United States Court of Appeals,
Fifth Circuit.
No. 95-50924.
CANUTILLO INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellee,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,
Defendant-Appellant.
Nov. 13, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before DUHÉ, JONES and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
National Union Fire Insurance Company ("National Union")
sought a declaratory judgment that it had no duty under a contract
of insurance to defend or indemnify Canutillo Independent School
District ("Canutillo") against certain claims brought by third
parties. Canutillo counterclaimed for breach of those duties,
breach of the duty of good faith and fair dealing, gross
negligence, and violations of the Texas Insurance Code and the
Texas Deceptive Trade Practices Act ("DTPA"). After realigning the
parties, the district court granted partial summary judgment in
favor of Canutillo on the duties to defend and indemnify, and a
jury awarded damages in favor of Canutillo on the remaining claims.
National Union now appeals. We reverse both the district court's
grant of summary judgment and the jury award and render judgment in
favor of National Union.
I
1
Canutillo purchased a School Leaders Errors and Omissions
Policy ("Policy") from National Union. Under the Policy, National
Union agreed to indemnify Canutillo for damages resulting from
certain legal claims against it and to defend any action or suit
against Canutillo covered by the Policy.
In 1991, the parents of five second-grade girls alleged that
their children had been sexually abused by Tony Perales
("Perales"), a health and physical education teacher at Canutillo
Elementary School. Perales was later tried and convicted for his
offenses. The fact of Perales's sexual molestation is undisputed
in this appeal.
Canutillo notified National Union of the abuse and requested
that it defend Canutillo against any potential lawsuits by the
families of the victims. Prior to the onset of litigation, the
families offered to settle all claims against Canutillo for $30,000
per family, or a total of $150,000. Canutillo rejected the
settlement, and the families filed suit against the school district
in the Western District of Texas asserting claims under state law
and 42 U.S.C. § 1983. The lawsuit was styled Mendoza v. Canutillo
I.S.D., Civil Action No. EP-91-CA-322 (W.D.Tex.) ("Mendoza ").
Canutillo then contacted National Union and again demanded that
National Union defend it under the Policy. National Union,
however, denied coverage and refused to assume representation,
expressly relying on the Policy's exclusions for claims arising out
of criminal conduct, assault, battery, and bodily injury.
National Union consulted attorney James L. Gallagher
2
("Gallagher") for an expert opinion as to whether the Policy
covered the Mendoza claims. Gallagher concluded that National
Union did not have a duty to defend Canutillo under the Policy and
recommended that National Union file a declaratory judgment action.
Rather than file such an action immediately, however, National
Union offered to defend Canutillo, provided that Canutillo waive
any bad faith claims against it. Canutillo, however, declined the
offer and proceeded to defend the litigation without National
Union's representation.
The Mendoza plaintiffs twice amended their complaint during
the course of the litigation. The second amended complaint
abandoned the state law tort claims and the § 1983 claim against
Canutillo, asserted a § 1983 claim against Perales, and sought
damages as well as declaratory and injunctive relief against
Canutillo under Title IX of the Education Amendments of 1972, 20
U.S.C. §§ 1681-1688.1 Given the substantial differences between
the first and second amended complaints, National Union again
consulted Gallagher concerning its duties and liabilities under the
Policy. Gallagher concluded that while the Policy did not cover
suits for money damages arising out of Perales's sexual abuse,
National Union had a duty to defend Canutillo on the basis of the
1
During the pendency of the Mendoza litigation, the Supreme
Court in Franklin v. Gwinnett County Public Schools, 503 U.S. 60,
112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), ruled that a plaintiff may
recover money damages for a teacher's sexual abuse of a student in
a private cause of action under Title IX.
3
nonpecuniary claims asserted under Title IX.2 National Union
therefore assumed Canutillo's defense for the remainder of the
litigation, but reserved its right to seek a declaratory judgment
with respect to its duty to indemnify Canutillo.
Canutillo settled the Mendoza claims on the eve of trial for
a total of $1,040,000. Canutillo paid $40,000 in partial
satisfaction of the judgment, and National Union purchased the
remainder of the judgment from the Mendoza plaintiffs for $1
million. National Union thus stepped into the shoes of the Mendoza
plaintiffs and became a judgment creditor of Canutillo. The
settlement agreement conditioned National Union's right to recover
the $1 million paid in purchase of the judgment on the outcome of
a subsequent declaratory judgment action.
National Union exercised its right under the settlement
agreement and filed a declaratory judgment action against
Canutillo. Canutillo counterclaimed seeking (1) a judgment
declaring that the Policy covers the Mendoza claims; (2) contract
damages, including both the costs of defending the Mendoza claims
before National Union assumed Canutillo's defense and the $40,000
paid in partial satisfaction of the settlement; and (3) money
damages for National Union's alleged breach of the duty of good
faith and fair dealing and violations of the DTPA and article 21.21
2
Endorsement 41267 to the Policy expanded Canutillo's coverage
by deleting exclusion (d) of the standard printed policy.
Exclusion (d) provided that the Policy "does not apply to any
claims for nonpecuniary relief; however, the Company shall defend
such claims in accordance with Insuring Agreement 2 subject to an
aggregate limit of $100,000."
4
of the Texas Insurance Code. The district court realigned the
parties, casting Canutillo as plaintiff and National Union as
defendant.
Both parties moved for summary judgment on the issues of
whether National Union had a duty to defend Canutillo prior to the
filing of the second amended complaint and whether National Union
had a duty to indemnify the school district for damages paid in
settlement of the action. One week before trial, the district
court, without opinion, entered partial summary judgment in favor
of Canutillo on both issues.
The case therefore proceeded to trial on the remaining issues
of contract damages, alleged breaches of the duty of good faith and
fair dealing, and for violations of the Insurance Code and the
DTPA. The jury found against National Union on every issue and
found that the insurer had acted with gross negligence in refusing
to represent to the school district. The jury awarded actual
damages of $33,162 for Canutillo's defense costs, $40,000 for its
share of the Mendoza settlement, and more than $7 million in
punitive damages.
