Robinson v. Monroe Guarantee Ins. Co.

• Decision Date: 12 July 2019
• Docket Number: NO. 2016-CA-001668-MR,NO. 2016-CA-001667-MR,2016-CA-001667-MR,2016-CA-001668-MR
• Parties: BRIANNA ROBINSON APPELLANT v. MONROE GUARANTEE INSURANCE COMPANY APPELLEE AND JOHN ABBINGTON THOMAS; JOHN ABBINGTON THOMAS, D/B/A ROOM TO GROW PRESCHOOL; AND ROOM TO GROW PRESCHOOL, LLC APPELLANTS v. MONROE GUARANTEE INSURANCE COMPANY APPELLEE
• Court: Kentucky Court of Appeals

BRIANNA ROBINSONAPPELLANT v. MONROE GUARANTEE INSURANCE COMPANYAPPELLEEANDJOHN ABBINGTON THOMAS; JOHN ABBINGTON THOMAS, D/B/A ROOM TO GROW PRESCHOOL;AND ROOM TO GROW PRESCHOOL, LLCAPPELLANTS v. MONROE GUARANTEE INSURANCE COMPANYAPPELLEE

NO. 2016-CA-001667-MR

NO. 2016-CA-001668-MR

Commonwealth of Kentucky Court of Appeals

JULY 12, 2019

NOT TO BE PUBLISHED

APPEAL FROM CALLOWAY CIRCUIT COURT

HONORABLE JAMES T. JAMESON, JUDGE

ACTIONNO. 13-CI-00519

OPINION

AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND J. LAMBERT, JUDGES.

CLAYTON, CHIEF JUDGE:

By separate appeals which the Court has consolidated, Brianna Robinson along with John Abbington Thomas, John Abbington Thomas d/b/a Room To Grow Preschool, and Room To Grow Preschool, LLC appeal the Calloway Circuit Court's October 16, 2016 order granting declaratory and summary judgment in favor of Monroe Guaranty Insurance Company.Robinson brought suit against Thomas and Room to Grow raising several claims of negligence in connection with an assault she suffered allegedly while attending the preschool.The issue before us is whether the circuit court erred in finding no coverage for her claims exists under the insurance contract issued by Monroe to Thomas.We find no error and affirm.

FACTS AND PROCEDURE

Nearly two decades ago, in late May 2000, two-year-old Brianna Robinson began attending Room to Grow Preschool in Murray, Kentucky.John "Bing" Thomas owned and operated the preschool.Monroe had issued aCommercial General Liability Insurance Policy to "Room to Grow Preschool John A. Thomas DBA," effective July 29, 1999 through July 29, 2000(Monroe Policy).

Within a few days Brianna displayed resistance to attending Room to Grow.Her parents attributed her reluctance to a child's typical separation anxiety and nervousness in a new environment.At bedtime on May 31, 2000, Brianna told her mother, Lisa Robinson, that Madison, another child at Room to Grow, touched my "moo moo"¹ and that "they" pushed "like that."Lisa was unsure how to respond to Brianna's claims.Lisa informed Brianna it was "night night" time and Brianna again said that "her moo moo hurt."(R. 329).

The next day, June 1, 2000, Brianna's father, Dr. Thomas Robinson, picked Brianna up from Room to Grow.Shortly thereafter, Brianna told her father that "it hurts to go potty."Dr. Robinson discovered Brianna's vagina was red and raw.He called Lisa and they agreed they should take Brianna to their family physician, Dr. Richard Crouch.

Dr. Crouch saw Brianna that day.After a brief examination, he instructed Brianna's parents to immediately take her to a gynecologist.Dr. Crouch informed them that either a serious fall caused the injury, or someone had caused the irritation intentionally.

Gynecologist Dawn Deeter examined Brianna under anesthesia on June 2, 2000.Dr. Deeter's written report of Brianna's history says:

This 2 ½ yo complained to her mom "my moo-moo hurts" on 5/31.(Moo-moo is the patient's term for vulva vagina).The patient told the mom that "Madison touched my moo-moo."'She said either she"kept pushing them and pushing them away" or "they kept pushing and pushing her."Mom notes Brianna has tried to put something into the vagina a couple of times this past week which is the first time this has happened.Mom and dad note one episode of [Brianna] awakening from a nap hysterical, taking 10 minutes to settle.The child also reports pain with urination.The child is at a new DayCare since late May.Madison is reportedly a five year old girl at the DayCare center.She attends Room to Grow DayCare.

(R. 696).Dr. Deeter found Brianna's hymen was stretched and she had labial and vulvar lacerations "consistent with at least attempted penetration of something blunt."Dr. Deeter stitched the lacerated area.Dr. Deeter and Brianna's parents reported the incident to the police and to the Cabinet for Health and Family Services.The police investigation was delayed until June 5 because initially the case had been reported as "child on child" abuse and social services workers advised Dr. Deeter there would be no investigation.

