United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
the Court are the parties' cross-Motions for Summary
Judgment. (ECF Nos. 73, 75, 80.) For the reasons that follow,
Plaintiff's Motion for Summary Judgment is
DENIED. (ECF No. 80.) Defendants'
Motions for Summary Judgment are GRANTED.
(ECF Nos. 73, 75.) The Court enters declaratory and
injunctive relief in the manner set forth below.
declaratory judgment action stems from two underlying
complaints filed in Kanawha County Circuit Court by A.B., by
and through his Guardian ad Litem, William Jesse Forbes, and
K.R.L, by and through his parent and next friend, Jocelyn
Gail Arbeiter, against Defendants, Bible Baptist Church
(“Bible Baptist”), Blue Creek Academy
(“BCA”), James Waldeck, and J.R.
The Underlying Civil Complaints
Brotherhood Mutual Insurance Company (“Brotherhood
Mutual”) provides insurance to Defendant Bible Baptist.
Bible Baptist owns the boarding school BCA, which is managed
by James Waldeck and run by J.R. Thompson. Plaintiffs, A.B.
and K.R.L., were students at BCA for approximately two years
and seventeen months respectively. (ECF No. 74 at 3-4.) Both
A.B. and K.R.L. allege in separate pending, underlying
actions filed in Kanawha County Circuit Court that they were
subject to sexual and physical abuse as well as
malnourishment and educational neglect. (See ECF
Nos. 75-3, 75-4.) Specifically, A.B. alleges that the
22. During his two year tenure at BCA, Plaintiff A.B.
suffered significant physical and emotional abuse.
23. BCA subjected A.B. to malnourishment, isolationism,
corporal punishment, starvation, and physical abuse.
24. Plaintiff A.B. was sexually abused by another resident of
the facility due to the lack of supervision and other
improper standards utilized by the facility.
30. Aside from the starvation, physical abuse, extreme
punishments, and various other maltreatments, BCA also
committed educational neglect.
(ECF No. 75-3 at ¶¶ 22-24, 30.) K.R.L. specifically
alleges the following:
21. During his seventeen (17) month tenure at BCA, Plaintiff
K.R.L. suffered significant physical, sexual, and emotional
22. BCA exposed and subjected Plaintiff to malnourishment,
isolationism, corporal punishment, starvation, and physical
25. Plaintiff K.R.L. was sexually abused by another staff
member's son of the facility due to lack of supervision
and other improper standards utilized by the facility.
(ECF No. 75-4 at ¶¶ 21-22, 25.) Both complaints
further allege that BCA was negligent in its hiring and
supervision of the staff. In response to the above complaints
filed against them, Bible Baptist requests insurance coverage
under their Brotherhood Mutual policy.
Brotherhood Mutual Insurance Policy
Brotherhood Mutual policy at issue in this case was in effect
from June 13, 2011, to June 13, 2014, and provided coverage
for A.B. and K.R.L.'s claims. Specifically, the policy
provides a coverage limit of $1, 000, 000 per occurrence for
Bodily Injury/Property Damage Liability, “Nursery
Supervision, ” and “Nursery Corporal Punishment,
with an Aggregate Coverage Limit of $3, 000, 000.
(See ECF No. 32-3 at 6.) Additionally, there is a
separate coverage limit of $100, 000 for “Sexual Acts
Liability Coverage” with an Aggregate Coverage Limit of
$100, 000. (See Id. at 7.)
policy defines an occurrence as “an accident and
includes repeated exposure to similar conditions.”
(See Id. at 77.) It further states the following:
If an occurrence to which any liability coverage of this
policy applies consists of acts, errors, omissions,
decisions, incidents, events, breaches of duty, damage or
loss occurring on more than one date during any policy period
or policy periods, such events or damage, together with any
related loss, will constitute a single occurrence. . . .
(Id. at 100.) Regarding sexual acts, specifically,
the policy states the following:
Any of the above acts or conduct will be considered a single
sexual act if undertaken by the same perpetrator or
perpetrators, even if such acts are directed against more
than one person, happen over time, or take place during more
than one policy period.
(Id. at 80.)
the above definitions, Brotherhood Mutual filed an Amended
Complaint on June 9, 2017, seeking a declaration, pursuant to
28 U.S.C. § 2201 and Rule 57 of the Federal Rules of
Civil Procedure, that A.B. and K.R.L.'s claims constitute
one occurrence under the insurance policy. (See ECF
No. 70.) Subsequently, Defendants Bible Baptist and A.B. by
William Jessie Forbes, together with K.R.L. by Jocelyn Gail
Arbeiter, filed motions for summary judgment arguing that
A.B. and K.R.L.'s claims count as at least two
occurrences under the insurance policy as there were multiple
causes for the claims. (See ECF Nos. 74, 76.)
Brotherhood Mutual filed a cross-motion for summary judgment
arguing that A.B. and K.R.L.'s claims count as a singular
occurrence under the insurance policy as they stem from the
single cause of negligent supervision by BCA. (See
ECF No. 80.) All three motions have been fully briefed and
are now ripe for consideration.
judgment is warranted when “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists if, in viewing the
record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable
fact-finder could return a verdict for the non-movant.
See Fed. R. Civ. P. 56(e). “Facts are
‘material' when they might affect the outcome of
the case, and a ‘genuine issue' exists when the
evidence would allow a reasonable jury to return a verdict
for the nonmoving party.” News & Observer Publ.
Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576
(4th Cir. 2010).
moving party bears the initial burden of showing that there
is no genuine issue of material fact and that he is entitled
to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23. “The burden then
shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.”
Temkin v. Frederick Cty. Comm'rs, 945 F.2d 716,
718 (4th Cir. 1991). When determining whether there is an
issue for trial, the Court must view all evidence in the
light most favorable to the non-moving party. Perini
Corp. v. Perini Constr., Inc., 915 F.2d 121, 123 (4th
Cir. 1990). The non-moving party must offer some
“concrete evidence from which a reasonable juror could
return a verdict in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). “[A] party
opposing a properly supported motion for summary judgment may
not rest upon mere allegation or denials of his pleading, but
must set forth specific facts showing that there is a genuine
issue for trial.” Id. “The mere
existence of a scintilla of evidence” in support of the
nonmoving party is not enough to withstand summary judgment;
the judge must ask whether “the jury could reasonably
find for the plaintiff.” Id. at 252.
for summary judgment are reviewed separately if material
facts are in dispute. Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003). Here, the facts underlying
Brotherhood Mutual's claim are undisputed-the parties
merely dispute the legal significance of those facts.
Furthermore, under West Virginia law, “determination of
the proper coverage of an insurance contract when the facts
are not in dispute is a question of law.” Norfolk
S. Ry. Co. v. Nat'l Union Fire Ins. of Pittsburg,
Pa., 999 F.Supp.2d 906, 910 (S.D. W.Va. 2014).
Therefore, as stated above, the only issue in dispute is
whether A.B. and K.R.L.'s claims constitute multiple
occurrences under the Brotherhood Mutual insurance policy.
Accordingly, summary judgment is proper after determining the
number of occurrences under the insurance policy.