                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00241-CV


PAUL LAIR, JR.                                                      APPELLANT

                                        V.

TIG INDEMNITY COMPANY                                                APPELLEE


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           FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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       Appellant Paul Lair, Jr., appeals the trial court‘s order granting summary

judgment for Appellee TIG Indemnity Company on Lair‘s claims against it. We

will affirm.




       1
        See Tex. R. App. P. 47.4.
                                 Background Facts

      Lair was employed at The Children‘s Courtyard, a children‘s daycare. In

2009, two parents of children who attended the daycare sued Lair and The

Children‘s Courtyard alleging that Lair sexually assaulted and engaged in

unlawful sexual contact with their children in 2001 while Lair was working at the

daycare.2 At the time of the alleged assaults, The Children‘s Courtyard was

insured under a commercial general liability policy with TIG. Lair sued TIG in

2010 seeking a declaration that he, as an ―additional insured‖ under The

Children‘s Courtyard‘s policy, is entitled to a defense and indemnification for the

claims in the underlying suit.

      TIG filed a traditional and no evidence motion for summary judgment,

arguing that there was no evidence that Lair is entitled to coverage under the

policy and that the underlying claims are excluded by the plain language of the

policy. The trial court granted TIG‘s motion. This appeal followed.

                                 Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

      2
         The parents sued Lair for negligence, gross negligence, assault, and
abuse.


                                         2
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

                                    Discussion

      In Lair‘s first issue he argues that the pleadings allege claims covered by

the insurance policy, and in his second issue, he argues that TIG therefore owes

him a duty to defend.

      The duty to defend arises if the factual allegations against the insured,

when fairly and reasonably construed, state a cause of action potentially covered

by the policy. See Cullen/Frost Bank v. Commonwealth Lloyd’s Ins. Co., 852

S.W.2d 252, 255 (Tex. App.—Dallas 1993), writ denied, 889 S.W.2d 266 (Tex.

1994). If a petition against an insured alleges only facts that are not covered by

the policy, the insurer is not required to defend. See id. If the underlying petition

does not state factual allegations sufficient to invoke the duty to defend, then

even proof of all those allegations could not invoke the insurer‘s duty to

indemnify. See Reser v. State Farm Fire & Cas. Co., 981 S.W.2d 260, 263 (Tex.

App.—San Antonio 1998, no pet.); see also Farmers Tex. Cnty. Mut. Ins. Co. v.

Griffin, 955 S.W.2d 81, 84 (Tex.1997).




                                         3
      Lair argues that he is an insured under the policy because the plaintiffs in

the underlying suit alleged that he was acting within the course and scope of his

employment. The commercial general liability policy includes in its definition of

an ―insured‖ ―‗employees‘ . . . , but only for acts within the scope of their

employment by [The Children‘s Courtyard] or while performing duties related to

the conduct of [The Children‘s Courtyard‘s] business.‖

      Assaults on third parties are rarely considered to be within the scope of

one‘s employment unless it ―was so connected with and immediately arising out

of authorized employment tasks as to merge the task and the assaultive conduct

into one indivisible tort imputed to the employer.‖ Buck v. Blum, 130 S.W.3d 285,

289 (Tex. App.—Hous. [14th Dist.] 2004, no pet.). For instance, in Frito-Lay, Inc.

v. Ramos, 770 S.W.2d 887 (Tex. App.—El Paso 1989), rev’d on other grounds,

784 S.W.2d 667 (Tex.1990), the court reasoned that a factfinder could find that

the employee was acting within the scope of his employment when he assaulted

the customer while trying to retrieve company property. There is no evidence in

the record that Lair, in allegedly assaulting the children, was performing any

function related to his duties as an employee of The Children‘s Courtyard. See

Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 453 (Tex. App.—Tyler 1996, no

writ) (―[W]hen the servant turns aside, for however a short time, from the

prosecution of the master‘s work to engage in an affair wholly his own, he ceases

to act for the master, and the responsibility for that which he does in pursuing his

own business or pleasure is upon him alone.‖). Lair was not acting within the


                                         4
scope of his employment by or performing duties related to The Children‘s

Courtyard‘s business when he committed the alleged sexual assault. See id. at

454 (defendant employees were not acting within the scope of their employment

when sexually assaulting plaintiff). He therefore does not fall under the definition

of an ―insured‖ under TIG‘s insurance policy. See Sylvester v. Dallas Fire Ins.

