
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2068                       WINNACUNNET COOPERATIVE SCHOOL DISTRICT,                                Plaintiff, Appellant,                                          v.                   NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA,                                 Defendant, Appellee.                                 ____________________        No. 95-2069                           SCHOOL ADMINISTRATIVE UNIT #21,                                Plaintiff, Appellant,                                          v.                   NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Selya, Stahl, and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Robert  A. Casassa  with whom  Casassa and Ryan  was on  brief for            __________________             ________________        appellants.            Gordon A. Rehnborg with whom  Doreen F. Connor and Wiggin & Nourie            __________________            ________________     _______________        PA were on brief for appellee.        __                                 ____________________                                     May 23, 1996                                 ____________________                      STAHL, Circuit Judge.  Plaintiff-appellants                      STAHL, Circuit Judge.                             _____________            Winnacunnet Cooperative School  District ("Winnacunnet")  and            School Administrative Unit #21  ("SAU #21") appeal the denial            of their summary  judgment motions and  the grant of  summary            judgment in  favor of defendant-appellee, National Union Fire            Insurance  Company ("National  Union").   In its  ruling, the            district  court  held  that   insurance  policies  issued  by            National Union  did not  cover certain legal  claims asserted            against them, and that there was no genuine issue of material            fact  as to the applicability  of two policy  exclusions.  We            affirm.                                          I.                                          I.                                          __                       Factual Background and Prior Proceedings                       Factual Background and Prior Proceedings                       ________________________________________                      To explicate  the  insurance coverage  dispute,  we            first recount  the events  underlying the claims  against the            insured parties, Winnacunnet and SAU #21.                      In  1991, former  Winnacunnet High  School students            Vance  Lattime,  Jr.,  Patrick  Randall,  and  William  Flynn            pleaded guilty to the murder of Gregory Smart, the husband of            the school media director, Pamela Smart ("Smart").  See State                                                                ___ _____            v.  Smart, 622 A.2d 1197,  1202 (N.H.), cert.  denied, 114 S.                _____                               _____  ______            Ct. 309 (1993).   The students  eventually testified for  the            state  at  the trial  of Smart,  who  was convicted  of first            degree  murder, conspiracy  to  murder and  tampering with  a            witness.  Id. at 1200, 1202.  For their roles  in the murder,                      ___                                         -2-                                          2            Randall  and  Flynn are  currently  serving  prison terms  of            forty-years-to-life, and Lattime is  serving thirty-years-to-            life (each  with twelve years  deferred).  Cecelia  Pierce, a            former student  intern of  Smart's  who had  known about  the            murder plan  before it  was carried out,  eventually assisted            the authorities  in securing  information leading  to Smart's            arrest.   Id. at  1201-02.  Pierce  was not charged  with, or                      ___            convicted of, any crime related to the murder.1                      In 1993, Lattime, Randall, Flynn and their parents,            Naomi and Vance Lattime, Sr., Patricia and Frank Randall, and            Elaine  Flynn, filed a  lawsuit in New  Hampshire state court            alleging  that   Winnacunnet  was  negligent  in  hiring  and            supervising   Smart.     They   claimed   that  Winnacunnet's            negligence  resulted  in  "inappropriate   relationships  and            dangerous effects"  and caused  Smart to commit  various acts            that, in turn, led to:                      injuries  including  but  not limited  to                      emotional  distress,  mental instability,                                            ____________________            1.  The  facts at  trial,  see Smart,  622  A.2d at  1200-02,                                       ___ _____            established that Smart  became involved sexually with  Flynn.            During the affair, Smart  told Flynn that they would  have to            kill her husband if their relationship was to continue.  They            planned  the murder in detail,  and Smart frequently spoke to            Pierce of the plans.  Flynn enlisted the help  of Randall and            Lattime after  his first  attempt at murdering  Gregory Smart            failed.  On the day of the murder, Flynn, Randall and Lattime            (with  another boy)  drove to  Smart's empty  residence, and,            while Lattime waited in the  car, Flynn and Randall ransacked            the  home to  create  the appearance  of  a burglary.    When            Gregory Smart returned home, Flynn and Randall forced  him to            his  knees, and  while Randall  held his  head down  at knife            point, Flynn shot him once in the head.                                         -3-                                          3                      physical  incarceration,  impairment   of                      judgment, thereby causing them  to suffer                      criminal responsibilities, incarceration,                      irreparable harm through loss of liberty,                      lost earnings, earning capacity,  loss of                      education  by and  through [Winnacunnet],                      financial  loss,  separation of  Students                      from  their parents  and family,  loss of                      consortium  by  the   parents,  loss   of                      consortium  by the Students, etc.; all to                      the damage of the plaintiffs.                      In a  separate state  action, Pierce sued  SAU #21,            the entity  that oversees the operations  of Winnacunnet High            School,2 alleging  that it was negligent  in hiring, training            and  supervising  Smart.   Pierce  claimed  that the  alleged            negligence  caused  her "loss  of  education,  loss of  past,            present and future earnings,  loss of reputation and standing            in the  community, and  mental  anguish."3   Neither writ  of            summons4   in  the  underlying   state  actions  specifically            mentioned the murder of Gregory Smart.                                            ____________________            2.  Interestingly, Pierce  named only SAU #21  as a defendant            while  the  other  students  and  their  parents  named  only            Winnacunnet.   Both  actions  allege,  inter alia,  negligent                                                   _____ ____            hiring/employment  although it  appears from the  record that            SAU  #21 is  the entity that  hired Smart.   In  any case, no            party has raised  any issue in this regard to us, and because            the policies  issued  to  SAU  #21  list  Winnacunnet  as  an            additional insured, we treat the present coverage question as            unaffected  by   the  difference  in   the  underlying  named            defendants.            3.  At oral argument, the parties informed us that Pierce has            received $9,000 in settlement of her claim.            4.  In New  Hampshire,  a  writ  of summons  is  the  initial            pleading in a civil  action at law.  For  simplicity, we will            refer to this pleading as a "writ."                                         -4-                                          4                      Winnacunnet   and   SAU  #21   (collectively,  "the            School")  turned to  National Union  to defend  and indemnify            them in  the state actions under  consecutive "School Leaders            Errors and Omissions" insurance policies, issued for one-year            periods  beginning November  17, 1990  and 1991.   Under  the            policies, National  Union was obligated to  defend any action            and  pay damages resulting from  "any Wrongful Act (as herein            defined)  of the  Insured or  of any  other person  for whose            actions the  Insured is  legally responsible."   The policies            defined "Wrongful Act"  as "any actual  or alleged breach  of            duty,  neglect, error, misstatement,  misleading statement or            omission committed solely in the performance of duties."                      National  Union  declined   coverage,  citing   the            following policy exclusions:                      This policy does not apply:                      (a)  to  any claim involving  allegations                      of fraud, dishonesty  or criminal acts or                      omissions; however, the Insured  shall be                      reimbursed  for  all amounts  which would                      have been collectible  under this  policy                      if such allegations are  not subsequently                      proven;                      (b)  to any  claims  arising  out of  (1)                      false arrest,  detention or imprisonment;                      (2)  libel,  slander  or   defamation  of                      character;  (3)  assault or  battery; (4)                      wrongful entry or  eviction, or  invasion                      of any right of privacy;                      (c) to  any claim  arising out  of bodily                      injury to, or  sickness, disease or death                      of   any   person,   or   damage   to  or                      destruction  of  any property,  including                      the loss of use thereof.                                         -5-                                          5                      Upon  National  Union's  denial  of  coverage,  the            School  petitioned  the  New  Hampshire  Superior  Court  for            Rockingham  County   for  a  declaratory   judgment  ordering            National  Union  to  defend   and  provide  coverage  in  the            students'   and   parents'   (the  "underlying   plaintiffs")            lawsuits.    National  Union  removed the  action,  based  on            diversity jurisdiction,  to the United States  District Court            for  the District  of New  Hampshire.   On cross  motions for            summary judgment,  the  district court  denied  the  School's            motions and granted National Union's motions, reasoning  that            policy  exclusions (b)  and (c)  barred coverage  because the            underlying claims  arose out of the  assault, battery, bodily            injury and death of Gregory Smart.  The court did not discuss            the applicability of exclusion (a).  The School appeals.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Summary Judgment Standard of Review            _______________________________________                      We  review a  grant  of summary  judgment de  novo,                                                                __  ____            viewing the facts  in the  light most favorable  to the  non-            moving party  and drawing  all reasonable inferences  in that            party's favor.   