                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-2233


ALLAN CARL RANTA,

                Plaintiff - Appellant,

          v.

THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA,

                Defendant - Appellee,

          and

WAYLAND YODER BROWN,

                Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:11-cv-00074-SB)


Submitted:   May 18, 2012                   Decided:   July 24, 2012


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lawrence E. Richter, Jr., Aaron E. Edwards, THE RICHTER FIRM,
LLC, Mt. Pleasant, South Carolina, for Appellant.    Richard A.
Farrier, Jr., Robert H. Jordan, NELSON MULLINS RILEY &
SCARBOROUGH, LLP, Charleston, South Carolina; David M. Spector,
Dennis G. LaGory, David C. Giles, SCHIFF HARDIN LLP, Chicago,
Illinois, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Allan   Carl   Ranta    brought   suit      against   the   Catholic

Mutual Relief Society (“Catholic Mutual”), seeking a declaratory

judgment that the insurance company is required to indemnify

Wayland Yoder Brown, a defrocked priest and convicted pedophile,

for the $100 million tort judgment Ranta obtained against him.

The district court granted Catholic Mutual’s motion for summary

judgment and denied Ranta’s cross motion for summary judgment,

and Ranta now appeals.        We have reviewed the record and find no

reversible error.      Accordingly, we affirm.

             In 2006, Ranta brought suit against Brown, the Holy

See,   the   Roman   Catholic      Diocese   of   Savannah,     and     Most   Rev.

Raymond Lessard and J. Kevin Boland, the Diocese’s former and

current bishops, in South Carolina state court, alleging that

Brown sexually molested, raped, and physically assaulted him as

a minor from 1978 to 1982, resulting in years of psychological

damage with physical manifestations.              In 2009, Ranta reached a

“Settlement     Agreement    and    Release”      with    the   Roman    Catholic

Diocese of Savannah, Lessard, and Boland, whereby Ranta agreed

to release “any and all” claims against the named Defendants, as

well as the Defendants’ insurers, including Catholic Mutual.                     In

return, the Defendants agreed to pay Ranta $4.24 million “in

full settlement and discharge of all claims which are, or might

have been, the subject matter of the Complaint.”

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             Ranta subsequently filed a motion for summary judgment

against Brown, who was not a party to the Settlement Agreement.

In response, Brown pled his Fifth Amendment right against self-

incrimination.       The South Carolina Court of Common Pleas granted

Ranta summary judgment on all causes of action, awarding him $50

million in actual damages and $50 million in punitive damages

based upon “the violent and severe sexual abuse” suffered by

Ranta, the pain and suffering that resulted, and the extensive

and substantial medical care incurred.                Ranta v. Roman Catholic

Diocese of Savannah, No. 2006-CO-27-143 (S.C. Ct. Comm. Pl. Jan.

10, 2010).

             In   December    2010,    Ranta    brought       the    instant    action

against Catholic Mutual in South Carolina state court, seeking a

declaratory       judgment    that    Catholic       Mutual     is    obligated     to

indemnify    Brown    for    the   $100     million    tort    judgment      obtained

against him.       Catholic Mutual removed the case to federal court,

and   both   parties    filed      motions     for    summary       judgment.      The

district     court   found    that    the     Settlement      Agreement      did   not

release Catholic Mutual with respect to Ranta’s claims against

Brown.     However, the court ruled that summary judgment in favor

of    Catholic     Mutual    was     nonetheless       warranted,       as     Brown’s

intentional acts of sexual molestation did not constitute an

“occurrence” under the insurance policy at issue.                      The district



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court denied Ranta’s subsequent motion to alter or amend the

court’s judgment, and Ranta timely appealed.

           We   review   the   district   court’s   grant   of   summary

judgment de novo.    Jennings v. Univ. of N.C., 482 F.3d 686, 694

(4th Cir. 2007) (en banc).       Summary judgment shall be granted

“if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.”      Fed. R. Civ. P. 56(a).        “At the summary judgment

stage, facts must be viewed in the light most favorable to the

nonmoving party only if there is a genuine dispute as to those

facts.”    Scott v. Harris, 550 U.S. 372, 380 (2007) (internal

quotation marks and citation omitted).        “Where the record taken

as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.”           Id.

(internal quotation marks and citation omitted).

           Under South Carolina choice of law rules, ∗ an insurance

policy is governed by the law of the state in which the policy

was issued.     Unisun Ins. Co. v. Hertz Rental Corp., 436 S.E.2d

549, 551-52 (S.C. Ct. App. 1993).         Brown is a Georgia resident

and the policy was issued in Georgia; therefore, Georgia law

governs the interpretation of the insurance policy.         Pursuant to

     ∗
       As the district court sits in South Carolina, South
Carolina choice of law rules govern this diversity case. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).



                                   5
Georgia law, to establish a prima facie case on a claim under an

insurance policy, the insured must show that the occurrence was

within the insured risk.               Perry v. State Farm Fire & Cas. Co.,

676 S.E.2d 376, 378 (Ga. Ct. App. 2008); Allstate Ins. Co. v.

Grayes, 454 S.E.2d 616, 618 (Ga. Ct. App. 1995).