After the verdict, National Union moved for reconsideration of
the district court's summary judgment rulings. The court withdrew
its earlier orders and issued an opinion that again granted summary
judgment in Canutillo's favor on the duty-to-defend issue. Noting
that the duty to indemnify, unlike the duty to defend, is
determined by the actual facts that underlie and result in
liability, the court reopened the record and ordered the parties to
5
submit further evidence and briefing. After consideration of the
parties' submissions, the court issued a second opinion granting
summary judgment in favor of Canutillo on the issue of National
Union's duty to indemnify. Canutillo Indep. School Dist. v.
National Union Fire Ins. Co., 900 F.Supp. 844 (W.D.Tex.1995). The
court then entered judgment in favor of Canutillo for
$7,173,791.51, plus attorneys' fees. National Union filed motions
for judgment as a matter of law and for a new trial, both of which
the court denied. National Union now appeals.
II
National Union first contends that the district court
improperly granted Canutillo's motions for partial summary judgment
on the duty to defend and the duty to indemnify.
A
We review a grant of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir.1993). The district court's interpretation of an insurance
contract is a question of law that we also review de novo.
Principal Health Care of La., Inc. v. Lewer Agency, Inc., 38 F.3d
240, 242 (5th Cir.1994); F.D.I.C. v. Mijalis, 15 F.3d 1314, 1319
(5th Cir.1994).
Texas rules of contract interpretation control in this
diversity case. See Amica Mut. Ins. Co. v. Hoak, 55 F.3d 1093,
1095 (5th Cir.1995); Matter of Haber Oil Co., Inc., 12 F.3d 426,
443 (5th Cir.1994); TEX.INS.CODE ANN. art. 21.42 (West 1981). Under
Texas law, the interpretation of insurance contracts is governed by
6
the same rules that apply to contracts generally. Forbau v. Aetna
Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). The terms used in
an insurance policy are to be given their ordinary and generally
accepted meaning, unless the policy shows that the words were meant
in a technical or different sense. Security Mut. Cas. Co. v.
Johnson, 584 S.W.2d 703, 704 (Tex.1979). The contract is to be
considered as a whole, with each part given effect and meaning.
Forbau, 876 S.W.2d at 133.
When considering the propriety of a grant of summary judgment
in a case involving the construction of an insurance policy, we
must determine whether the applicable terms of the policy are
ambiguous. Yancey v. Floyd West & Co., 755 S.W.2d 914, 917
(Tex.App.—Fort Worth 1988, writ denied). The determination of
ambiguity is a question of law; "it is only through resolution of
ambiguities through the resort to extrinsic evidence which creates
a question of fact." Brooks, Tarlton, Gilbert, Douglas & Kressler
v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987).
A contract is ambiguous if it is reasonably susceptible of two
different meanings. Coker v. Coker, 650 S.W.2d 391, 393
(Tex.1983). When the terms of an insurance policy are clear and
unambiguous a court may not vary those terms. Royal Indem. Co. v.
Marshall, 388 S.W.2d 176, 181 (Tex.1965).
Although the insured bears the burden of showing that the
claim against it is potentially within the policy's coverage,
Sentry Ins. v. R.J. Weber, 2 F.3d 554, 556 (5th Cir.1993), the
insurer bears the burden of establishing that an exclusion in the
7
policy constitutes an avoidance of or affirmative defense to
coverage. TEX.INS.CODE art. 21.58(b). Exceptions and limitations
in an insurance policy are strictly construed against the insurer.
Kelly Assoc., Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596
(Tex.1984). Therefore, "we must adopt the construction of an
exclusionary clause urged by the insured as long as that
construction is not itself unreasonable, even if the construction
urged by the insurer appears to be more reasonable or a more
accurate reflection of the parties' intent." Barnett v. Aetna Life
Ins. Co., 723 S.W.2d 663, 666 (Tex.1987) (quoting Glover v.
National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.1977)). These
special rules favoring the insured, however, are applicable only
when there is an ambiguity in the policy; if the exclusions in
question are susceptible to only one reasonable construction, these
rules do not apply. Puckett v. United States Fire Ins. Co., 978
S.W.2d 936, 938 (Tex.1984); National Union Fire Ins. Co. v. Hudson
Energy Co., Inc., 811 S.W.2d 552, 555 (Tex.1991).
B
In determining whether an insurer has a duty to defend an
insured against a third-party complaint, Texas courts follow the
"eight corners" or "complaint allegation" rule. Gulf Chem. &
Metallurgical Corp. v. Associated Metals & Minerals Corp., 1 F.3d
365, 369 (5th Cir.1993). This rule "requires the trier of fact to
examine only the allegations in the [underlying] complaint and the
insurance policy in determining whether a duty to defend exists."
Id. It is inappropriate to consider "facts ascertained before the
8
suit, developed in the process of the litigation, or by the
ultimate outcome of the suit." Id. (quoting American Alliance Ins.
Co. v. Frito-Lay, Inc., 788 S.W.2d 152, 153-54 (Tex.App.—Dallas
1990, writ dism'd)).
The duty to defend arises only when the facts alleged in the
complaint, if taken as true, "potentially state a cause of action
within the terms of the policy." Id. (quoting Continental Sav.
Ass'n v. United States Fidelity & Guar. Co., 762 F.2d 1239, 1243
(5th Cir.) (emphasis in original), opinion amended on other
grounds, 768 F.2d 89 (5th Cir.1985)). An insurer is obligated to
defend an insured as long as the complaint alleges at least one
cause of action within the policy's coverage. Rhodes v. Chicago
Ins. Co., 719 F.2d 116, 119 (5th Cir.1983).
