[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-10786 March 9, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-01062-CV-BU-M
EMPLOYERS MUTUAL CASUALTY COMPANY,
an insurance company incorporated in the State of Iowa,
Plaintiff-Appellant,
versus
FLETCHER MALLARD,
BARNIE GILLILAND,
Defendants,
JANICE SHRADER,
DEBRA LYNN MINNIX LIVINGSTON,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 9, 2005)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
In Employers Mutual Casualty Co. v. Mallard, 309 F.3d 1305 (11th Cir.
2002), Employers Mutual Casualty Company filed a declaratory judgment action
in the district court seeking a declaration that the insurance policy it issued to the
City of Attalla, Alabama, did not provide coverage for the actions of Officers
Fletcher Mallard and Barnie Gilliland, who sexually assaulted Janice Shrader and
Debra Lynn Minnix Livingston while the women were in custody. The district
court concluded that the police officers’ conduct was outside the scope of their
duties and, therefore, their conduct was not covered by the policy. Shrader and
Livingston appealed.
We certified the following question to the Alabama Supreme Court:
DOES AN INSURANCE POLICY PROVISION LIMITING AN
“INSURED” TO AN EMPLOYEE ACTING “WITHIN THE SCOPE
OF DUTIES” WHILE CONDUCTING THE BUSINESS OF THE
EMPLOYER CONFLICT WITH A SEPARATE PROVISION IN THE
SAME INSURANCE POLICY PROVIDING COVERAGE FOR
“VIOLATIONS OF CONSTITUTIONAL/CIVIL RIGHTS” SO AS TO
CREATE AN AMBIGUITY THAT MUST BE CONSTRUED
AGAINST THE INSURER?
Id. at 1311.
The Alabama Supreme Court, after a thorough review of our certified
question, provided the following answer:
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[W]e hold that a policy provision defining an “insured” as an employee
acting “within the scope of duties” while conducting the business of the
employer does not conflict with a separate provision in the same
insurance policy providing coverage for “violations of
constitutional/civil rights” so as to create an ambiguity that must be
construed against the insurer.
Shrader v. Employers Mutual Casualty Co., – So.2d –, 2005 WL 435122, at *8
(Ala. Feb. 25, 2005).
Given the Alabama Supreme Court’s resolution of this issue, the district
court correctly concluded that there was no ambiguity in Employers Mutual
Casualty Company’s insurance policy. Consequently, the district court also
correctly concluded that the actions of Officers Fletcher Mallard and Barnie
Gilliland were not covered by that insurance policy.
Accordingly, we affirm the district court’s grant of summary judgment in
favor of Employers Mutual Casualty Company in this case.
AFFIRMED.
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