Young v. Great American Insurance Co. of New York

*92HUNTER, Judge,

dissenting.

Because I do not believe Christopher Young (“plaintiff’) committed these sexual assaults “while performing law enforcement duties,” I respectfully dissent.

At the outset, I disagree with the majority’s proposition that this case is indistinguishable from City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998). It is the language of the policy in this case that limits the definition of a “wrongful act” to those acts occurring “while performing law enforcement duties” that distinguishes this case from Haywood. This language was not at issue in Haywood, since the policy in that case only used the language “ ‘arising out of the INSURED’S law enforcement duties.’ ” Id. at 274, 502 S.E.2d at 432. In construing an insurance contract, a court should not rewrite the contract, nor disregard the express language of that contract. N. C. Insurance Guaranty Assn. v. Century Indemnity Co., 115 N.C. App. 175, 179, 444 S.E.2d 464, 467 (1994). “ ‘All parts of a contract are to be given effect if possible. It is presumed that each part of the contract means something.’ ” Id. at 180, 444 S.E.2d at 468 (quoting Bolton Corp. v. T.A. Loving Co., 317 N.C. 623, 628, 347 S.E.2d 369, 372 (1986)). The term “while” is defined as “during the time that.” Webster’s New Collegiate Dictionary, 1343 (9th ed. 1991). The term “perform” is defined as “carry out, do.” Id. at 873. The combination of the terms “arising out of the performance of the Insured’s duties to provide law enforcement activities” and “while performing law enforcement duties” does not create an ambiguity. Rather the terms should be construed together and the insurance policy should be read to cover acts occurring during the time the officer was carrying out his law enforcement duties and that would not have occurred but for the fact that he was a police officer. The phrase “while performing law enforcement duties” requires a contemporaneity between the acts for which coverage is sought and the performance of law enforcement duties. The intent of the policy is clear and unambiguous: it is designed to cover those wrongful acts of police officers committed as the officer is carrying out duties related to law enforcement. A sexual assault is not a law enforcement duty.

In this case, plaintiff was not performing law enforcement duties at the same time as he was sexually assaulting the victims. In each instance, plaintiff actually stopped performing law enforcement duties in order to sexually assault the three women. In one instance, plaintiff allegedly ceased an otherwise normal traffic stop and forced *93the victim behind a building before assaulting her. In a second instance, plaintiff, in the middle of a routine traffic stop, allegedly-pushed the victim to the ground, assaulted her, and subsequently forced her back into her car where he raped her. In the third incident, plaintiff allegedly drove the victim to an abandoned building where he sexually assaulted her.

Although it is true that none Of these assaults would have happened but for the fact plaintiff was a police officer, and thus had authority to stop or detain the victims, plaintiffs actions in forcing the women to commit sexual acts were not part of his law enforcement duties. Even though each case of assault began with a traffic stop or accident investigation, plaintiff at some point in each case stopped carrying out his duties in order to commit the assaults by performing acts so completely remote from law enforcement to constitute a cessation of his job duties, either by taking the women to a place unrelated to his law enforcement duties and by repeatedly physically and sexually assaulting a victim. Therefore, none of the assaults were committed as plaintiff actually carried out any duty of law enforcement.1 These assaults were not committed while plaintiff was carrying out the public duties of a law enforcement officer, but rather they were committed while he was serving his own personal and reprehensible purposes for which he may be charged criminally and sued in his individual capacity. Thus, I would conclude that there is no coverage for plaintiffs assaults under the law enforcement liability policy.

Furthermore, although the majority opinion does not reach this issue, I would also conclude that the intentional sexual assaults were not within the scope of plaintiffs employment, and thus, the general liability policy also does not provide coverage for plaintiffs assaults on the three women. See Medlin v. Bass, 327 N.C. 587, 594, 398 S.E.2d 460, 464 (1990) (where assault by an employee cannot have been in furtherance of employer’s business, the assault is not within course and scope of employment). Accordingly, I would affirm the judgment of the trial court.

. Examples of acts that would be covered under the insurance policy would include using excessive force during an arrest or assaulting a suspect during an interrogation.