Liberty Univ., Inc. v. Citizens Ins. Co. of Am.

• Decision Date: 10 July 2015
• Docket Number: No. 14–2254.,14–2254.
• Citation: 792 F.3d 520
• Parties: LIBERTY UNIVERSITY, INC., Plaintiff–Appellee, v. CITIZENS INSURANCE COMPANY OF AMERICA; Hanover American Insurance Company ; Hanover Insurance Company, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

792 F.3d 520

LIBERTY UNIVERSITY, INC., Plaintiff–Appellee

v.CITIZENS INSURANCE COMPANY OF AMERICA; Hanover American Insurance Company ; Hanover Insurance Company, Defendants–Appellants.

No. 14–2254.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2015.

Decided: July 10, 2015.

ARGUED:John Peter Malloy, Robinson & Cole LLP, Hartford, Connecticut, for Appellants. Harold Edward Johnson, Williams Mullen, Richmond, Virginia, for Appellee. ON BRIEF:Thomas S. Garrett, Harman Claytor Corrigan & Wellman, Richmond, Virginia; Wystan M. Ackerman, Robinson & Cole LLP, Hartford, Connecticut, for Appellants. Calvin W. Fowler, Jr., Williams Mullen, Richmond, Virginia, for Appellee.

Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.

Opinion

Vacated and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

THACKER, Circuit Judge:

In November 2012, Janet Jenkins sued Liberty University, Inc. (“Appellee”), alleging that the school participated—both directly and vicariously—in a scheme to kidnap Jenkins's daughter in order to disrupt the parent-child relationship. In her complaint (“Jenkins Complaint”), Jenkins alleged that Appellee and its agents helped Lisa Miller, the child's biological mother and Jenkins' former partner in a same-sex civil union, to defy state court visitation orders and to abscond with the child to Nicaragua.

The district court ruled that Citizens Insurance Company of America (“Appellant”), Appellee's liability insurance carrier, has a duty to defend Appellee. Under the insurance policy at issue, Appellant must defend Appellee against suits alleging certain harms that arise from an “occurrence”—an unexpected accident, which does not fall under any of the coverage exclusions. The policy also contains a “Separation of Insureds” provision, which requires the court to evaluate a claim by each named insured individually.¹ Concluding that this Separation of Insureds provision is ambiguous and should be interpreted in Appellee's favor, the district court refused to consider the intent of Appellee's agents when determining if the complaint alleged an accidental “occurrence” and whether the policy's exclusions applied. The district court also decided that, even if the Separation of Insureds provision would not prevent imputing the intent of Appellee's agents to Appellee, the Jenkins Complaint failed to “sufficiently allege” Appellee's vicarious liability. Thus, the district court granted summary judgment and awarded defense costs to Appellee.

We conclude otherwise. Because the Jenkins Complaint does not allege an “occurrence,” and because it triggers the policy's coverage exclusions, Appellant has no duty to defend.

I.

We review a grant of summary judgment de novo. See CACI Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 155 (4th Cir.2009).

II.

A.The Jenkins Complaint

The child at the core of this dispute was born to Lisa Miller and Janet Jenkins in 2002 while the two women were joined in a Vermont same-sex civil union. Miller is the biological mother and a legal parent to the child. Jenkins is also the child's legal parent, pursuant to a 2004 Vermont state court ruling. Miller subsequently converted to Christianity; moved to Virginia; and believing that homosexuality was sinful, sought to prevent Jenkins from having contact with her daughter. For several years, Miller defied visitation orders issued by Vermont and Virginia courts. In 2009, facing the possibility that Vermont or Virginia would transfer custody to Jenkins, Miller absconded to Nicaragua with the child. Jenkins has not seen her daughter since.

Jenkins brought a lawsuit in Vermont district court on her own behalf and on behalf of her daughter in November 2012. Appellee and Victoria Hyden, a student worker at Liberty University, were among the named defendants. The Jenkins Complaint alleges that Appellee assisted Miller by withholding the child from Jenkins and by taking the child out of the country. As a result, Jenkins claims Appellee was directly liable for conspiring to “commit the intentional tort of kidnapping,” which is “chargeable as a criminal offense under Vermont law,” and conspiring “through [a] pattern of racketeering” to kidnap the child and to “assure her continued detention” in Nicaragua in violation of the Racketeer Influence and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d).² J.A. 49, 51. The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents' racketeering, and for its agents' participation in a conspiracy to violate Jenkins's and the child's “rights to a parent-child relationship.” Id. at 46, 49.