Officers spoke to Dr. Deeter regarding her findings.Dr. Deeter confirmed she observed four lacerations to Brianna's vaginal area, but that Brianna's hymen was intact.Dr. Deeter also stated she consulted with another physician, Dr. Brent Boles, who advised that, in his opinion, Brianna's injurieswere not caused by a child, but that the injuries indicated a penetration of some kind.

Officers then spoke to the Robinsons.Lisa Robinson informed police that Brianna had initially stated that "Madison touched my moo moo," but since then had also stated that Bing Thomas had rubbed her there.At some point Brianna also identified Bing's then thirteen-year-old son, Jacob Thomas, as a person who touched her, and when questioned subsequently about who was present when the abuse occurred, Brianna looked at Dr. Robinson and stated, "Somebody gonna get you."

Bing and Dr. Robinson both underwent polygraph and urine tests and gave DNA samples.The deputy conducting the tests reported that Bing "was truthful and that he was not involved in sexually molesting Brianna," but that Dr. Robinson had answered two questions differently than he had in the pre-test interview.The deputy labelled Dr. Robinson's test result inconclusive.Both Bing and Dr. Robinson's urine tests indicated no drugs in either subject's system.

Police interviewed Bing Thomas; his wife, Stephanie Thomas; and four daycare employees.All testified that the abuse did not occur at Room to Grow, that they recalled no injury to Brianna or complaint of pain by her, and stated that, due to the daycare's open setup, it was impossible to be alone with a child.

Officers collected some of Brianna's clothing and submitted it to the Madisonville Crime lab for testing.The lab discovered semen on several pairs of Brianna's underwear, including a pair her parents confirmed she did not wear to Room to Grow.DNA testing eliminated Bing Thomas but found the sperm sample was consistent with a mixture of DNA from Dr. Robinson and Brianna.Dr. Robinson denied mixing his clothing with Brianna's clothing.

Brianna identified four possible people as the perpetrator: Madison; Bing Thomas; Bing's thirteen-year-old son; and her father, Dr. Robinson.Dr. Robinson was ultimately indicted for sexual abuse.(R. 290).A jury fully acquitted him of that charge.(R. 243).No other criminal charges were brought against the remaining persons.At no time did Bing Thomas notify Monroe of the assault or the subsequent police investigation.

In 2013, Brianna's mother, Lisa, sued Bing Thomas and Room to Grow preschool on Brianna's behalf alleging negligence, negligent infliction of emotional distress, and negligent failure to rescue.After Brianna reached the age of majority, she was substituted as plaintiff.The complaint alleged Bing and Room to Grow Preschool were negligent in:

a. permitting an employee or other person to be alone with a child on the premises of Room to Grow Pre-school during school hours during which time the employee was able to penetrate the vagina of [Brianna];b. failing to properly and adequately supervise and discipline its employees to prevent the injuries that occurred to [Brianna];

c. failing to implement, enforce and/or follow adequate protective and supervisory measures, police and procedures for the protection of students at Room to Grow Pre-school, including [Brianna];

d. failing to adopt, enforce and/or follow policies and procedures to protect minors against harmful influence and contact by its teachers and/or employees and/or other persons;

e. failing to provide [Brianna] with any assistance in coping with the injuries sustained;

f. failing to warn or otherwise make reasonably safe the property which Defendants possessed and/or controlled, leading to the harm to [Brianna];

g. negligently managing and/or operating Room to Grow Pre-school;

h. negligently hiring, training, and/or supervising employees of Room to Grow Pre-school; and

i. failing to report suspected or known child abuse.

(R. 5).

Monroe filed an intervening complaint, seeking a declaration of rights regarding its obligation to defend and indemnify Bing and Room to Grow.The Monroe Policy included an endorsement for Day Care Professional Liability coverage, but that endorsement contained several exclusions.Monroe also moved for summary judgment, arguing: (1) sexual abuse is not an "occurrence" under thegeneral liability definition of occurrence; (2) all of the daycare endorsement's exclusions apply; and (3) Bing and Room to Grow failed to timely report the claims.

By order entered October 6, 2016, the circuit court granted Monroe's motions for declaratory and summary judgment.Relying on K.M.R. v. Foremost Ins. Group, 171 S.W.3d 752(Ky. App.2005), the circuit court found no insurance coverage exists for Brianna's injuries, because those injuries arose from violations of multiple sections of KRS² Chapter 510.Violations of a statute or government rule, the circuit court reasoned, are specifically excluded from coverage under the daycare endorsement.It then concluded Monroe owed no duty to provide insurance coverage for Brianna's claim and, because there was no genuine issue of material fact as to the coverage under the Monroe Policy, Monroe was entitled to summary judgment.From this order, Brianna and Bing/Room to Grow appealed.

STANDARD OF REVIEW

"It is well settled that the proper interpretation of insurance contracts generally is a matter of law to be decided by a court; and, thus, an appellate court uses a de novo, not a deferential, standard of review."Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 73(Ky.2010).Likewise, when a declaratory judgment has been entered "and no bench trial held, the standard ofreview for summary judgments is utilized."Ladd v. Ladd, 323 S.W.3d 772, 776(Ky. App.2010).Summary judgment is proper where there exists no...