Wisconsin Court of Appeals Finds No Coverage for Sexual Assault

Tuesday, September 22, 2020

Within the latest Doe v. Foley choice, the Wisconsin Court docket of Appeals held {that a} volunteer was not lined underneath the Massive Brothers and Massive Sisters of Metropolitan Milwaukee’s (BBBS’) major or umbrella legal responsibility insurance policies for his alleged sexual assault of a minor.

The criticism alleged {that a} Massive Brother with BBBS used his place to usually sexually assault the plaintiff, a Little Brother, over the course of two years. Courts have beforehand held that sexual assault isn’t an accident and, due to this fact, not an incidence for functions of legal responsibility protection. The Court docket didn’t attain that problem, to the extent it was raised. It decided as a substitute that the defendant Massive Brother was not an insured within the first occasion.

Like many customary kind insurance policies, the BBBS insurance policies outlined insured to incorporate “[y]our volunteers however solely whereas performing at your path and throughout the scope of their duties.” The Court docket acknowledged that the duties of Massive Brothers embrace spending one-on-one time with their Little Brothers. Any alleged sexual misconduct, nonetheless, is “so extraordinary and too disconnected from the kind of service ordinarily contemplated” that it couldn’t be stated the volunteer was performing throughout the scope of his duties.

The Court docket’s choice has broader implications. Legal responsibility insurance policies usually embrace a corporation’s govt officers, administrators, members, trustees, companions and staff as insureds, however, like with volunteers, solely when these people are performing throughout the scope of their duties. The place sexual assault is discovered to fall outdoors the scope of employment, insurers have one other arrow of their quiver when denying protection for such claims.

Extra critically, the Court docket‘s choice is per the overall intent behind legal responsibility insurance policies’ extension of protection to a named insured’s volunteers, or its executives and staff. That’s, the place the named insured faces a danger of vicarious legal responsibility, protection usually extends to the person volunteer whose conduct is at problem to the identical extent because the named insured. As a result of that danger isn’t current when a person has stepped other than her duties to obtain a private profit, the named insured’s legal responsibility coverage typically doesn’t present a protection or indemnity for any subsequent claims.