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school's professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. J.A. 42. The Jenkins Complaint further accuses Victoria Hyden, an employee of the law school, of calling Miller's father to help transport Miller and the child to a parking lot in Lynchburg, Virginia, where Philip Zodhiates—who is Hyden's father and was one of Staver's acquaintances—picked them up and drove them to the Canadian border. Staver allegedly aided the kidnapping by using telephone lines registered to Liberty University to speak to Zodhiates as he drove back from the Canadian border. Therefore, “[w]ith the assistance of ... Philip Zodhiates and Victoria [Hyden] ... as agents of ... Liberty University ... Miller was able to leave the United States” with the child. Id. at 46.

The Jenkins Complaint also alleges that Appellee and its agents “enable[d] [Miller] to remain outside the country.” J.A. 44. For example, Lindevaldsen allegedly founded a Facebook group to solicit donations for Miller while Miller was hiding with the child in Nicaragua. The Jenkins Complaint also asserts that Hyden emailed “her co-workers at the law school requesting donations for supplies to send to ... Miller to enable her to remain outside the country.” Id. at 44. The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of action for a person in ... Miller's situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights ... of same-sex families.” Id. at 45–46.

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s'] tortious, racketeering activity.” J.A. 46. The Jenkins Complaint sought damages for these injuries.

B.The Policy

The policy at issue was effective from February 2009 to February 2010 and contains two coverage forms: (1) Commercial General Liability coverage (“CGL”) and (2) School and Educators Legal Liability coverage (“SELL”).³

1.CGL Coverage

The CGL itself provides two subsidiary coverage forms: Coverage A and Coverage B.

a.Coverage A

Under Coverage A, Appellant must defend suits seeking damages for “bodily injury” and “property damage” arising from an “occurrence.” J.A. 68. Consistent with Virginia law, the policy defines the terms “occurrence and accident ... synonymous[ly] [as] refer[ing] to an incident that was unexpected from the viewpoint of the insured.” AES Corp. v. Steadfast Ins. Co., 283 Va. 609, 725 S.E.2d 532, 536 (2012) (internal quotation marks omitted); J.A. 81. According to the Supreme Court of Virginia:

For coverage to be precluded under a CGL policy because there was no occurrence, it must be alleged that the result of an insured's intentional act was more than a possibility; it must be alleged that the insured subjectively intended or anticipated the result of its intentional act or that objectively, the result was a natural or probable consequence of the intentional act.

....

... Where the harmful consequences of an act are alleged to have been not just possible, but the natural and probable consequences of an intentional act, choosing to perform the act deliberately, even if in ignorance of that fact, does not make the resulting injury an ‘accident’....

AES, 725 S.E.2d at 536, 538 (internal quotation marks omitted). Accordingly, a suit alleging only intentional torts does not state an “occurrence.” See Travelers Indem. Co. v. Obenshain, 219 Va. 44, 245 S.E.2d 247, 249 (1978). Even if the insured demonstrates that the suit alleges “bodily injury” or “property damage” arising from an “occurrence,” Coverage A's “Expected Injury Exclusion” excludes “ ‘[b]odily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” J.A. 69.

b.Coverage B

Coverage B insures against suits alleging “personal and advertising injury,” the definition of which includes “[f]alse arrest, detention or imprisonment.” J.A. 81. The policy defines “wrongful act” as:

any breach of duty ... committed by an insured:

a. In the lawful discharge of the duties that are characteristic of, distinctive or inherent to the operation and functioning of an educational institution; and

b. While acting within the course and scope of their duties for the named insured.

Id. at 130. But Coverage B's “Criminal Acts Exclusion” excludes any “ ‘[p]ersonal and advertising injury’ arising out of a criminal act committed by or at the direction of the insured.” Id. at 73. And Coverage B's “Knowing Violation Exclusion” excludes any “ ‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the...