The duty to defend is determined by examining the latest
amended pleading upon which the insurer based its refusal to defend
the action. Rhodes, 719 F.2d at 120. In the instant case, the
relevant pleading is the first amended complaint because National
Union assumed Canutillo's representation after the second amended
complaint was filed.
In contrast to the duty to defend, the duty to indemnify is
not based on the third party's allegations, but upon the actual
facts that underlie the cause of action and result in liability.
Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d
22, 25 (Tex.1965); American Alliance, 788 S.W.2d at 153-54. In
this case, because the parties settled the Mendoza litigation out
of court, the actual facts resulting in liability were not
9
ascertained. Therefore, to provide a record for the court, the
parties stipulated that the facts as alleged in the second amended
complaint were those upon which the district court was to base its
determination on the duty to indemnify. We, too, must limit our
inquiry to the facts as alleged in the complaint. With these rules
in mind, we now turn to the Policy and the pleadings.
The general coverage provision of the Policy (the "Errors and
Omissions" clause) obligates National Union to indemnify Canutillo
for any damages for which Canutillo may become legally obligated to
pay as a result of claims brought against it by third parties for
any "Wrongful Act ... of the Insured or of any other person for
whose actions the Insured is legally responsible...." The Policy,
however,
does not apply: (a) to any claim involving allegations of ...
criminal acts or omissions; ... (b) to any claims arising out
of (1) false arrest, detention or imprisonment; ... [or] (3)
assault or battery; ... [and] (c) to any claim arising out of
bodily injury to, or sickness, disease or death of any
person....
(emphasis added).
The Mendoza plaintiffs' original amended complaint alleged
five causes of action against the school district and against
individual employees other than Perales:
(1) a 42 U.S.C. § 1983 claim alleging violations of various
Fourteenth Amendment rights based on the defendants' failure
to prevent Perales' sexual abuse;
(2) negligence and gross negligence in failing to prevent Perales'
sexual abuse;
(3) breach of an affirmative duty to provide for the protection of
the children;
(4) intentional infliction of emotional distress; and
10
(5) the tort of detention, based on allegations that the school
district held the children against their will and prevented
their escape from the sexual abuse by Perales.3
The plaintiffs' second amended complaint dropped the state law tort
claims and the § 1983 claim against Canutillo. Instead, they
asserted a Title IX claim against the school district based on its
failure to prevent Perales's abuse and its failure to implement
grievance policies and procedures as required under the regulations
implementing Title IX. 34 C.F.R. § 106.8(b) ("A recipient shall
adopt and publish grievance procedures providing for prompt and
equitable resolution of student and employee complaints alleging
any action which would be prohibited by this part").
In its motions for summary judgment, National Union asserted
that each of the cited policy exclusions supported its refusal to
defend Canutillo and obviated its duty to indemnify it for damages
paid in settlement of the Title IX claim. The district court,
however, held that National Union was obligated to defend Canutillo
based on the fourth cause of action—intentional infliction of
emotional distress—because (a) a claim for intentional infliction
of emotional distress does not allege criminal conduct; (b) it is
unclear under Texas law whether mental anguish constitutes bodily
injury, and any doubt must be construed against the insurer; and
(c) the actions of the other teachers against whom the claim of
intentional infliction of emotional distress was asserted did not
"arise out of" the conduct of Perales for the purposes of the
3
The parties do not dispute that exclusion (b)(1) precludes
coverage for the Mendoza plaintiffs' fifth cause of action for
detention.
11
assault and battery exclusion. In its second summary judgment
opinion, the court held that National Union must indemnify
Canutillo because the Title IX claim asserted against it arises out
of the omissions of the school district, not Perales's sexual
assaults.
At the outset, we note that the sexual assaults constitute
criminal acts under Texas law. Under the plain language of the
policy, any claim "involving" allegations of Perales's criminal
acts is therefore excluded under exclusion (a). Because Perales's
acts also constitute assault and battery,4 any claim "arising out
of" his actions is excluded under exclusion (b)(3). Furthermore,
both complaints allege that the children suffered physical injury
as a result of the sexual molestation; any claim "arising out of"
that physical injury is also excluded under exclusion (c).5 The
4
A person commits assault and battery when he "intentionally
or knowingly causes physical contact with another when the person
knows or should reasonably believe that the other will regard the
contact as offensive or provocative." TEX.PENAL CODE ANN. § 22.01(a)
(West 1994); Childers v. A.S., 909 S.W.2d 282, 292-293
(Tex.App.—Fort Worth 1995, no writ). "The definition of an assault
is the same whether it is the subject of a criminal prosecution or
a civil suit for damages." Hogenson v. Williams, 542 S.W.2d 456,
457 (Tex.App.—Texarkana 1976, no writ).
5
The parties dispute whether mental anguish constitutes
"bodily injury" for the purposes of the bodily injury exclusion.
The district court focused on the fact that mental anguish does not
constitute "bodily injury" when it held that exclusion (c) did not
apply to the claim for intentional infliction of emotional
distress. The court relied on our decision in Travelers Indem. Co.
v. Holloway, 17 F.3d 113, 115 (5th Cir.1994), in which we held that
mental anguish alone does not constitute "bodily injury" under
Texas law. Holloway, however, is inapposite in that the complaint
at issue intimated no allegation whatsoever of physical injury, but
only allegations of emotional anguish and trauma. Id.; see also
Miller v. Windsor Ins. Co., 923 S.W.2d 91, 97 (Tex.App.—Fort Worth
1996, writ requested) ("It is well established that mental anguish
12
complaints are replete with explicit allegations of Perales's
sexual molestation; our inquiry therefore focuses solely on the
import of the nexus phrases in the exclusions.
The district court held that the nexus phrases do not preclude
coverage for claims against the school district and persons other
than Perales. We disagree. The district court erred in focusing
on the formal causes of action asserted rather than upon the
factual allegations supporting the claims.