Barbour v. Dynamics Research  Corp., 63 F.3d                             _______    ________________________            32, 36 (1st Cir. 1995), cert.  denied, 116 S. Ct. 914 (1996).                                    _____  ______            Summary   judgment   is   warranted   when   "the  pleadings,            depositions,  answers to  interrogatories, and  admissions on            file,  together with the affidavits,  if any, show that there                                         -6-                                          6            is no  genuine issue as  to any  material fact  and that  the            moving party is  entitled to  judgment as a  matter of  law."            Fed. R. Civ. P. 56(c).                      In this case, the summary judgment victor, National            Union, bore the burden of proving lack of coverage.  See N.H.                                                                 ___            Rev. Stat.  Ann.   491:22-a (providing that,  in petitions to            determine liability  insurance coverage, the burden  of proof            is  on the insurer).  Where, as  here, "the moving party will                                                        ______            bear  the burden  of  persuasion at  trial,  that party  must            support its motion with credible evidence -- using any of the            materials specified in Rule 56(c) -- that would entitle it to            a directed  verdict if not  controverted at trial."   Celotex                                                                  _______            Corp. v.  Catrett, 477  U.S.  317, 331  (1986) (Brennan,  J.,            _____     _______            dissenting on  other grounds).   In response,  the non-moving            party must either submit a supportable request for additional            discovery  time  or   "produce  evidentiary  materials   that            demonstrate the  existence of  a 'genuine issue'  for trial,"            id., and  in  so doing,  that  party "may  not  rest on  mere            ___            allegations or denials of his pleading."  Anderson v. Liberty                                                      ________    _______            Lobby, Inc., 477 U.S. 242, 256 (1986).            ___________            B.  Analysis            ____________                       The School contends  that exclusions (b) and  (c),            which preclude coverage for "any claims arising out of  . . .            assault  or battery"  and  "any claim  arising out  of bodily            injury to . . . or death of any person," do not apply because                                         -7-                                          7            the  underlying writs  alleged none  of these  excluded acts.            Moreover, the School argues, the assault and death of Gregory            Smart  need not be shown  to prove the  negligence claims and            thus, they do not "arise out of" those acts.   National Union            responds  that  the  exclusions  apply  because  the  alleged            injuries,  which   constitute  a  critical  element   of  the            negligence  actions, are  entirely related  to the  murder of            Gregory Smart and its aftermath.5                      New  Hampshire  courts  have   consistently  viewed            "arising out of" as a "`very broad, general and comprehensive            term .  . .  meaning originating  from or  growing out  of or            flowing from.'"   Merrimack Sch.  Dist. v. National  Sch. Bus                              _____________________    __________________            Serv., Inc., 661 A.2d 1197, 1199 (N.H. 1995) (reading  phrase            ___________            broadly  in context  of indemnity  agreement which  is itself            strictly  construed)  (quoting Carter  v. Bergeron,  160 A.2d                                           ______     ________            348,   353  (N.H.   1960)   (internal   alteration   omitted)            (construing insurance policy)).  Indeed, the concept embodied            in  the  phrase  "arising out  of"  appears  to  be something            broader than the concept of proximate causation.  See Carter,                                                              ___ ______            160 A.2d at 353  (observing that injuries need not  have been            "directly and  proximately caused by  the use of  the insured            vehicle" to be deemed to "arise out of" that use).   Here, if            the underlying plaintiffs' negligence claims arise out of any                                            ____________________            5.  National  Union concedes  that  the policies  would  have            covered the claims but for the exclusions.                                          -8-                                          8            of  the  excluded acts,  National  Union need  not  defend or            indemnify the School against those claims.                      While  a duty to defend6 may be found solely on the            facts pleaded in  the cause  of action, a  court may  inquire            into the  underlying facts "to avoid  permitting the pleading            strategies, whims,  and vagaries of third  party claimants to            control  the rights of parties to an insurance contract."  M.                                                                       __            Mooney  Corp. v. United States Fidelity & Guar. Co., 618 A.2d            _____________    __________________________________            793, 796-97  (N.H. 1992); see also  Titan Holdings Syndicate,                                      ___ ____  _________________________            Inc.  v. City  of Keene,  898 F.2d 265,  271 (1st  Cir. 1990)            ____     ______________            (noting that a  court must  review the facts  alleged in  the            underlying  suit  and  that   "the  legal  nomenclature   the            plaintiff uses to frame  the suit is relatively unimportant")            (discussing New  Hampshire law).   