                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1652


GEMINI INSURANCE COMPANY,

                    Plaintiff - Appellee,

             v.

EARTH TREKS, INC.,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:16-cv-02520-RDB)


Submitted: February 20, 2018                                      Decided: March 27, 2018


Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Lawrence J. Gebhardt, Gregory L. Arbogast, Keith M. Lusby, GEBHARDT & SMITH
LLP, Baltimore, Maryland, for Appellant. William H. White, Jr., Mana Kinoshita,
BONNER KIERNAN TREBACH & CROCIATA, LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       In 2011, Kelsey Fabian filed a civil action in Maryland state court (the “Fabian suit”)

against Earth Treks, Inc. (“Earth Treks”), alleging claims for negligence; negligent hiring,

supervision, and retention; and respondeat superior. The Fabian suit was predicated on

Fabian’s alleged sexual abuse by two of Earth Treks’ coaches, 19-year-old Daniel

Montague and 31-year-old Michael Lyons, when Fabian was a 14-year-old member of

Earth Treks’ competitive youth climbing team. Earth Treks sought indemnification and

defense from Gemini Insurance Company (“Gemini”), its liability insurer, which disputed

liability. During the pendency of the Fabian suit, Gemini filed a declaratory judgment

action in federal district court, seeking a declaration that it owed Earth Treks no defense or

indemnity in the Fabian suit or, alternatively, that its liability was limited to $100,000 under

several endorsements to the parties’ insurance policy (the “policy”).             Earth Treks

counterclaimed for breach of the duty to defend.

       In response to the parties’ cross-motions for summary judgment, the district court

held that Gemini had a duty to defend Earth Treks in the Fabian suit but that its liability

was limited to $100,000 based alternatively on the “Sexual Abuse and Molestation”

endorsement (“SAM endorsement”) or the “Assault, Battery, or Assault and Battery”

endorsement (“A&B endorsement”) in the policy. Because a settlement in the Fabian suit

effectively resolved the remainder of the suit, the parties stipulated to the entry of final

judgment. Earth Treks now appeals the district court’s order, challenging its rulings

limiting Gemini’s duty to defend to $100,000 based on the SAM and A&B endorsements.

For the reasons that follow, we affirm.

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       We review de novo the district court’s disposition of cross-motions for summary

judgment. Libertarian Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013). In so doing,

we view the facts and reasonable inferences drawn therefrom in the light most favorable to

the nonmoving party. Pender v. Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015).

“Summary judgment is appropriate when there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” S.B. ex rel. A.L. v. Bd. of Educ.

of Hartford Cty., 819 F.3d 69, 74 (4th Cir. 2016) (alteration and internal quotation marks

omitted). Where we are sitting in diversity to consider a matter of state law, we must apply

the governing state law or, where an issue is unsettled, predict how the state’s highest court

would rule on the issue. Champion Pro Consulting Grp., Inc. v. Impact Sports Football,

LLC, 845 F.3d 104, 108 (4th Cir. 2016).

       “Under Maryland law, . . . the insurer’s duty to defend is a ‘contractual duty arising

out of the terms of a liability insurance policy’ and is ‘broader than the duty to indemnify.’”

Cowan Sys., Inc. v. Harleysville Mut. Ins. Co., 457 F.3d 368, 372 (4th Cir. 2006) (quoting

Litz v. State Farm Fire & Cas. Co., 695 A.2d 566, 569 (Md. 1997)). To determine whether

a liability insurer has a duty to defend, the Maryland courts have articulated a two-part

inquiry: “(1) [W]hat is the coverage and what are the defenses under the terms and

requirements of the insurance policy? [and] (2) [D]o the allegations in the tort action

potentially bring the tort claim within the policy’s coverage?” Md. Cas. Co. v. Blackstone

Int’l Ltd., 114 A.3d 676, 682 (Md. 2015) (internal quotation marks omitted); see Capital

City Real Estate, LLC v. Certain Underwriters at Lloyd’s London, 788 F.3d 375, 379 (4th

Cir. 2015) (discussing test).      “The first question focuses upon the language and

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requirements of the policy, and the second question focuses upon the allegations of the tort

suit.” Moscarillo v. Prof’l Risk Mgmt. Servs., Inc., 921 A.2d 245, 250 (Md. 2007) (internal

quotation marks omitted).

