the court also entered judgment for Peters for some $6,600, representing the costs and attorney fees expended or incurred by him in the defense of this action.
On its face, Horace Mann's appeal here purports to be from the trial court's denial of its motion for summary judgment. However, such an order is not appealable. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo.1996).
Horace Mann argues, nevertheless, that the court's order contained an affirmative declaration that it owed a duty to defend Peters and that such declaration was the judicial equivalent of entering a summary judgment in Peters' favor. It further contends that the court erred in making such declaration because Peters had filed no motion requesting summary judgment.
If Horace Mann is correct in this latter assertion, its appeal must be dismissed, because, if the trial court had no authority to enter this order, there would exist no order from which any appeal could be taken. We disagree, however, that the court lacked authority to enter such an order.
As noted, while Peters filed a written response resisting Horace Mann's summary judgment motion, he filed no countermotion. At the foot of his response to Horace Mann's motion, however, he requested that the court declare that "Horace Mann [owes] a duty to defend him." Horace Mann raised no objection to this request, and in denying its motion the court affirmatively decreed that such a duty existed. And, its later actions in awarding Peters his costs and attorney fees confirmed that the court treated this ruling as a final disposition of this issue.
Under these circumstances, we agree with Horace Mann that the trial court's ruling, which...
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