Relying on Truman v. United States, 26 F.3d 592 (5th
Cir.1994), the court reasoned in its first summary judgment opinion
as follows:
In Truman, the court considered "arising out of" language [in
the assault and battery exclusion to the United States's
waiver of sovereign immunity in the Federal Torts Claims Act
("FTCA") ] similar to that contained in the insurance policy
in the case at bar. There the court found that because the
claim for intentional infliction of emotional distress is not
and loss of consortium damages suffered by one not involved in an
actual accident are not bodily injuries."). The original Mendoza
complaint does, in fact, claim physical injuries sustained by the
children. Texas law subsequent to our holding in Holloway suggests
that when emotional distress is concomitant with manifestations of
physical injury, "an allegation of mental anguish implicitly raises
a claim for the resulting physical manifestations." See Trinity
Universal Ins. Co. v. Cowan, 906 S.W.2d 124, 130-31
(Tex.App.—Austin 1995, writ granted).
Cowan, however, offered an expansive interpretation of
"bodily injury" to provide coverage for the insured, not to
exclude it. Moreover, the mental anguish in Cowan was itself
the source of the physical injuries, causing "headaches,
stomachaches, and loss of sleep as a result of [the] emotional
distress." We consequently decline to extend Cowan to the
facts in this case, especially where to do so is unnecessary
to the disposition of the appeal. Even if mental anguish is
not "bodily injury" such that a claim "for" mental anguish is
not excluded, the Policy is broader, precluding coverage for
a claim for intentional infliction of emotional distress if it
merely "aris[es] out of" bodily injury.
13
a claim for assault, battery or slander the claim was not
excluded by the FTCA.
Thus, the court concluded that the Mendoza plaintiffs' claim was
likewise not excluded under the Policy.
Our holding in Truman, however, does not stand for the
proposition that a claim for intentional infliction of emotional
distress can never "arise out of" an assault and battery. On the
contrary, we emphasized the need to examine the underlying conduct
alleged in the petition; "[e]ven if a plaintiff styles a claim so
that it is not one that is enumerated in [the exclusions], the
plaintiff's claim is still barred "when the underlying ... conduct
"essential" to the plaintiff's claim can fairly be read to "arise
out of" conduct that would establish an excepted cause of action.'
" Id. at 594 (citing McNeily v. United States, 6 F.3d 343, 347
(5th Cir.1993)); cf. Garcia v. United States, 776 F.2d 116 (5th
Cir.1985) (barring FTCA claim against the government for negligent
supervision of military recruiter who sexually assaulted
plaintiff). In Truman, the plaintiff's claim for intentional
infliction of emotional distress did not "arise out of" an assault
and battery because the plaintiff had never been assaulted. By
contrast, the first amended Mendoza complaint clearly and
repeatedly alleges that the plaintiffs were sexually assaulted and
physically abused by Perales. The district court nonetheless
asserted that
there were allegations of facts that might give rise to the
conclusion that assault, battery or bodily injury may have
occurred, but not at the hands of other teachers, on whom the
claim of intentional infliction of emotional distress is laid.
What Perales did or did not do is not relevant in any way to
14
the conduct of the other teachers. There is no indication of
any physical contact by other teachers that might give rise to
one of the exclusions.... [T]he pleadings stated a cause of
action based on the conduct of other teachers separate from
the actions of Perales; the conduct of other teachers was not
excluded by the plain language of the policy.
Order at 7 (emphasis added).
Texas courts, however, when determining whether an exclusion
in an insurance contract applies, examine the factual allegations
showing the origin of the damages rather than the legal theories
asserted by the plaintiff. Duncanville Diagnostic Ctr., Inc. v.
Atlantic Lloyds Ins. Co. of Tex., 875 S.W.2d 788, 789
(Tex.App.—Eastland 1994, writ denied); Adamo v. State Farm Lloyds
Co., 853 S.W.2d 673, 676 (Tex.App.—Houston [14th Dist.] 1993, writ
denied), cert. denied, --- U.S. ----, 114 S.Ct. 1613, 128 L.Ed.2d
340 (1994) (same); Burlington Ins. Co. v. Mexican American Unity
Council, Inc., 905 S.W.2d 359, 360 (Tex.App.—San Antonio 1995, no
writ) (same). Where the legal claims asserted by the plaintiffs
are not independent and mutually exclusive, but rather related to
and dependent upon excluded conduct, the claims are not covered,
even if asserted against an insured who did not himself engage in
the prohibited conduct. Burlington Ins. Co., 905 S.W.2d at 362.
For example, in Fidelity & Guaranty Insurance Underwriters,
Inc. v. McManus, 633 S.W.2d 787 (Tex.1982), the Texas Supreme Court
held that a claim for negligent entrustment of a vehicle arose out
of the "use ... of any recreational motor vehicle owned by the
insured" and was therefore excluded from coverage, even though the
insured was not himself using the vehicle at the time the accident
occurred. "Essential to recovery ... is negligent entrustment by
15
the owner or custodian of the instrumentality, plus its negligent
operation or use by the entrustee. Whether the entrustment is to
an insured or non-insured, the plaintiff must still show negligent
operation or use ... as an element of the cause of action." Id. at
790.
Similarly, in Garrison v. Fielding Reinsurance, Inc., 765
S.W.2d 536, 537 (Tex.App.—Dallas 1989, writ denied), the court
rejected the contention that because the underlying complaint
alleged negligence on the part of the insured rather than assault
and battery, the suit did not involve a "claim arising out of
assault and battery" for the purposes of the exclusion at issue.
The court held that the claims for negligence were excluded from
coverage under the unambiguous terms of the policy where the
plaintiffs "would never have brought a lawsuit against [the
insured] absent the assault and battery committed by the unknown
assailant." Id. at 538.
