                        In the Missouri Court of Appeals
                                Eastern District
                                          DIVISION TWO


  D.M.A. by Next Friend,                              )   No. ED102866
  TINA PARSLEY-HUGHES,                                )
                                                      )
          Appellant,                                  )
                                                      )
  vs.                                                 )   Appeal from the Circuit Court of
                                                      )   St. Charles County
  MICHAEL HUNGERFORD,                                 )
                                                      )
          Defendant,                                  )
                                                      )   Honorable Jon A. Cunningham
  and                                                 )
                                                      )
  MISSOURI UNITED SCHOOL                              )
  INSURANCE COUNCIL,                                  )   Filed: February 23, 2016
                                                      )
          Respondent.                                 )

                                             Introduction

        In this insurance coverage dispute, D.M.A. (Plaintiff) appeals the Circuit Court of St. Charles

County’s order and judgment granting the Missouri United School Insurance Counsel’s (MUSIC)

motion for summary judgment and denying Plaintiff’s motion for summary judgment. In a single point

on appeal, Plaintiff argues that the trial court erred in granting MUSIC’s motion for summary

judgment because, contrary to the trial court’s interpretation, the policy covered sexual misconduct.

We affirm.
                                        Factual Background

       Michael Hungerford was a special education teacher at the Forsyth R-III School District (the

District). In 2008, he molested one of his students, D.M.A. (Plaintiff). Hungerford was convicted of

first-degree child molestation and sentenced to ten years’ imprisonment.

       Plaintiff brought a civil action against Hungerford, the District and two administrators. The

District had an insurance policy—“Combined Liability Coverage Agreement”—through MUSIC.

Pursuant to the insurance policy (the Policy), MUSIC provided a defense to the District, the

administrators, and Hungerford in his official capacity. However, MUSIC did not defend Hungerford

for Plaintiff’s claims against him as an individual. Plaintiff entered into a settlement agreement with

the District and the administrators. Plaintiff then amended her petition against Hungerford, pleading a

claim for “sexual misconduct.” Hungerford did not answer the petition and the trial court entered a

default judgment against him for $10,000,000.

       Subsequently, Plaintiff filed a separate action to garnish insurance funds from MUSIC to

satisfy her $10,000,000 default judgment against Hungerford. Both parties filed motions for summary

judgment. The trial court granted MUSIC’s motion. In its order, the trial court concluded that: 1)

Hungerford was not a “Covered Person” under the policy; 2) Hungerford’s intentional sexual

molestation of Plaintiff was not an “Occurrence” under the policy; 3) Hungerford’s intentional

wrongful acts were excluded under the insurance plan; 4) Missouri precedent excludes liability

coverage for teachers who assault students; and 5) there was no ambiguity in the insurance policy

regarding whether sexual molestation is covered. Plaintiff appeals.

                                         Standard of Review

       The interpretation of an insurance policy, and the determination whether coverage and

exclusion provisions are ambiguous, are questions of law that this Court reviews de novo. Seeck v.




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Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). This Court also applies a de novo

standard of review to a trial court’s grant of summary judgment. Am. Std. Ins. Co. v. Hargrave, 34

S.W.3d 88, 89 (Mo. banc 2000). “An order of summary judgment may be affirmed under any theory

that is supported by the record.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010) (citation

omitted). We review the record in the light most favorable to the party against whom summary

judgment was granted. Woodling v. Polk, 473 S.W.3d 233, 235 (Mo. App. E.D. 2015).

                                                      Discussion

        In the present case, Plaintiff claims that the trial court erred in granting MUSIC’s motion for

summary judgment. Specifically, Plaintiff argues that Hungerford is a “Covered Person” under the

Policy; 2) sexual misconduct is an “Occurrence” under the Policy; 3) the Policy is ambiguous; 4) the

exclusions do not cure the policy of its ambiguity; and 5) Todd v. Missouri United School Ins. Council,

223 S.W.3d 156 (Mo. banc 2007) is not controlling precedent. 1 MUSIC counters that Hungerford is

not a “Covered Person;” that Hungerford’s sexual molestation of Plaintiff is not an “Occurrence;” that

the Policy is unambiguous because the Policy expressly excludes Hungerford’s sexual molestation of

Plaintiff from the scope of coverage; and that Todd is controlling precedent. MUSIC further argues

that coverage for Plaintiff’s claims against Hungerford would violate public policy.

        The general rules of contract interpretation apply to insurance contracts. When interpreting

insurance contracts, we must discern whether the language is ambiguous or unambiguous. Peters v.