       Importantly, “[e]ven if a tort plaintiff does not allege facts which clearly bring the

claim within or without the policy coverage, the insurer still must defend if there is

a potentiality that the claim could be covered by the policy.” Aetna Cas. & Sur. Co. v.

Cochran, 651 A.2d 859, 861 (Md. 1995) (internal quotation marks omitted). “If there is

any doubt as to whether there is a duty to defend, it is resolved in favor of the insured.”

Walk v. Hartford Cas. Ins. Co., 852 A.2d 98, 106-07 (Md. 2004); see Cowan, 457 F.3d at

372. If a potentiality of coverage exists as to only some of the claims against the insured,

the insurer has a duty to defend the entire action. Perdue Farms, Inc. v. Travelers Cas. &

Sur. Co. of Am., 448 F.3d 252, 258 (4th Cir. 2006); see Montgomery Cty. Bd. of Educ. v.

Horace Mann Ins. Co., 860 A.2d 909, 921 (Md. 2004); Utica Mut. Ins. Co. v. Miller, 746

A.2d 935, 940 (Md. Ct. App. 2000).

       “While the Maryland Court of Appeals has ‘held that an insurer may not use

extrinsic evidence to contest coverage if the tort suit complaint establishes a potentiality of

coverage,’ it has set forth a different rule for an insured.” Capital City Real Estate, 788

F.3d at 381 (4th Cir. 2015) (quoting Cochran, 651 A.2d at 863-64). Under that rule, “an

insured may establish a potentiality of coverage under an insurance policy through the use

of extrinsic evidence.” Cochran, 852 A.2d at 866; see Litz, 695 A.2d at 570.

       As an initial matter, the parties disagree regarding the evidence that the district court

and this Court are permitted to consider in determining the applicability of the SAM and

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A&B endorsements. Earth Treks first argues that the district court erred in relying on

extrinsic evidence that it provided to the court but did not specifically highlight or cite in

its argument.

         We find this contention unpersuasive.      Generally, in considering a summary

judgment motion, “[t]he court need consider only the cited materials, but it may consider

other materials in the record.” Fed. R. Civ. P. 56(c)(3). Even in the context of a duty to

defend, Earth Treks identifies no authority requiring a court to accept an insured’s selective

version of the evidence while ignoring other relevant evidence contained in documents

proffered by the insured, simply because the insured has not specifically highlighted or

cited that evidence in its summary judgment pleadings. Earth Treks argues that considering

deposition excerpts provided, but not highlighted, by the insured is tantamount to

considering extrinsic evidence provided by the insurer. To the contrary, the district court

was not required to turn a blind eye to testimony that Earth Treks itself placed before the

court.

         For its part, Gemini asserts that the district court was permitted to consider

additional extrinsic evidence that it provided, after determining that a duty to defend

existed, in considering whether the endorsements applied to limit the scope of its liability

and to refute Earth Treks’ statement of material facts. Although we conclude that Gemini

was not required to cross-appeal to raise this contention as an alternative basis for

affirmance, see Jennings v. Stephens, 135 S. Ct. 793, 798 (2015), we decline to reach this

contention, as we affirm the district court’s judgment without resort to Gemini’s extrinsic

materials.

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       Turning next to the A&B endorsement, Earth Treks primarily asserts that this

endorsement is potentially inapplicable because Lyons’ and Montague’s sexual contact

was not a battery, as a reasonable factfinder could conclude that Fabian consented to, and

was not harmed by, that contact.

       Under Maryland law, a battery cannot occur if the alleged victim consents to the

contact alleged to be harmful or offensive. Beall v. Holloway-Johnson, 130 A.3d 406, 416

(Md. 2016). A child under the age of 14 can consent to a battery, at least for purposes of

defending against a civil action brought by the child for damages. See McQuiggan v. Boy

Scouts of Am., 536 A.2d 137, 141-42 (Md. Ct. App. 1988). However, the Maryland courts

have squarely held that “[s]exual contact by an adult upon a minor child clearly falls within

our society’s definition of offensive and harmful contact.” Pettit v. Erie Ins. Exchange,

699 A.2d 550, 557 (Md. Ct. App. 1997) (“Pettit I”). “[A]lthough consent is a defense to

battery, consent to sexual contact with an adult cannot be given by a child as a matter of

law.” Id. And “[a]s a matter of law, any sexual contact between an adult and a child,

whether or not accompanied by force, is injurious to the child.” Id. at 559; see Pettit v.