Furthermore, in Duncanville Diagnostic Center, 875 S.W.2d at
792, the parents of a girl who died after receiving negligent
medical treatment sued the insured medical center for negligent
hiring, training, supervision, and failure to institute adequate
policies and procedures. A professional services exclusion to a
general liability policy precluded coverage for the actual acts of
malpractice. The Texas appellate court held that where the
injuries alleged in the complaint would not have occurred but for
the malpractice, the derivative claims against the insured were
also excluded. Accord Burlington Ins. Co., 905 S.W.2d at 362
16
(barring coverage for negligence claim under assault and battery
exclusion where there would have been no basis for suit absent
assault and battery); Centennial Ins. Co. v. Hartford Accident and
Indem. Co., 821 S.W.2d 192, 194 (Tex.App.—Houston [14th Dist.]
1991) (finding no coverage for claim of negligent hiring where
negligent hiring, by itself and without excluded conduct of
employee, would not give rise to cause of action against employer);
see also Old Republic Ins. Co. v. Comprehensive Healthcare Assoc.,
Inc., 2 F.3d 105, 109 (5th Cir.1993) (holding that negligence and
slander claims against insured were not covered where underlying
intentional sexual harassment by insured's agent was excluded);
Columbia Mut. Ins. Co. v. Fiesta Mart, Inc., 987 F.2d 1124, 1128
(5th Cir.1993) (holding that where liability of insured and
liability of its agent were "related and interdependent," court
must look to whether agent's fraud was covered by policy); cf.
Commercial Union Ins. Co. v. Roberts, 7 F.3d 86, 89-90 (5th
Cir.1993) (holding that claim against doctor for failing to take
precautions against his own pedophilia was excluded where there
would have been no injury absent underlying sexual molestation).
We find that Texas law is clear: where a claim against an
insured would not exist "but for" conduct explicitly excluded by
the policy, the dependent claims are also not covered under the
policy, regardless of whether the insured against whom the
derivative claims are directed actually engaged in the excluded
acts. The language in the exclusions at issue in this appeal do
17
not warrant limiting the application of this rule.6
When we examine the factual allegations giving rise to the
damages in this case, we find that they clearly contradict the
district court's holding that the claims alleged in the first
Mendoza complaint are independent of Perales's actions. The
gravamen of the first three causes of action in the first complaint
is that the school district and the individual defendants were
negligent in their supervision of Perales, that they failed to
protect the children from Perales's actions, and that they failed
to implement policies and procedures that would have prevented or
detected Perales's conduct.7 The negligence and failure to protect
6
We recognize that the policy provision in this case differs
in varying degrees from the provisions construed in the cases cited
above; some of the provisions are arguably broader, some are
certainly narrower. The exclusion construed in McManus, for
example, was narrower, stating simply that coverage "shall not
apply ... to the ... use [of] any recreational motor vehicle,"
rather than to any claim "arising out of" such use. The words
"arising out of" are not "words of narrow and specific limitation,
but are broad, general, and comprehensive terms.... They are
ordinarily understood to mean "originating from,' "having its
origin in,' "growing out of,' or "flowing from,' or in short,
"incident to,' or "having connection with'...." Red Ball Motor
Freight v. Employers Mut. Liab. Ins. Co., 189 F.2d 374, 378 (5th
Cir.1951).
7
The fact that the Mendoza plaintiffs alleged a cause of
action under § 1983 does not change the character of the claim;
the factual allegations underlying the damages control, not the
formal cause of action asserted. See, e.g., Burlington Ins. Co.,
905 S.W.2d at 360. At its core, § 1983 is a statutory means of
holding governmental entities legally responsible for the actions
of their employees where the governmental entity somehow "caused"
the employee to harm another. Monell v. Department of Social
Serv., 436 U.S. 658, 691-692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611
(1978). The Mendoza plaintiffs sought to satisfy the causation
element of the cause of action by asserting that Canutillo "failed
to develop and maintain a complete program of detection and
prevention of child abuse." While there are certainly vast
differences between a § 1983 claim and a common law claim for
18
would not themselves have been actionable where the only damages
alleged stem from Perales's sexual abuse. Furthermore, with
respect to the claim for intentional infliction of emotional
distress, the Mendoza plaintiffs specifically alleged that
"Defendants' conduct was the proximate cause of serious harm to the
children as specified above in paragraph 25." Paragraph 25 states
that "Defendants' actions and inactions have caused plaintiffs to
be assaulted and harmed...." Moreover, the complaint sets forth in
graphic detail the sexual assaults committed by Perales and alleges
that the other teacher-defendants "creat[ed] a hostile and
threatening atmosphere discouraging the children from making
complaints of the abuse they suffered...." While the teachers'
failure to adequately respond to the children's complaints of abuse
may have exacerbated the emotional injuries of the children, there
clearly would have been no injury at all absent that abuse.
Therefore, under Texas law, Perales's abuse and the claims asserted
in the first amended complaint are not independent and mutually
exclusive but rather related and interdependent.
With respect to the Mendoza plaintiffs' second amended
complaint, we find that the Title IX claim asserted against
Canutillo is likewise related to, and dependent upon, Perales's
criminal sexual assault.8 The basic thrust of the plaintiffs'
negligent failure to establish policies and procedures such as that
excluded in Duncanville Diagnostic Center, none are relevant to the
interpretation of the Policy. In both cases, but for the excluded
conduct, there would have been no basis for liability.
8
Title IX states, in relevant part, that "[n]o person in the
United States shall, on the basis of sex, be excluded from
19
claim was that the school district failed to prevent Perales's
abuse and failed to implement grievance policies and procedures as
required under the regulations implementing Title IX. 34 C.F.R. §
106.8(b).