            The    policy       at    issue   provides      coverage     for     personal

injuries    caused    by    an       “occurrence,”       which    is   defined    as    “an

accident,     including         injurious     exposure      to     conditions,        which

results, during the certificate period, in personal injury . . .

neither    expected       nor     intended        from   the     standpoint      of    the”

insured party.        Although the policy does not define the term

“accident,” Georgia caselaw defines an accident as “an event

which   takes     place    without       one’s      foresight     or   expectation       or

design.”     Perry, 676 S.E.2d at 378 (citing Crook v. Ga. Farm

Bureau Mut. Ins. Co., 428 S.E.2d 802, 803 (Ga. Ct. App. 1993)).

            On appeal, Ranta asserts that the district court erred

in finding that Brown’s acts of sexual abuse did not constitute

an “occurrence.”          According to Ranta, Brown knew or should have

known he was a danger to children, yet failed to protect Ranta

from him, thereby breaching his fiduciary duties as a priest.

Therefore,        Ranta     contends,             Brown’s      conduct     constitutes

negligence,       which    triggers       coverage       under     Catholic      Mutual’s

insurance policy.



                                              6
            However,       the    district    court    properly    found       that

Ranta’s    attempt    to    recharacterize     Brown’s    egregious      acts    of

child rape and sexual molestation as negligence does not render

Brown’s conduct accidental.          Numerous Georgia courts have denied

insurance    coverage       for    intentional    acts     of   sexual       abuse,

regardless of attempts to recast acts of child molestation in

terms of negligence.        See Roe v. State Farm Fire & Cas. Co., 376

S.E.2d 876, 877 (Ga. 1989) (rejecting argument that insurance

coverage    was     warranted     because    insured   perpetrator       sexually

molested child due to obsessive compulsion, without intent to

injure child, as “intentional child molestation carries with it

a presumption of intent to inflict injury”); Harden v. State

Farm Fire & Cas. Co., 605 S.E.2d 37, 38 (Ga. Ct. App. 2004)

(finding    that    homeowner’s     insurance    company     had   no    duty   to

indemnify insured who sexually molested a minor child, as the

insured “engaged in intentional (not accidental) sexual abuse of

the child, causing physical and mental damage to the child which

he could only have expected and intended”).

            Indeed, overwhelming precedent establishes that acts

of child molestation are, as a matter of law, considered to be

intentional and therefore outside the scope of an “occurrence”

for insurance coverage purposes.              See Mfr. & Merch. Mut. Ins.

Co. v. Harvey, 498 S.E.2d 222, 226 (S.C. Ct. App. 1998) (listing

decisions    from    forty-one     states    finding     that   acts    of    child

                                        7
sexual     molestation      carry    presumption         of     intent      to     inflict

injury).     Although Ranta alleges that Brown acted negligently by

failing to protect Ranta against him, the allegations of sexual

misconduct      involve    intentional,         willful,      and   deliberate        acts.

Moreover,       because    Brown’s    acts       of   sexual        abuse     carry      the

inferred intent to harm Ranta, the acts alleged against Brown

are not “occurrences” and, therefore, are beyond the scope of

Catholic Mutual’s insurance coverage.

            Ranta next asserts that the district court erroneously

awarded Catholic Mutual summary judgment because Catholic Mutual

failed     to    defend    Brown     in    the     underlying         South       Carolina

litigation,      thereby    waiving       its    coverage       defense.          Because

Catholic Mutual elected not to defend Brown, Ranta advances,

Catholic Mutual is estopped from challenging the state court’s

judgment     that   Brown’s    negligence          was   a     proximate         cause    of

Ranta’s injuries.

            The district court properly rejected Ranta’s argument,

as the elements of collateral estoppel are not present.                               Under

South Carolina law, collateral estoppel precludes only “a party

to the prior action or one in privity with a party to the prior

action” from relitigating an issue previously litigated.                                 Ex

parte Allstate Ins. Co., 528 S.E.2d 679, 681 (S.C. Ct. App.

2000).     The term “privy” means “one so identified in interest

with another that he represents the same legal right.”                                   Id.

                                           8
Accordingly, when an insurer elects not to defend a tort suit on

the ground that the insured’s tortious conduct was outside the

scope of the insurance policy, the insured and the insurer do

not    share    an    identity       of    interest    regarding       the     underlying

action and, therefore, are not in privity.                      See State Farm Fire

& Cas. Co. v. Garrity, 785 F.2d 1225, 1227 (4th Cir. 1986)

(“When    the    insured      is    sued    for    negligence    and    the       insurance

company believes the injury was intentional, [ ] the interests

of the insurer and the insured diverge.”).

               Moreover, an insurance company “is neither obligated

to defend nor bound by the findings of the court if the claim

against the insured is not covered by the policy.”                           Farm Bureau

Mut. Auto. Ins. Co. v. Hammer, 177 F.2d 793, 799 (4th Cir.

1949).     The district court properly found that the allegations

of    Ranta’s    complaint         established      that   there    was      no    duty    to

defend.     Accordingly, the South Carolina tort judgment does not

bar   Catholic       Mutual    from       asserting   that   Brown’s         conduct      was

intentional      and,    therefore,         outside    the    scope       of      insurance

coverage.

               Based on the foregoing, we affirm the judgment of the

district    court.       We    dispense       with    oral   argument        because      the

facts    and    legal   contentions          are   adequately      presented        in    the




                                              9
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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