Clear & Unambiguous Exclusions Must Be Enforced
Post 4843
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The Plaintiff insurance company seeks a declaration that it has no duty to defend or indemnify Jacob Jackson or his wife, Stacy Jackson, for claims asserted against them in civil lawsuits which allege that Mr. Jackson sexually abused and exploited minors.
In American Strategic Insurance Corp, a foreign insurer v. Jacob Jackson, individually, Inspirit Athletics, Inc, et al., No. 3:23-cv-05461-RJB, United States District Court, W.D. Washington, Tacoma (July 24, 2024) the insurer proved that criminal charges against Mr. Jackson, including for rape of a child in the third degree, child molestation in the third degree, and communication with a minor for immoral purposes are now pending in Pierce County, Washington Superior Court (“criminal case”). Trial on the criminal charges is set to begin on November 19, 2024.
The Insurer moved for partial summary judgment on its claims against Mr. and Mrs. Jackson only as they relate to Jane Doe 20, as Guardian ad Litem for John Doe 20, et. al. v. Inspirit Athletics, Inc., et.al., Pierce County, Washington Superior Court case number 23-208692-4 (“John Doe 20 lawsuit”).
FACTS
The Plaintiff issued a homeowners insurance policy (“primary policy”) to Mr. and Mrs. Jackson. This primary policy was in effect between September 16, 2019 – September 16, 2022. In addition to the primary policy, the Plaintiff also issued an umbrella liability policy to the Jacksons. The Plaintiff accepted defense of the civil lawsuit at issue for the Jacksons pursuant to a reservation of rights. It then sued seeking a declaration that it owes no duty to defend or indemnify the Jacksons for any of the claims asserted against them in the John Doe 20 lawsuit.
ALLEGATIONS IN THE UNDERLYING LAWSUIT
According to the complaint filed in the John Doe 20 lawsuit, Mr. Jackson was the head boys’ basketball coach for Sumner High School, located in Sumner, Washington, from 2016 to September of 2022. Mr. Jackson is also alleged to be the CEO of Inspirit Athletics, Inc. d/b/a/ Sterling Athletics (“Sterling”) a sports equipment manufacturing and marketing company.
The John Doe 20 lawsuit contended that Mr. Jackson met John Doe 20 when he was around 10 years old and over the next several years showered John Doe 20 with attention and gifts of athletic equipment, Sterling clothing and gear. Mr. Jackson socialized with the family. While John Doe 20 was in the Jackson’s closet, Mr. Jackson stripped naked, cornered John Doe 20 in the closet, and began masturbating in front of John Doe 20. Mr. Jackson then allegedly forced himself on John Doe 20, grabbing his genitalia and masturbating John Doe 20. The John Doe 20 lawsuit makes claims for sexual exploitation of children and false imprisonment against Mr. Jackson.
INSURANCE POLICIES
As stated above, there are two insurance policies which are the subject of this case: the primary policy and umbrella policy. Both policies exclude “‘bodily injury’ . . . arising out of sexual molestation, …” as well as “‘bodily injury’ . . . resulting from any illegal or criminal act performed by, at the direction of, or in conspiracy with any ‘insured.’ This exclusion applies regardless of whether the insured is charged with a crime.”
Relevant Umbrella Policy Provisions
The umbrella policy also contains several exclusions that the Plaintiffs maintain are relevant. For example, it excludes “‘bodily injury’ . . . and ‘personal injury’ unless such liability is also covered under the applicable underlying insurance.” The umbrella policy excludes “‘bodily injury’ which is expected or intended by an ‘insured’” and “‘bodily injury’ and ‘personal injury’ arising out of: sexual molestation, corporal punishment or mental abuse”
DISCUSSION
In Washington, an insurance policy is construed as a contract and given fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.
The Plaintiff’s motion for summary judgment regarding the duty to defend should be granted. The Plaintiff has no duty to defend the Jacksons in the John Doe 20 lawsuit. Neither the primary policy nor the umbrella policy (which only provides coverage if the primary policy does) could conceivably cover the allegations in the complaint.
DUTY TO INDEMNIFY
If there is no duty to defend, then there is no duty to indemnify. Therefore the Plaintiff’s partial motion for summary judgment should be granted. Plaintiff American Strategic Insurance Corp’s Motion for Summary Judgment Is Granted.
ZALMA OPINION
Liability insurance is designed to protect an insured only against fortuitous acts. Sexually molesting a child can never be fortuitous. It is an intentional act that is both immoral and illegal and excluded by clear and unambiguous language in the homeowners and umbrella policy. The couple should be forced to pay whatever assets they have to the families of the abused children as well as serve time in prison. Insurance is not designed to make it easy to commit crimes at all, and especially crimes against minor children.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q
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When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
