United States District Court, W.D. Virginia, Big Stone Gap Division
Theodore I. Brenner and Alexander S. de Witt, Freeborn &
Peters LLP, Richmond, Virginia, for Plaintiff.
L. Scyphers, Scyphers & Austin, P.C., Abingdon, Virginia,
for Defendant Judy Walton Barney.
OPINION AND ORDER
P. Jones United States District Judge.
declaratory judgment action, the plaintiff insurance company
seeks a ruling that it has no obligation under the terms of
its liability insurance policy to defend or indemnify an
insured school teacher accused of the sexual abuse of a child
she taught. Based on the factual allegations of the claim,
and the language of the policy, I agree, and will grant the
insurance company's Motion for Summary Judgment.
2013, Joshua Howard Goins, then 38 years old, filed suit for
damages in state court against his Fourth Grade teacher, Judy
Walton Barney, claiming that she had sexually abused him on
two occasions, once in 1984 and again in 1985. According to
the allegations of Goins' lawsuit (the “Underlying
Action”), including his deposition taken in the course
of that case, the first occasion had been in the fall of
1984, when he was nine years old. Goins testified that he had
stayed at school after class ended to practice for a 4-H Club
event in which he and other club members were to perform.
After the practice, while he was waiting for his parents to
pick him up, he “ended up” alone with his
teacher, Judy Barney, in a classroom, “sitting in her
lap.” Mem. Supp. Mot. Summ. J. Ex. 4, Goins Dep. 181,
ECF No. 17-4. Barney then proceeded to remove Goins'
trousers and underpants and “manually stimulate [his]
genitals.” Compl. Ex. 3, Am. Bill of Compl. Circuit
Court for Lee Cty., Va., Case No. CL13050112-00, at ¶ 6,
ECF No. 1-5.
second occasion was in an afternoon of the next summer, after
school had ended for the year and Goins had finished the
Fourth Grade. It is alleged that Goins met Barney near the
town library and sat in her vehicle while she performed oral
sex on him. Id. at ¶ 7.
plaintiff in the present case, Horace Mann Insurance Company
(the “Insurance Company”) issued an Educators
Employment Liability Policy (the “Policy”) to the
Virginia Education Association covering all of its members
for the years in question. The Insurance Company does not
dispute that Barney is an insured under the Policy; rather it
contends that the claims made by Goins are not covered either
by the scope of the Policy's coverage or by one of its
Insurance Company primarily relies on the coverage language
of the Policy, which provides that “[t]he Company
agrees to pay all damages which the Insured shall become
legally obligated to pay as a result of any claim arising out
of an occurrence in the course of the Insured's
educational employment activities.” Compl. Ex. 1,
Policy § III.A., ECF No. 1-3 (italics omitted). The term
“educational employment activities” is defined in
the Policy as “the activities of the Insured performed
. . . [p]ursuant to the express or implied terms of his/her
employment by an educational unit.” Id. at
§ II.D.1 (italics omitted). In addition, the Insurance
Company relies on a provision of the Policy that excludes
“occurrences involving damages which are the intended
consequences of action taken by or at the direction of the
Insured, unless the action involves corporal
punishment.” Id. at § VII.I (italics
Insurance Company's Motion for Summary Judgment has been
fully briefed and is ripe for decision.
court is required to grant a motion for summary judgment
“if the movant shows that 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). In
ruling on motions for summary judgment, the court must,
“view the facts and all justifiable inferences arising
therefrom in the light most favorable to the nonmoving
party.” Kolbe v. Hogan, 849 F.3d 114, 130 (4th
Cir. 2017). The party seeking summary judgment bears
“the burden of showing the absence of a genuine issue
as to any material fact.” Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970). However, the party
opposing summary judgment must nevertheless “properly
address [the movant]'s assertion of fact” in order
to proceed to trial. Fed.R.Civ.P. 56(e).
this is a diversity case,  Virginia substantive law, including
Virginia choice-of-law rules, applies. Res. Bankshares
Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635
(4th Cir. 2005) (“A federal court hearing a diversity
claim must apply the choice-of-law rules of the state in
which it sits.”). In Virginia, “the law of the
place where an insurance contract is written and delivered
controls issues as to its coverage.” Buchanan v.
Doe, 431 S.E.2d 289, 291 (Va. 1993). It is undisputed
that the insurance policy was issued in Virginia. The parties
accordingly agree that Virginia substantive law controls this
law is settled that insurance policies are to be constructed
in line with the intent of the parties involved, as exhibited
by the terms the parties have used, provided the policy does
not transgress statutory requirements and is not antithetical
to public policy interests. Nat'l Hous. Bldg. Corp.
v. Acordia of Va. Ins. Agency,591 S.E.2d 88, 90-91 (Va.
2004). If the terms used in the policy are unambiguous, they
are to be taken in their ordinary meaning. Craig v.
Dye,526 S.E.2d 9, 11 (Va. 2000). Policy language may be
ambiguous where it can reasonably have more than one meaning
given its context. Salzi v. Va. Farm Bureau Mut. Ins.
Co.,556 S.E.2d 758, 760 (Va. 2002). Such ambiguities
are to be resolved against the insurer and in favor of
coverage. Gov't Emps. Ins. Co. v. Moore, 580
S.E.2d 823, 828 (Va. 2003). Similarly, reasonable exclusions
to coverage, when stated in the policy in clear and
unambiguous language that is clearly applicable to a specific
situation at hand, will be enforced. Transcon. ...