The district court, citing Rosa H. v. San Elizario Independent
School District, 887 F.Supp. 140 (W.D.Tex.1995), held that although
liability under Title IX for sexual misconduct by a teacher
requires two distinct actions, one on the part of the employee and
one on the part of the school district, "it is the conduct of the
school district which gives rise to the cause of action and is at
the heart of any Title IX claim." 900 F.Supp. at 847.9 The court
continued:
A suit under Title IX alleges that the school district has
failed to implement policies or procedures to prevent or
discover incidents of sexual discrimination or, as in Rosa H.,
that once the discrimination has been discovered [it] failed
to act in an appropriate manner. In other words, the suit
alleges that Canutillo made an error or omission by failing to
comply with Title IX. Tony Perales did not violate Title IX.
While his conduct was certainly discriminatory, without some
action by Canutillo the cause of action under Title IX cannot
be sustained.... The Title IX claim does not "arise out of"
participation in, be denied the benefits of, or be subjected to
discrimination under any educational program or activity receiving
Federal financial assistance...." 20 U.S.C. § 1681(a) (1990). The
Supreme Court has determined that a private right of action is
implied under Title IX, and a private plaintiff may receive
monetary damages as well as injunctive and declaratory relief.
Franklin, 503 U.S. at 75, 112 S.Ct. at 1037-38.
9
The court in Rosa H. correctly noted that this court has yet
to address the proper standard for imputed liability under Title
IX. Cf. Leija v. Canutillo I.S.D., 887 F.Supp. 947 (W.D.Tex.1995)
(imposing strict liability on the school district for teacher's
sexual abuse of student). We need not determine the proper
standard here since under either a negligence or strict liability
regime, the Mendoza plaintiffs' Title IX claims "arises out of"
Perales's sexual assaults.
20
the conduct of Tony Perales, it arises out of the inactions of
Canutillo, thus the exclusion does not apply.
Id. at 847-48.
When we look past the formal cause of action asserted to the
factual allegations of the complaint, however, we again fail to
discern a relevant difference between a statutory Title IX cause of
action in this instance and the common law claim for negligent
failure to institute adequate policies and procedures excluded from
coverage in Duncanville Diagnostic Center. Moreover, we note that
although a separate act or omission on the part of Canutillo may be
necessary for liability under Title IX, it is not sufficient for
recovery under the statute. There must have been some
discriminatory act on the part of the school district or its
agents. Rowinsky v. Bryan Ind. Sch. Dist., 80 F.3d 1006, 1008 (5th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 165, --- L.Ed.2d
---- (1996). In Rowinsky, we held that allegations of peer sexual
harassment were insufficient to form the basis of a cause of action
under Title IX absent allegations that the school district itself
or one of its employees discriminated on the basis of sex.
Allegations that the school district condoned the harassment by
failing to respond to the victim's complaints were not themselves
acts of discrimination absent a showing that the school district
responded to complaints of harassment differently on the basis of
sex. Id. at 1016. The Mendoza complaint alleges no act of sexual
discrimination on the part of the school district other than
Perales's acts. The complaint does not allege that the school
district responded to complaints of sexual abuse from girls any
21
differently than claims from boys. Furthermore, we note that while
injunctive relief may be available for failure to adopt Title IX's
grievance policies and procedures, such a failure is not itself an
act of discrimination that may form the basis of an award of
damages. Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir.1996).
Therefore, "but for" Perales's actions, there would have been no
basis for damages under Title IX.
Canutillo nonetheless defends the district court's decisions
on two distinct grounds. First, it contends that National Union's
interpretation of the Policy would render the Errors and Omissions
clause meaningless because National Union would never be obligated
to pay damages on behalf of its insured.
We agree that an interpretation is unreasonable if it would
strip a provision of meaning. Lafarge Corp. v. Hartford Casualty
Ins. Co., 61 F.3d 389, 396 (5th Cir.1995); Ideal Mut. Ins. Co. v.
Last Days Evangelical Assoc., 783 F.2d 1234, 1238 (5th Cir.1986).
National Union, however, offers several examples of claims for
which it would be liable to indemnify Canutillo. For example,
wrongful termination claims seeking compensatory damages would fall
within the Errors and Omissions clause of the Policy,10 as would
Title IX claims seeking monetary damages that do not arise out of
10
Claims for backpay are specifically excluded under exclusion
(f). Claims for compensatory damages for reputational harm,
however, would be covered by the Policy. We disagree with
Canutillo's assertion made at oral argument that reputational harm
constitutes "bodily injury" under National Union's interpretation
of the Policy.
22
a sexual assault or other criminal act.11 Other examples include
claims for damages under the Americans with Disabilities Act, 20
U.S.C. §§ 1400 et seq., claims for copyright infringement, and
constitutional claims for discrimination other than on the basis of
race or national origin.12 We need not set forth an exhaustive list
of hypotheticals to conclude that the Errors and Omissions clause
is still meaningful under National Union's interpretation. See
Celestino v. Mid-American Indem. Ins. Co., 883 S.W.2d 310, 313
(Tex.App.—Corpus Christi 1994, writ denied) (stating that
unambiguous exclusion must be given effect unless it wholly repugns
more general provision). We therefore find National Union's
interpretation reasonable.
Second, Canutillo asserts that even if National Union's
interpretation is a reasonable one, its own interpretation is also
reasonable, thus demonstrating that the Policy is ambiguous.
Therefore, the district court properly construed the exclusions in
its favor. We disagree.
Canutillo proffers an alternative construction of the Policy's
exclusions that would preclude coverage only when the acts subject
11
For example, the Policy would cover damages paid as a result
of Title IX claims based on non-assaultive sexual harassment or
exclusion from sports programs on the basis of sex.
12
Exclusion (j) excepts claims "arising out of discrimination
because of race or national origin, or failure to integrate or
desegregate," but provides for defense of such claims up to
$50,000. We note that a later endorsement, however, provides that
the exclusion will not apply to claims of discrimination on the
basis of race or national origin brought by or on behalf of an
employee. Therefore, compensatory damages paid as a result of such
claims may also be covered.
