FACTS

A 23 year old ballerina student brought claims of sexual assault occurring on a work-related trip far from home, against a 43 year old instructor/ employee of the school and officer of its business.

Recent Massachusetts Appeals Court case dismisses claims that insurers have to defend the conduct alleged in this case. Marculetiu v. Safety Insurance Co. (AC 19-P-1407)

Allegations of the complaint measure duties of insurer; this complaint alleged (in addition to sexual assault claims which all agreed were not covered) – breach of fiduciary duty, negligence (hiring and failing to supervise) and false imprisonment.

ISSUE

The defendant Marculetiu denied all claims but sought a defense from his busines owner’s CGL insurance and from his homeowner’s insurance.

HOLDING

No duty to defend on these facts and this complaint by either the homeowner’s or business owners’ insurance.

REASONS

The homeowner’s insurance excludes business pursuits. All of the events charged in the complaint occurred on a foreign visit to a ballet competition. 

The CGL policy has grants of coverage carved back by exclusions. Insurance policy language tries to block coverage for claims of sexual assault.

The ballet school instructor was ‘an insured’ under the business policy for acts in the scope of his employment to further the employers’ business.

Where the acts in question plainly do not fall within the scope of the employment – no coverage is afforded. The actions that the instructor/employee took, can in no way be interpreted as being in the scope of the employment or furthering any interest of the employer.

Negligent hiring and supervision were inapplicable because the individual defendant was the director and can’t be accused of careless hiring of himself. Insurers don’t have to defend rape and sexual assault claims against individuals, nor in this case, companies either.

COMMENT

Claimants want insurance to pay for sexual assault; insurers write policy language so they don’t even have to defend.