Co., No. 04-97-00754-CV, 1998 WL 130341, at *2 (Tex. App.—San Antonio

Mar. 25, 1998, pet. denied) (mem. op.) (holding as a matter of law that employee

was not an insured for purposes of triggering insurance company‘s duty to

defend when there was ―no factual connection‖ between employee‘s sexual

assault and his job).

      Even if Lair were considered an insured under the policy, two exclusions

would apply to exclude his claims under the policy. First, the Texas Abuse and

Molestation Exclusion of the policy states that ―[t]his insurance does not apply to

‗bodily injury,‘ ‗property damage,‘ ‗advertising injury[,]‘ or ‗personal injury‘ arising

out of . . . [t]he actual or threatened abuse or molestation by anyone of any

person while in the care, custody or control of any insured . . . .‖ The Exclusion

defines abuse as ―an act which is committed with the intent to cause harm.‖

      ―[A]n insured intends to injure or harm another if he intends the

consequences of his act, or believes they are substantially certain to follow.‖

State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 378 (Tex. 1993).

Ordinarily, intent to injure is a question of fact. Id. However, certain conduct is

so extreme or outrageous that intent to injure may be inferred as a matter of law.


                                           5
See S.S. & G.W. v. State Farm Fire & Cas. Co., 808 S.W.2d 668, 670–71 (Tex.

App.—Austin 1991), aff’d, 858 S.W.2d 374 (Tex. 1993). Sexual assault of a child

has been considered to be of the type of extreme or outrageous conduct for

which intent to harm may be inferred. See Allen v. Auto. Ins. Co. of Hartford

Conn., 892 S.W.2d 198, 201 (Tex. App.—Hous. [14th Dist.] 1994, no writ);

Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193, 196 (Tex. App.—Dallas 1992,

no writ). We can infer that Lair intended to cause harm by his alleged sexual

assault on the children, and thus the Texas Abuse and Molestation Exclusion

would apply to exclude Lair‘s alleged acts. See Maayeh, 850 S.W.2d at 197

(holding that insurer had no duty to defend because the policy excluded bodily

injury ―caused intentionally by or at the direction of the insured‖ and insured‘s

intent to injure in a sexual assault on a child could be inferred as a matter of law).

      Second, the Sexual Molestation Form of the policy covers ―those sums that

the insured becomes legally obligated to pay as damages because of ‗bodily

injury‘ caused by a ‗sexual abuse occurrence.‘‖ However, the Form excludes

      1. An additional insured, or any person or entity indemnified under
      any insured contract, if the employee(s), agent(s), representative(s)
      or volunteer worker(s) of such additional insured or indemnified
      person or entity actually or allegedly committed, or participated in
      any respect, in a ―sexual abuse occurrence.‖

             ....




                                          6
      4. Any person who participated in, directed[,] or knowingly allowed
      any ―sexual abuse occurrence.‖3

The Form defines those who are insured as including ―employees . . . , but only

for acts within the scope of their employment by [The Children‘s Courtyard] or

while performing duties related to the conduct of [The Children‘s Courtyard].‖ As

we held above, Lair was not acting within the scope of his employment when he

allegedly assaulted the children. Thus, Lair‘s alleged acts would be excluded

from the Sexual Molestation Form.

      Because Lair‘s alleged acts are not covered by the insurance policy, TIG

does not owe Lair a duty to defend. We overrule Lair‘s first and second issues.

                                    Conclusion

      Having overruled Lair‘s two issues on appeal, we affirm the trial court‘s

judgment.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: December 22, 2011




      3
       The Form defines ―sexual abuse occurrence‖ as ―[a] single act, or
multiple, continuous, sporadic, or related acts of sexual abuse or molestation
caused by one perpetrator, or by two or more perpetrators acting together.‖


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