23
to the exclusion were committed by the insured.13 The policy
defines the "Insured" to include the school district, members of
the board of education, trustees, and persons who hold
administrative positions such as superintendent and principal. By
endorsement, the parties amended the definition of insured to
include "any employee of the School District while acting within
the scope of his or her duties as such." Canutillo contends that
because Perales was not acting within the scope of his duties when
he committed the sexual abuse, he was not an insured for the
purposes of the exclusion. Therefore, Canutillo asserts, claims
arising out of his actions are covered by the Policy and trigger a
duty to defend.
The plain language of the Policy, however, demonstrates that
Canutillo's construction of the Policy is unreasonable as a matter
of law. In Texas, "[i]t is a long-established rule that "[n]o one
phrase, sentence, or section [of a contract] should be isolated
from its setting and considered apart from the other provisions.'
" Forbau, 876 S.W.2d at 134 (quoting Guardian Trust Co. v.
13
Canutillo cites Southern Farm Bureau Casualty Co. v. Adams,
570 S.W.2d 567 (Tex.App.—Corpus Christi 1978, writ ref'd n.r.e.),
and Heyward v. Republic National Life Insurance Co., 527 S.W.2d 807
(Tex.App.—San Antonio 1975), aff'd, 536 S.W.2d 549 (Tex.1976), in
support of this construction. We find that Heyward is factually
distinguishable. Furthermore, the appeals court in Adams held that
an insurance policy provided coverage for a negligence claim
against the insured for damages caused by a crop duster hired by
the insured, notwithstanding a provision in the policy excluding
any loss "arising out of the ... use ... of any aircraft," since
the insured did not personally use the aircraft. We find that this
holding directly conflicts with the Texas Supreme Court's opinion
in McManus decided four years later, and find McManus and its
progeny controlling.
24
Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938)). Because the
exclusions expressly modify the Errors and Omissions clause, we
must look at the exclusions with reference to the more general
provision. The blanket coverage provision specifically states that
National Union will pay damages resulting from any wrongful act "of
the Insured or of any other person for whose actions the Insured is
legally responsible...." The exclusions do not otherwise limit
their effect to acts of the insured alone. Since National Union
indemnifies Canutillo for the acts of those persons for whom the
district is legally responsible, then in the absence of language
limiting the exclusions, the policy likewise precludes coverage for
excluded acts committed by such persons. See Tarrant County Ice
Sports v. Equitable Gen. Life Ins. Co. of Okla., 662 S.W.2d 129,
131-32 (Tex.App.—Fort Worth 1983, writ ref'd n.r.e.) (holding that
where general coverage provision of policy defined covered
"accident" to include assault and battery committed by third
parties, later endorsement excluding injuries caused by assault or
battery without reference to identity of assaultor necessarily
excluded assaults by third-parties as well as by insured).
Moreover, Canutillo's interpretation would render the assault
and battery exclusion meaningless. A school district can act only
through its agents. As Canutillo points out, however, no agent of
the school district will ever act within the scope of his or her
duties when committing an assault or battery. The district court
opined that if any named insured such as a principal or
administrator had committed the sexual abuse, the exclusion would
25
arguably apply. We disagree. The Errors and Omissions clause
affords coverage only for wrongful acts committed "in the
performance of duties for the School District ...," and a wrongful
act is defined as "any actual or alleged breach of duty, neglect,
error, misstatement, misleading statement or omission committed
solely in the performance of duties for the School District...."
Because no person commits assault and battery in the performance of
his duties, no claim for assault and battery would have been
covered by the Policy even absent the assault and battery
exclusion, unless it were a derivative claim such as those asserted
by the Mendoza plaintiffs.14 Canutillo's interpretation excepting
such derivative claims from the reach of the exclusions thus
renders the assault and battery clause meaningless and redundant.15
14
We recognize that this reasoning does not apply to the bodily
injury exclusion. It is possible that a school district employee
may inflict bodily injury in the negligent performance of his or
her duties for the school district and therefore may be an
"Insured" committing a "Wrongful Act" for which damages may be
recovered in the absence of exclusion (c). However, the fact that
an interpretation of identical language ("arising out of") does not
render all exclusions meaningless does not make the interpretation
any less unreasonable, nor do we find warrant to apply different
interpretations to the language depending upon the exclusion in
which they appear. At any rate, the assault and battery exclusion
alone is sufficient to preclude coverage for all claims asserted
against Canutillo, notwithstanding the effect of the bodily injury
exclusion.
15
We furthermore reject Canutillo's assertion that the policy
is somehow ambiguous because it conflicts with Canutillo's
expectation that the policy would cover this type of claim. "[N]ot
every difference in the interpretation of ... an insurance policy
amounts to an ambiguity. Both the insured and the insurer are
likely to take conflicting views of coverage, but neither
conflicting expectations nor disputation is sufficient to create an
ambiguity." Forbau, 876 S.W.2d at 134. The objective intent of
the parties as evidenced in the Policy, when examined under Texas
law, excludes from coverage all the claims asserted,
26
We therefore find that the exclusions to the Policy relied
upon by National Union unambiguously preclude coverage for claims
that are related to and dependent upon allegations of Perales's
criminal sexual assaults. The district court erred in denying
National Union's motion for summary judgment and in granting
summary judgment in favor of Canutillo with respect to both the
duty to defend prior to the filing of the second amended complaint
and the duty to indemnify Canutillo for damages paid in settlement
notwithstanding Canutillo's subjective expectations. See Brooks,
Tarlton, Gilbert, Douglas & Kressler, 832 F.2d at 1364 (noting that
objective, not subjective, intent controls when the policy is
unambiguous).
We also disagree that the interpretation given the
identical exclusionary clauses by a North Carolina court in
Durham City Board of Education v. National Union Fire Ins.