Erie Ins. Exchange, 709 A.2d 1287, 1291 (Md. 1998) (“Pettit II”).

       Although Earth Treks attempts to distinguish this case from Pettit I on several

grounds, we find these arguments unpersuasive. Earth Treks is correct that Fabian was

above the age at which a child can become a victim of statutory rape under Md. Code Ann.,

Crim. Law §§ 3-304(a)(3), 3-307 (2012 & Supp. 2016) and Md. Code Ann., Crim. Law §

3-306(a)(3) (2012 & Supp. 2016) (repealed Oct. 1, 2017). But that argument is of little

moment, as Maryland law has codified additional strict liability crimes precluding sexual

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contact with a 14-year-old victim by a 19-year-old or 31-year-old adult. See Md. Code

Ann., Crim. Law §§ 3-307(a)(4), (5), 3-308-(b)(2), (3) (2012 & Supp. 2016). Under the

statutory scheme, Fabian’s consent to Montague’s and Lyons’ sexual contact is equally

unavailable as a defense to those criminal offenses. See Walker v. State, 768 A.2d 631,

636-37 (Md. 2001); Tate v. Bd. of Educ., Prince George’s Cty., 843 A.2d 890, 897 (Md.

Ct. App. 2004). Such offenses are “not predicated upon the victim’s unwillingness to

participate, but rather upon the societal notion that a child of tender years has not yet been

able to form the necessary sophistication to fully comprehend the potentially adverse

effects of sexual activity.” Tate, 843 A.2d at 897; see Pettit II, 709 A.2d at 1291.

       While Earth Treks analogizes to Tate, we agree with the district court that Tate is

distinguishable from the current dispute. Tate establishes that a minor victim’s actual

consent to sexual contact can be relevant to demonstrate that the victim assumed the risk

that her conduct would expose her to her abuser’s sexual contact, when assumption of risk

is raised as a defense to the victim’s civil claims against a third party to the abuse. 843

A.2d at 892, 898, 901. Here, however, Earth Treks attempts to use the issue of consent for

a different purpose. To challenge the application of the A&B endorsement, Earth Treks

raises the issue of consent to establish that Lyons’ and Montague’s sexual conduct was not

a battery because the conduct was welcomed and, thus, not harmful or offensive to her.

Tate does not speak to this issue, as it expressly declined to determine whether an

assumption of risk defense would be available to the actual abuser and in limiting its

holding to the facts presented. Id. at 901 & n.8. And unlike the analysis in Tate, which

readily acknowledged that the underlying sexual conduct was criminal, applying Tate’s

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holding in the manner Earth Treks advocates is tantamount to deeming Montague’s and

Lyons’ conduct noncriminal, which runs afoul of the policy considerations that render

consent unavailable as a defense to criminal liability. We therefore find little basis to

conclude that the Maryland Court of Appeals would apply the reasoning in Tate, as

opposed to that in Pettit I, to the circumstances presented here.

       Earth Treks also contends that the district court erroneously resolved factual

disputes in favor of Gemini in determining that Fabian was harmed by Lyons’ and

Montague’s sexual contact. Assuming, without deciding, that the court erred, we conclude

that any such error was harmless. As the court observed, and as explained above,

Montague’s and Lyons’ sexual conduct with Fabian is harmful and injurious to her as a

matter of law, regardless of whether she suffered any actual physical injury. See Pettit II,

709 A.2d at 1291; Pettit I, 699 A.2d at 557, 559.

       Finally, Earth Treks argues that at least some of the claims in the Fabian suit do not

fall within the compass of the list of covered claims enumerated in the A&B endorsement.

Our review of the endorsement reveals that the relevant language is sufficiently broad to

encompass all of the claims Fabian raised against Earth Treks. Thus, we conclude that the

district court properly determined, as a matter of law, that the A&B endorsement limited

Gemini’s duty to defend to $100,000. *




       *
        Because we conclude that the $100,000 limitation was properly applied on this
basis, we need not reach the parties’ remaining arguments regarding the application of the
SAM endorsement.

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      Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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