We find it  appropriate in            this  case  to  look   beyond  the  conclusory  pleadings  to            determine the applicability of the disputed exclusions.                      In   their  depositions,  all   of  the  underlying            plaintiffs state  that the reason they brought the action was            their belief that  the school was  negligent in hiring  Smart            and in supervising  her activities with the students.   Thus,            not  surprisingly,  and  consistent  with  their  writs,  the            underlying  plaintiffs unanimously conclude that the School's                                            ____________________            6.  The duty to defend is broader than the duty to indemnify,            as an insurer may be obligated to defend a groundless lawsuit            that  ultimately  does  not  give  rise  to  indemnification.            United States Fidelity & Guar. Co. v. Johnson Shoes, 461 A.2d            __________________________________    _____________            85, 87 (N.H. 1983).                                         -9-                                          9            alleged breach of  duty caused  their harm.   Whether or  not            that is true, however, does not resolve the dispositive issue            in  this appeal:  whether  the underlying  plaintiffs' claims            "arise out of" the murder of Gregory Smart.                      An essential element of the negligence claim is the            resulting  damage.  See Trudeau v. Manchester Coal & Ice Co.,                                ___ _______    _________________________            192  A. 491, 492 (N.H.  1937) (explaining that "actual damage            is an  essential element"  of negligence actions  that "[are]            brought not  to vindicate a right but to recover compensation            for negligently  inflicted personal injuries").   Thus, where            the  damages arise entirely  out of excluded  acts, the whole            claim does as  well.  Cf. All Am. Ins. Co. v. Burns, 971 F.2d                                  ___ ________________    _____            438, 442  (10th Cir. 1992) (concluding  that alleged injuries            in otherwise-covered negligence action triggered exclusions);            Continental Casualty Co. v. City of Richmond, 763  F.2d 1076,            ________________________    ________________            1081  (9th   Cir.  1985)  (finding  no   coverage  where  the            plaintiffs would have no claim for relief against the insured            if the alleged misconduct "[had] not manifested itself in the            injury").  Here, if  the underlying plaintiffs cannot prevail            on  their negligence claims without showing how the murder of            Gregory Smart  affected them,  then their claims  must "arise            out of" the excluded acts of assault, battery, bodily  injury            and death.                      All of  the evidence in  the record  points to  the            murder and its aftermath as the  source of the injuries.  For                                         -10-                                          10            example, Pierce  testified in her deposition  that the reason            for her  "loss of education" was that she missed many days of            school  because   she  had  to  testify   at  Smart's  trial,            eventually left  Winnacunnet during her junior  year, and had            trouble getting  into college  because she was  uncomfortable            asking  Winnacunnet  for help  with  her  applications.   She            stated that her  "loss of earnings"  resulted from having  to            quit her job  in order  to testify and  assist in the  trial.            She  attributed her "loss of reputation" to the fact that she            was  recognizable  from  her  involvement in  the  trial  and            complained  that she lost friends  as a result.   Pierce also            testified that her mental  anguish stemmed from the foregoing            and acknowledged that if Gregory Smart had not been murdered,            she would not have sued.                      During Randall's deposition,  he asserted, "I'm not            suing  the school because I'm in jail," but also stated "[i]f            I never got caught for killing Greg Smart, I would have never            brought  a lawsuit."  He  agreed that his  involvement in the            murder and  subsequent incarceration were the  reasons why he            (1) lost  his liberty  and employment opportunities,  (2) was            unable  to finish  high school,  (3) was  separated from  his            parents  and  fellow Winnacunnet  students, and  (4) suffered            emotional pain.   While  he declared,  "I still  suffered the            harm  whether I  got caught or  whether I got  away with [the                                         -11-                                          11            murder]," that assertion  does not negate  the fact that  his            injuries derived from his involvement in the murder.                      Flynn testified  that he believed  that because  of            the  School's negligence,  "something happened that  may have            been  averted,"  and  acknowledged his  incarceration  is the            reason why he suffers from being separated from  his parents.            Lattime acknowledged  that neither  he nor his  parents would            have brought the action  if he had not  been involved in  the            murder.                      The  parents'  deposition testimony  on  this issue            also  reveals  that  the   injuries  were  related  to  their            children's involvement in the  murder.  