                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0334n.06

                                        Case No. 18-4037

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jul 03, 2019
CUYAHOGA HEIGHTS LOCAL SCHOOL                          )                 DEBORAH S. HUNT, Clerk
DISTRICT,                                              )
                                                       )
       Plaintiff-Appellant,
                                                       )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR
v.
                                                       )    THE NORTHERN DISTRICT OF
                                                       )    OHIO
NETHERLANDS INSURANCE COMPANY
                                                       )
and   MIDWESTERN     INDEMNITY
                                                       )
COMPANY,
                                                       )
       Defendants-Appellees.                           )



BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.

       SILER, Circuit Judge. Cuyahoga Heights Local School District (“the District”) sued its

insurers, Netherlands Insurance Company and Midwestern Indemnity Company (“Insurers”),

seeking satisfaction of a state-court judgment it obtained against its employee Peter Guerrera. The

district court granted summary judgment to the Insurers because Guerrera was not an insured under

policies written by the Insurers. We AFFIRM.

                                                I.

       The District was victim of a criminal fraud and theft scheme orchestrated by Joseph

Palazzo, the District’s former Director of Information Technology. Palazzo was convicted of
Case No. 18-4037, Cuyahoga Heights Local Sch. Dist. v. Netherlands Ins. Co., et al.


conspiracy to commit mail fraud, money laundering conspiracy, and wire fraud. United States v.

Palazzo, No. 1:13-CR-167 (N.D. Ohio June 14, 2013).

       In 2013, the District filed suit in the Court of Common Pleas for Cuyahoga County, Ohio

seeking to recover some of the money it lost as a result of the fraud. The complaint included claims

against its former Superintendent, Peter Guerrera.

       Guerrera reported the complaint to the Insurers seeking defense and indemnification based

on two insurance policies. One policy was between the District and Netherlands Insurance

Company and provided “School Leaders Errors & Omission Liability Coverage” up to one million

dollars for each wrongful act and one million dollars in the aggregate. The other policy was an

umbrella policy between the District and Midwestern Indemnity Company. The Insurers denied

coverage because the policies did not cover claims made by the District against its employees

working within the scope of their duties. After Guerrera agreed to an interview with the District’s

attorneys, the District dismissed its claims against Guerrera without prejudice.

       Later in 2013, the District again filed suit against Guerrera in the Court of Common Pleas.

The District alleged that, because of Guerrera’s negligence, negligent hiring, negligent

supervision, and negligent failure to implement appropriate controls (and other wrongful acts), the

District sustained losses of over four million dollars. Guerrera admitted all allegations except that

regarding punitive damages and declined to assert any affirmative defenses. The District and

Guerrera submitted a proposed judgment and accompanying evidentiary materials to the state

court. The Insurers declined to participate in the proceedings because they believed the insurance

policies did not insure Guerrera against suit by the District. The court entered judgment in favor

of the District in the amount of $4,199,812 and approved a covenant between the parties in which




                                                -2-
Case No. 18-4037, Cuyahoga Heights Local Sch. Dist. v. Netherlands Ins. Co., et al.


the District agreed not to execute the judgment against Guerrera. The court also noted the covenant

was not the result of any collusion or fraud by either party.

       This action against the Insurers was filed in 2016. The District seeks payment under the

insurance policies for the judgment it obtained against Guerrera.1 Because Guerrera is not an

“insured” under the policies, the district court is AFFIRMED.

                                                   II.

       The district court’s decision to grant summary judgment is reviewed de novo. Simpson v.

Ernst & Young, 100 F.3d 436, 440 (6th Cir. 1996).

                                                   III.

       The policy between the District and Netherlands Insurance Company, in relevant part,

provides:

       SECTION II - WHO IS AN INSURED

            Each of the following is an insured:

            A. The “educational institution”, and its board of governors, board of
               education, school committee, board of trustees, or commission.

            B. Each of the following is also an insured for acts within the scope of their
               duties as such:
       ***
               1. Your “employees”. However . . . no “employee” is an insured for
                  “claims” made:

                       a. By you or by a co-“employee” for “loss’” arising out of and in the
                       course of his or her employment or performing duties related to the
                       conduct of your business;




       1
        Indiana Insurance Company was originally listed as a defendant. Midwestern Indemnity
was substituted as a party after removal.
                                                -3-
Case No. 18-4037, Cuyahoga Heights Local Sch. Dist. v. Netherlands Ins. Co., et al.


       The policy between Midwestern Indemnity Company and the District follows form to the

Netherlands Policy.

       According to the policies, an employee is generally an “insured.” But an exception is set

out for claims made by the District against its employees for loss arising in the course of

employment or during the performance of duties related to the District’s business. Thus, an

employee is not an “insured” for purposes of such a claim.

       Those circumstances exist here. The District seeks satisfaction of a judgment resulting

from a lawsuit the District filed against Guerrera, its employee. As a basis for that suit and

corresponding judgment, the District alleged that because of “the wrongful acts of Guerrera in the

performance of . . . School District duties . . . the School District has sustained a loss of over

$4,000,000[.]” The complaint listed several wrongful acts connected with Guerrera’s duties as

Superintendent, including “negligent hiring, negligent supervision, [and] negligent failure to

implement appropriate controls[.]” By the District’s own characterization then, the loss arose in

the course of Guerrera’s employment.

       The District now seeks to satisfy the judgment as a claim under the policies. But the

policies clearly and unambiguously explain that Guerrera is not an “insured” in such

circumstances.

       AFFIRMED.




                                              -4-