1
  Additionally, Plaintiff argues that the default judgment against Hungerford binds MUSIC because Plaintiff alleged
“Sexual Misconduct,” which is a covered occurrence under the Policy. Plaintiff contends that MUSIC had a duty to defend
Hungerford, failed to do so, and is bound by the underlying default judgment. This argument fails given the Missouri
Supreme Court’s holding in James v. Paul, 49 S.W.3d 678 (Mo. banc 2001). That case, factually similar to the present
case, dealt with a criminal conviction establishing intentional conduct, followed by a tort action in which the trial court
concluded that the defendant “did not intend or expect for [the victim] to be injured.” Id. at 680-81. Thereafter, the
plaintiff filed an equitable garnishment action, alleging that the underlying civil judgment established coverage under the
defendant’s insurance policy. Id. at 681. The Supreme Court held that the defendant’s guilty plea established intentional
conduct and, therefore, the insurance company “justifiably relied on the prior . . . determination in concluding it had no
coverage and, thus, no duty to defend.” Id. at 689. Here, MUSIC was entitled to rely on Hungerford’s previous conviction
for first-degree molestation, establishing that Hungerford acted intentionally. Accordingly, the default judgment does not
bind MUSIC and Plaintiff’s argument is without merit.


                                                            3
Employers Mut. Cas. Co., 853 S.W.2d 300, 301-02 (Mo. banc 1993). If the policy is ambiguous, we

must construe the policy in favor of the insured. Todd, 223 S.W.3d at 160. However, if it is

unambiguous, we enforce the policy as written. Id.

           The MUSIC policy (the Policy) provides a “Program Coverage Summary” at the beginning of

the policy document.             The summary page lists “Sexual Misconduct Coverage” under “General

Liability” coverages. Further in the document, the Policy separates two types of coverage, Coverage A

and Coverage B. The language of the policy is as follows:2

                                                    Coverage Agreement

           1.     COVERAGE A: Occurrence Coverage – Bodily Injury – Property Damage –
           Personal Injury. We will pay on behalf of a Covered Party all Damages up to the
           Limit of Liability as a result of an Occurrence in the Coverage Territory.

           2.     COVERAGE B: Claims-Made Coverage – School Board Legal
           Liability/Wrongful Acts. We will pay on behalf of a Covered Party all Damages up to
           the Limit of Liability as a result of a Wrongful Act after the Date of First Coverage to
           which this Coverage Agreement applies and for which a Claim is first made against the
           Covered Party in the Coverage Territory during the Coverage Period and reported to us
           as soon as reasonably practicable but not later than 60 days after the end of the
           Coverage Period.

The Policy also provides various definitions. For purposes of the present case, the relevant definitions

are as follows:

           Covered Party means, whether in the singular or plural, the Covered Organizations and
           the Covered Persons or any of them.

           Covered Persons means:
           ...
           b. at the option of the Member, and except as otherwise provided in this definition, any
           employee, student teacher, teaching assistant or uncompensated volunteer while acting
           at the direction of or performing services for or on behalf of the Member with its
           knowledge and consent[.]

                                                   *        *        *

           Member means the school district, community college, or other educational entity.
2
    The formatting of the original policy puts certain terms in bold, as we have duplicated here.


                                                                4
       Occurrence means an accident during the Coverage Period, an event that first occurs
       during the Coverage Period, or continuous, intermittent or repeated exposure to
       conditions that commence during the Coverage Period that causes Bodily Injury,
       Personal Injury or Property Damage neither expected nor intended by the Covered
       Party.

                                       *       *       *

       For the purpose of this Document:
               Bodily Injury or Property Damage that results from an act that is intended by
       the Covered Party, or that can be expected from the standpoint of a reasonable person,
       to cause Bodily Injury, Personal Injury or Property Damage, even if the injury or
       damage is of a different degree or type than actually intended or expected, is not injury
       or damage “neither expected nor intended.”

                                       *       *       *

       Sexual Molestation means injury resulting from illegal or otherwise wrongful sexual
       conduct with a minor child.

       The Policy also includes some relevant exclusions. Under Paragraph 19, the Policy states that

MUSIC is not liable for:

       o.     any fraudulent, dishonest, malicious, criminal or intentional wrongful act or
       omission by a Covered Party.

       p.      liability of any Covered Person who knowingly committed any unlawful act; or
       who committed sexual assault, sexual or physical abuse or Sexual Molestation; or who
       intentionally caused damage, harm or injury; or any liability for sexual assault, sexual
       or physical abuse or Sexual Molestation, involving the same individual, that initially
       occurred after the Member had knowledge of any actual or alleged wrongful act by the
       individual.

       Here, the parties dispute whether the Todd case is instructive as to whether Hungerford’s sexual

molestation of Plaintiff is an “Occurrence” under the Policy. The insurance policy at issue in Todd

was the same as the Policy in the present case. We conclude that Todd is both instructive and

controlling precedent.