For example, Patricia            Randall  testified that  she brought  the lawsuit  "[b]ecause            what happened  to my son  I don't  want to happen  to anybody            else" and  acknowledged that "what  happened" to her  son was            his  incarceration for his involvement  in the murder.  Frank            Randall  testified that  while he  thought Smart  should have            been properly supervised, he  was also suing because his  son            was incarcerated.  Elaine Flynn testified that her reason for            bringing the suit was her belief that the School's negligence            caused "the  situation that occurred."   Naomi Lattime stated            that  "had [the  School]  followed  up  or done  anything  to                                         -12-                                          12            investigate a faculty/student  relationship, .  . .  possibly            this never would have happened or gone as far as it did."7                      While the School's alleged negligence in hiring and            supervising Smart could have caused the underlying plaintiffs            injuries  unrelated  to the  murder,  nothing  in the  record            supports the  existence of any  such injury.   The underlying            plaintiffs' allocation  of blame  for their  suffering, while            indicative of their belief that the School was at fault, does            not  obviate the  fact that  the record  evidence establishes            that  all of  the alleged  damages (e.g.,  harm from  loss of                  ___                           ____            liberty,  lost education and earnings, separation of students                                            ____________________            7.  Further  support  for  the  conclusion  that  the alleged            damages flow  entirely from the students'  involvement in the            murder is found in  the notice of claim sent  to Winnacunnet,            which states in part:                      [Winnacunnet's    negligence]    directly                      resulted in the manipulative relationship                      with   Pamela  Smart,   which  ultimately                      caused  the  loss   of  liberty  to  [the                      students].  Moreover, their  parents lost                      any  rights  of  parental enjoyment  with                      their sons, including  but not limited to                      loss   of   parental   rights,  loss   of                      consortium,  etc.    [Lattime's  parents]                      were also required  to expend  exorbitant                      funds,  in  excess   of  $70,000.00,   in                      defense   of  criminal   charges  brought                      against their son.   As a result of these                      damages, the  Plaintiff[s] demand maximum                      amount  of   monetary  damages  allowable                      under  the  Statutes  and/or  the  policy                      limits of  the  insurance of  the  School                      insurance policy, whichever is greater.                                         -13-                                          13            and parents) originate from, or "arise  out of," the murder.8            The School has  failed to rebut, with evidence  sufficient to            raise  a genuine  issue  of material  fact, National  Union's            showing   that  the   exclusive  source  of   the  underlying            plaintiffs' injuries (and, therefore,  their claims) was  the            murder of  Gregory Smart and  its attendant excluded  acts of            assault, battery, bodily injury and death.                      The  facts of this case are not unlike those in All                                                                      ___            Am.  Ins. Co. v.  Burns, 971 F.2d 438,  440 (10th Cir. 1992),            _____________     _____            involving a church bus  driver who was convicted  of sexually            assaulting  two  children  whom  he was  transporting.    The            victims sued the church and its board members alleging, inter                                                                    _____            alia, negligent hiring.   Id.   The board  members turned  to            ____                      ___            their insurer for defense  and indemnification, but the court            found  applicable  a policy  exclusion  for  "personal injury            arising out  of the  willful violation  of a penal  statute."            Id. at 441.   The  court explained that  a negligence  action            ___                                            ____________________            8.  We note  that the  district court carefully  reviewed the            School's motions to  reconsider its summary judgment  ruling,            permitting the  parties to supplement their  pleadings on the            very issue of the source of the claimed injuries.  The School            failed  then to  produce evidence  establishing any  issue of            material fact  on this question.   Finally, at  oral argument            before this court, counsel for the School  stated that Pierce            "felt much anguish" on the night of the murder, and thus, she            suffered  whether or  not  the murder  was  committed.   This            assertion is too little to late.   Not only is it unsupported            by any  record evidence,  the purported "anguish"  stems from            the murder  conspiracy and likely falls  within exclusion (a)            which bars coverage for "any claim involving allegations of .            . . criminal acts."                                         -14-                                          14            depends  not  only upon  a breach  of  duty, "`but  also upon            damage or injury  suffered by the plaintiff as  a consequence            of the  violation of duty.'"   Id.  (quoting 57A Am.  Jur. 2d                                           ___            Negligence   142,  at 202-03 (1989)).  