United States District Court, W.D. Missouri, St. Joseph Division
THE CHARTER OAK FIRE INSURANCE COMPANY and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiffs,
MATTHEW NELSON, et al., Defendants.
ORDER AND OPINION DENYING DEFENDANT MATTHEW NELSON'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
ORTRIE D. SMITH, Senior District Judge.
Pending is Plaintiffs' Motion for Summary Judgment. Defendant Matthew Nelson's Suggestions in Opposition ask that summary judgment be granted in his favor. Plaintiffs' motion is granted as to both Defendants. Nelson's motion is denied.
Plaintiffs have filed this declaratory judgment action against
1. Jane Doe, by and through her Parent and Next Friend, Mary Doe, and
2. Matthew Nelson.
Mary Doe and John Doe are Jane Doe's parents; the three of them are referred to collectively as "the Does." John Doe is not a defendant in this suit. Mary Doe is sued only in her capacity as Jane Doe's Next Friend, so she is not a defendant in her individual capacity. Plaintiffs seek a declaration that they are not obligated to (1) defend Nelson in suit filed against him by the Does in Jackson County Circuit Court or (2) indemnify him against damages sought by Jane Doe.
The Does' suit alleges Nelson was a second grade teacher in the Grain Valley School District ("the School District") and during the 2011-12 school year Jane Doe was one of Nelson's students. As will be discussed more fully below, the Does allege Nelson engaged in various improprieties with Jane Doe. Nelson pleaded guilty in state court to child molestation, statutory sodomy and attempted child molestation; these charges arose from his conduct regarding students other than Jane Doe. The suit asserts claims against Nelson, the School District, and various officials from the School District.
Plaintiffs issued insurance policies to the District that insure the District and its employees - including Nelson - against certain types of claims. Plaintiffs allege that while Nelson is an employee of the District, the Does' claims are not covered and they therefore do not owe him a duty (1) to defend him from those claims or (2) to indemnify him against those claims.
A. The Underlying State Court Suit
The operative pleading in the state court suit is the Does' Third Amended Petition. As relevant to this suit, paragraph 22 of the General Allegations avers that during the 2011-12 school year Nelson
began an ongoing, repeated and continuous practice of fondling, holding, kissing and otherwise inappropriately touching and assaulting Plaintiff Jane Doe, including such specific acts as touching her private area, touching her legs[ ] and inner thighs, and requiring Plaintiff Jane Doe to stand between his legs while he sat at his desk in the classroom, and in other locations on school property and elsewhere during the course and scope of his employment and work as her teacher.
Paragraph 23 alleges Jane Doe "had no choice but to be subjected to [Nelson's] repeated and ongoing physical and sexual assaults." Other General Allegations, such as paragraph 33, also describe Nelson's conduct with words and phrases such as "assault" or "sexual assault."
The Third Amended Petition contains seventeen counts, but Count XVII does not assert a cause of action and only seeks punitive damages for all the other counts. Disregarding Count XVII, Nelson is a defendant in ten counts. Each of the individual counts begins by reincorporating all previous allegations, including paragraphs 22 and 23. The counts naming Nelson as a defendant, and relevant allegations contained therein, are as follows:
Count III - Negligence per se, alleging Nelson acted negligently when he violated state law (section 167.117 of the Revised Missouri Statutes) by failing to report his own "prior sexual abuse" of other children, which led to his subsequent conduct (as described in the General Allegations) involving Jane Doe.
Count V - Negligence, alleging Nelson had a duty to protect students (including Jane Doe) from unreasonable risk of harm. Count V alleges Nelson breached this duty by "negligently and carelessly touching Jane Doe in an inappropriate and sexual manner;" "negligently and carelessly providing Jane Doe with items in exchange for her trust;" and "negligently and carelessly committing other acts and omissions as yet unknown to Plaintiffs."
Count VI - Negligent infliction of emotional distress, alleging that the negligent acts specified in Count V caused Jane Doe to "suffer[ ] medically diagnosable and medically significant emotional distress." The relationship between Count V and Count VI is made clear in paragraphs 84 and 85, which specifically allege that this count depends on the duties and breaches contained in Count V. The relationship between Counts V and VI and the allegations of sexual misconduct is established not only by the reincorporation of paragraphs 22 and 23, but by the allegation in paragraph 86 that Nelson "knew or should have known that continuous sexual abuse by a teacher involved an unreasonable risk of causing emotional distress for Plaintiff Jane Doe."
Count VII - Assault and battery, alleging Nelson "attempted and succeed[ed] in causing offensive and/or harmful physical contact" with Jane Doe.
Count VIII - Childhood sexual abuse brought pursuant to section 537.046 of the Revised Missouri Statutes. This statute creates a cause of action for anyone under the age of eighteen who is the victim of an act that violates various criminal provisions. In this case, Count VIII specifies that it is based on section 566.090, which defines the crime of first degree sexual misconduct as "purposely subject[ing] another person to sexual contact without that person's consent." Paragraph 102 ...