       In Todd, a substitute teacher physically assaulted a student by “grabbing him by the neck and

lifting him off the ground.” 223 S.W.3d at 159. The teacher pleaded guilty to third-degree criminal



                                                   5
assault and endangering the welfare of a child. Id. The student’s family filed suit against the teacher,

the school district, and school board members. Id. The family settled with the teacher, and per the

terms of the settlement, sought $100,000 from MUSIC to satisfy the judgment. Id. MUSIC disputed

coverage and the trial court concluded that the policy did not cover the teacher’s assault of the student.

Id. at 159-60. The student appealed. Id. The Missouri Supreme Court held that “[w]hen read as a

whole, nothing in the coverage or the exclusions would give the [student] any expectation of coverage

for intentional acts of [the teacher], the ‘Covered Party.’” Id. at 165. The Court also concluded that

the teacher’s intentional assault of the student was not a covered “Occurrence” under the plain

language of the policy. Id. In addressing the student’s argument that definition of the term of

“Occurrence” was ambiguous, the Court stated:

                The [student’s] argument . . . fails to consider that the policy includes two
        coverages: “Coverage A” for individual employees and “Coverage B” that provides
        coverage for the district. While “Coverage A” does not provide coverage for the
        intentional acts of individuals, “Coverage B” provides coverage to the district for its
        vicarious liability for certain intentional acts of its employees.
                The supplemental provisions referring to intentional torts address the situation
        where an employee or other person with a relationship to the district, such as [the
        substitute teacher], intentionally harms someone and the injured party brings a
        negligence action against the district, not the employee. According to the plain
        language of the policy, in such an action the district is the Covered Party and so long as
        the district did not intend or expect the employee’s intentional act, it will be a covered
        “Occurrence.” There will be no coverage when, as in this case, the action is brought
        against the employee who committed the intentional tort.

Id. at 164.

        In this case, Plaintiff similarly argues that the Policy is ambiguous because the Policy’s

summary page lists “Sexual Misconduct” as an “Occurrence,” while the Policy also excludes coverage

for “Sexual Molestation.” Plaintiff contends that “[b]y using Sexual Misconduct in one area of the

Policy and then using Sexual Molestation in another area of the Policy, an uncertainty arises that

causes the Policy to be ambiguous.”




                                                    6
        Plaintiff’s argument fails to recognize that we consider the Policy as a whole to determine

whether it is clear and unambiguous. Todd, 223 S.W.3d at 163 (citing In re Estate of Carroll, 857

S.W.2d 848, 852 (Mo. App. W.D. 1993)). It is clear, when reading the Policy in its entirety, that

“Sexual Misconduct” is, in fact, an “Occurrence” in scenarios where the District is held vicariously

liable for the actions of its employees, as was the case in Todd, but is not an “Occurrence” when an

action is brought against the intentional actor.              Accordingly, when the Policy listed “Sexual

Misconduct” on the summary page, it did not create an ambiguity but rather summarized the coverage

provided under the Policy. As stated in Todd, “the use of definitions and exclusions is not necessarily

contradictory or inconsistent.”        Id. While the Policy’s summary page refers broadly to “Sexual

Misconduct,” it is clear that intentional sexual assault is not covered under the definitions and

exclusions. Sexual Molestation cannot be, by its nature, an “Occurrence” under the policy because it is

not “an accident.” See Todd, 223 S.W.3d at 163. Furthermore, Hungerford’s actions are clearly

excluded under Sections 19(o) and 19(p), specifically Section 19(p) which excludes liability for any

person “who knowingly committed . . . Sexual Molestation.” Through the definitions and exclusions,

MUSIC has limited its liability in that the Policy does provide coverage for the District’s vicarious

liability for the acts of its employees, but does not cover an individual’s liability for “Sexual

Molestation.”3

                                                    Conclusion

        Given the foregoing, we conclude that the language of the Policy is unambiguous, and,

therefore, the Policy must be enforced as written. Todd, 223 S.W.3d at 160. Because Hungerford’s

sexual molestation of Plaintiff was intentional, it was not an “Occurrence” under the terms of the

Policy. Furthermore, Hungerford’s actions were explicitly excluded from coverage. Therefore, the


3
 Because our conclusion that Hungerford’s actions were not an “Occurrence” under the Policy is dispositive, we need not
consider whether Hungerford was a “Covered Person.” We also decline to address Respondent’s public policy argument.


                                                          7
trial court did not err in granting MUSIC’s motion for summary judgment, and the judgment of the

trial court is affirmed.

                                         _______________________________
                                         Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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