Thus,  the court found            __________            that the general negligence  allegations in the complaint did            not compel  coverage because the claimed  injuries undeniably            stemmed from the sexual assault.  Id. at 442.9                                              ___                      Our  resolution  of this  case  is  consistent with            cases  in other  jurisdictions, relied  upon by  the district            court, recognizing that an exclusion for  a claim arising out            of an assault also bars coverage  for a claim that an insured            negligently allowed an  assault to occur.   See, e.g., United                                                        ___  ____  ______            Nat'l Ins. Co.  v. Entertainment Group,  Inc., 945 F.2d  210,            ______________     __________________________            213-14  (7th  Cir.  1991) (applying  Illinois  law);  Audubon                                                                  _______            Indem. Co.  v. Patel, 811 F. Supp.  264, 265 (S.D. Tex. 1993)            __________     _____                                            ____________________            9.  The School relies on Durham City Bd. of Educ. v. National                                     ________________________    ________            Union Fire Ins.  Co., 426  S.E.2d 451, 455  (N.C. Ct.  App.),            ____________________            review denied, 431 S.E.2d 22 (N.C. 1993), involving identical            _____________            exclusions in a similar errors and omissions policy.  In that            case,  a student  who allegedly  had been  raped by  a school            coach sued the school board for, inter alia, negligent hiring                                             _____ ____            and  supervision.   Id. at  454.   In a brief  and conclusory                                ___            analysis, the court found that the exclusions did not bar the            duty  to  defend  because  the allegations  were  for  "money            damages  suffered as a result of . . . negligent supervision"            and did not  include the rape as a  "necessary feature."  Id.                                                                      ___            at 456, 457.                      We  find  this perfunctory  treatment unpersuasive.            Unlike  that court, we are not content to decide the coverage            issue  based solely  on the  allegations on  the face  of the            writ.  Here, the underlying plaintiffs' damages, a "necessary            feature" of their negligence claim, have all been shown to be            inextricably related to the excluded acts.                                         -15-                                          15            (applying Texas law); St. Paul Surplus Lines Ins. Co. v. 1401                                  _______________________________    ____            Dixon's  Inc.,  582 F.  Supp.  865,  867-68  (E.D. Pa.  1984)            _____________            (applying Pennsylvania law).   These cases held that coverage            was barred  because the  excluded acts, assault  and battery,            were the immediate  cause of  the injury giving  rise to  the            action.                      The School  argues that these cases  are completely            inapposite  because  (1) unlike  those cases,  the underlying            plaintiffs here are not the ones who suffered the assault and            (2) in any event, the writs do not allege a negligent failure            to  prevent assault.   We  are not  persuaded.   The School's            first  "distinction"  runs  afoul  of  exclusion  (c),  which            applies  in  the  case of  bodily  injury  or  death of  "any            person."  As to  the second, from the evidence  pertaining to            the  alleged  damages  here,  it  is  as  if  the  underlying            plaintiffs,   though  styling   their  claims   as  negligent            hiring/supervision, have alleged that the  School negligently            permitted an assault to occur.  Cf. United Nat'l Ins. Co.  v.                                            ___ _____________________            The Tunnel, Inc., 988  F.2d 351, 354 (2d Cir.  1993) (denying            ________________            coverage where "plaintiff is  seeking to recover by `dressing            up  the substance'  of  one claim,  here  a battery,  in  the            `garments' of another, here  negligence").  Finally, it would            make  little sense to bar  coverage for an  action brought by            the  estate  of Gregory  Smart --  the  one who  suffered the            bodily injury and death -- but find coverage for an action by                                         -16-                                          16            those who actually inflicted the injury and who claim damages            relating entirely to that event.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      While  undoubtedly  there  are  cases  in  which  a            negligent  hiring   or  supervision   claim  does   not  seek            compensation  for damages  arising entirely  out of  excluded            acts,  this  is  not  one  of  them.10    For  the  foregoing            reasons,  the judgment  of  the district  court is  affirmed.                                                                affirmed                                                                ________            Costs to appellee.            Costs to appellee            _________________                                            ____________________            10.  Because we agree with the district court's well-reasoned            conclusion that policy exclusions (b) and (c) barred coverage            of the claims against the School, we need not reach the issue            of the applicability of exclusion (a).                                         -17-                                          17