Co., 109 N.C.App. 152, 426 S.E.2d 451 (1993, rev. denied),
evidences ambiguity in the Policy. The Durham court did not
find these clauses to be ambiguous, but rather held that under
North Carolina law, claims against a school board for
negligent supervision of a coach who raped a student did not
"arise out of" the coach's assault. This interpretation,
however, directly contradicts settled law in Texas as set
forth in McManus and its progeny. Merely because North
Carolina law differs from that of Texas does not render the
policy exclusions ambiguous. See, e.g., T.C. Bateson Constr.
Co. v. Lumbermans Mut. Cas. Co., 784 S.W.2d 692, 698
(Tex.App.—Houston [14th Dist.] 1989, writ denied) (rejecting
argument that exclusion is ambiguous as matter of law because
courts of different states have interpreted it differently);
Union Pacific Resources Co. v. Aetna Cas. & Sur. Co., 894
S.W.2d 401, 405 (Tex.App.—Fort Worth 1994, writ denied)
(noting split among courts but holding that "[n]either
conflicting views of coverage, nor disputation, is sufficient
to create an ambiguity"); Snydergeneral Corp. v. Century
Indem. Co., 907 F.Supp. 991, 997-98 (N.D.Tex.1995) (finding
that Texas courts do not hold policy terms to be ambiguous
each time there is split of authority). But see Pioneer Chlor
Alkali Co., Inc. v. Royal Indem. Co., 879 S.W.2d 920, 935
(Tex.App.—Houston [14th Dist.] 1994, no writ) (finding that
differing interpretations may evidence more than mere dispute
between insurer and insured).
27
of the Mendoza suit.
III
We furthermore find that Canutillo's claims for breach of the
duty of good faith and fair dealing and gross negligence fail as a
matter of law. One element of a bad faith claim is an absence of
a reasonable basis for denying or delaying payment of benefits.
Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 317 (Tex.1994).
Because we find that National Union had no duty to defend or to
indemnify under the Policy, its denial of coverage for the Mendoza
claims was reasonable, and there can be no breach of the duty of
good faith and fair dealing as a matter of law. Republic Ins. Co.
v. Stoker, 903 S.W.2d 338, 341 (Tex.1995).16 Moreover, the gross
negligence claim is predicated on the alleged bad faith breach of
the contract; where there was no bad faith, there could be no
gross negligence to support an award of punitive damages.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994).
Insofar as they are predicated on National Union's alleged bad
faith breach, Canutillo's claims under the DTPA and the Texas
Insurance Code are similarly meritless. Stoker, 903 S.W.2d at 341.
Canutillo, however, urges that the evidence was sufficient to
demonstrate that, at the time of purchase, National Union
misrepresented the scope of coverage, or at least made misleading
16
The parties dispute whether an insurer owes a duty of good
faith and fair dealing to its insured with respect to third-party
claims. See Soriano, 881 S.W.2d at 317 ("We have never held and do
not hold today that either of these two standards applies to
insurers in responding to third-party claims"). Because we find
that there is no breach, we need not reach this issue.
28
statements concerning the scope of coverage available under the
Policy in violation of § 17.46 of the DTPA and § 21.21 of the
Insurance Code. Our determination that National Union had no duty
to defend or to indemnify Canutillo is not dispositive of this
claim. Matthews v. Home Ins. Co., 916 S.W.2d 666, 670
(Tex.App.—Houston [1st Dist.] 1996, writ denied) (finding that
plaintiff's DTPA claims were not precluded by finding of no
coverage under policy where claims were "not for post-loss claims
handling, but for pre-loss misrepresentation of coverage").
When reviewing a denial of a motion for judgment as a matter
of law, we must use the same standard that the district court used
in first ruling on the motion—that is, whether there is a legally
sufficient evidentiary basis for a reasonable jury to find as it
did. FED.R.CIV.P. 50(a)(1); Hiltgen v. Sumrall, 47 F.3d 695, 699-
700 (5th Cir.1995). We must view the evidence and all reasonable
inferences in the light most favorable to the jury's determination.
Id.
The only claimed misrepresentation or misleading statement is
a letter from a representative of National Union sent to Canutillo
before it purchased the Policy. The letter stated that the Policy
covered, among other things, "[a]lleged violations of federal or
state constitutional civil rights." We find that this statement
cannot constitute a misrepresentation because, as we noted, the
Policy does in fact cover constitutional civil rights claims that
are not otherwise excluded, such as claims for sex discrimination
that do not arise out of assault, battery, bodily injury, or
29
involve criminal acts. Moreover, a reasonable jury could not find
that the statement was misleading where Canutillo was aware of the
Policy language at the time of purchase and Canutillo presented no
evidence that National Union ever assured it that civil rights
claims would be covered under the specific circumstances present
here. See Parkins v. Texas Farmers Ins. Co., 645 S.W.2d 775, 777
(Tex.1983) (holding that where insured was, in fact, covered for
some fire loss and insured presented no evidence that insurer ever
promised coverage against fire loss under circumstances at issue,
insured failed to prove misrepresentation); Matthews, 916 S.W.2d
at 670 (finding no misrepresentation where insured knew of
exclusion when he signed policy and alleged no oral
misrepresentations concerning coverage under policy for specific
loss incurred); Employers Cas. Co. v. Fambro, 694 S.W.2d 449, 451
(Tex.App.—Eastland 1985, error refused n.r.e.) (finding that mere
fact that insureds believed they were covered under all
circumstances in light of insurer's statement that coverage was
"adequate" or "sufficient" did not prove misrepresentation). We
therefore find that the district court erred in denying National
Union's motion for judgment as a matter of law with respect to
Canutillo's claims under the DTPA and § 21.21 of the Texas
Insurance Code.17
IV
For the foregoing reasons, we REVERSE the district court's
17
Because we find in favor of National Union on all claims, we
need not address National Union's contentions regarding evidentiary
points of error.
30
grant of partial summary judgment in favor of Canutillo on the duty
to defend and the duty to indemnify, REVERSE the jury's verdict and
damage award, and RENDER judgment in favor of National Union.
31