No Coverage for Rape of an Employee or Mentee Because it is not Within the Scope of Employment

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It’s Not Nice to Rape a Ballet Dancer Under The Defendant’s Tutelage and Control

LC and plaintiff Cosmin Marculetiu were ballet dancers at markedly different points in their respective careers. Marculetiu, then forty-four, had become a dance instructor of international renown. L.C., then twenty-three, had just completed college and hoped to make a career out of being a professional dancer. L.C. took some classes at a dance studio in Burlington operated by Marculetiu’s company, International Ballet Academy of Norwell, Inc. (IBAN), and she appeared in performances of a ballet produced by IBAN. Any professional relationship between L.C. and Marculetiu ended in 2014 after she accused him of raping her during a trip to Romania for an international ballet competition. The following year, L.C. filed a multi-count civil action in Superior Court against Marculetiu and IBAN. Marculetiu denied L.C.’s allegations and counterclaimed for defamation, intentional interference with advantageous relations, and abuse of process. Both L.C.’s tort action (underlying case) and Marculetiu’s counterclaims remain pending.

In Cosmin Marculetiu v. Safety Insurance Company & others, No. 19-P-1407, Appeals Court of Massachusetts (October 2, 2020) insurance for defense and indemnity were presented to the Appeals Court. The appeal before us involves insurance coverage related to the underlying case.  Based principally on the fact that the underlying action involved allegations of rape and other intentional sexual assaults, each insurer filed a motion to dismiss claiming that, as a matter of law, it had no duty to defend or indemnify Marculetiu. The motions were allowed by separate judges, and judgment entered for the defendants.

BACKGROUND

The Claims Set Forth In The Underlying Action

According to the complaint, Marculetiu convinced L.C. to compete in the “World Ballet Competition” to be held in Romania in March of 2014. L.C. alleges that on the plane flight over to the dance competition, she awoke to find Marculetiu groping her with his hands under her shirt and down her pants. According to her, once they were in Romania, Marculetiu entered her hotel room (to which he had his own key), professed his love for her, “then forcibly removed her clothes and pushed her onto the bed, where he sexually assaulted her.” Over the next several days, she alleges, he “repeatedly raped and sexually assaulted her” in her room. The complaint alleges that she was in an especially vulnerable position given that she was traveling alone in a foreign country where she did not speak the native language.

L.C.’s complaint included ten counts brought against Marculetiu. Five of the counts allege various forms of sexual assault: rape, assault and battery, indecent assault and battery, assault with intent to rape, and drugging for sexual intercourse.

The transcripts of the depositions of L.C., and of one of her therapists, provide illuminating detail about what she specifically was alleging occurred during the trip to Romania.  The deposition transcripts also suggest that if L.C. acquiesced to any sexual advances that Marculetiu might have made, she did so in the context of a mentor-mentee relationship in which there was a significant imbalance of power.

Relevant Policy Provisions

IBAN purchased a CGL policy from National. The “coverage territory” under the policy is defined to include not only the United States, but “[a]ll other parts of the world if the injury or damage arises out of . . . activities of a person whose home is in [the United States], but is away for a short time on [the insured’s] business . . . .”

IBAN itself is the principal insured under the CGL policy. However, employees of IBAN are also insureds, but only for acts within the scope of their employment by IBAN or while performing duties related to the conduct of IBAN’s business. Similarly, IBAN’s executive officers’ and directors are insureds, but only with respect to their duties as IBAN’s officers or directors.

In addition to the individual exclusions that apply to each type of coverage, the CGL policy included a separate endorsement entitled “SEXUAL ABUSE EXCLUSION – ILLINOIS.” The body of the exclusion states that coverage “does not apply to any claim, ‘suit’ or cause of action, including defense of same, for any person who actively participates in any act of sexual misconduct, sexual molestation or physical or mental abuse of any person.” It further states that “[t]his exclusion shall apply regardless of the legal form any claim may take by way of negligence, breach of contract or assault.”

Marculetiu and his wife purchased a homeowner’s policy from Safety in connection with their home in Quincy. Various exclusions generally apply to Coverage E. One is for bodily injury that is expected or intended by the insured. Another – known commonly as the “business pursuits exclusion” – is for injury “[a]rising out of or in connection with a ‘business’ engaged in by an ‘insured.'” A third is for injury “[a]rising out of sexual molestation, corporal punishment or physical or mental abuse.”

DISCUSSION

Marculetiu alleges that each insurer owed him both a duty to defend and a duty to indemnify. The duty to defend is determined based on the facts alleged in the underlying complaint, and on facts known or readily knowable by the insurer that may aid in its interpretation of the allegations in the complaint.

Marculetiu makes no claim that either insurer has a duty to defend or indemnify him with respect to L.C.’s core allegations that he raped her or otherwise committed intentional sexual assaults against her. Instead, he argues that the insurers’ duties are triggered by three other claims that L.C. brought: breach of fiduciary duty, false imprisonment, and negligence.

The commission of an intentional tort does not necessarily preclude the resulting injuries from being considered “accidental” for purposes of assessing insurance coverage.

She need claim only that Marculetiu abused his position of power as her employer or teacher by making unwanted sexual advances toward her. She need not prove that Marculetiu’s actions amounted to rape or other forms of intentional sexual assault. While it may well be that someone found liable for sexual harassment specifically intended to injure the person being harassed, a specific intent to injure must not be inferred as a matter of law. With regard to the specific allegations that L.C. has raised, it is possible to imagine a jury concluding that Marculetiu committed actionable sexual harassment without possessing a specific intent to cause her injury.

In sum, the Court of Appeal was unpersuaded by National’s argument that the nature of L.C.’s breach of fiduciary duty claim precluded coverage as a matter of law. For the same reason, National cannot show that the harm from such a claim necessarily was excluded as “expected or intended” by Marculetiu. However, it was IBAN, not Marculetiu, that purchased the CGL policy, and under the policy’s terms, Marculetiu was entitled to coverage as an insured only to a limited extent.

As an employee of IBAN, his coverage extends only to those actions that are “within the scope of his employment by IBAN or taken while performing duties related to the conduct of IBAN’s business. The question is whether his alleged conduct during the trip to Romania could be said to fall within that category.

L.C. alleges Marculetiu’s actions cannot fairly be characterized as serving any of IBAN’s interests. Rather, those alleged actions self-evidently served only Marculetiu’s interests. Accordingly, these actions cannot reasonably be said to fall within Marculetiu’s scope of employment, and he therefore cannot claim status as an insured party on that basis.

The coverage that Marculetiu seeks from the homeowners policy is subject to a business pursuits exclusion under which Safety bears no liability for “[i]njury arising out of or in connection with a ‘business’ engaged in by the ‘insured.'” Moreover, it bears remembering that the manifest design of homeowners’ insurance is to protect homeowners from risks associated with the home and activities related to the home.

It is uncontested that any injuries suffered by L.C. from Marculetiu’s alleged acts occurred out of the country on a work-related trip. Under these circumstances, Safety is correct that regardless of whether Marculetiu’s alleged actions were motivated by personal or business reasons, any resulting injuries arose out of or in connection with Marculetiu’s business pursuits, and thus are excluded. With regard to any sexual harassment claims, the court concluded that any liability that Marculetiu faces depends on his having been L.C.’s employer or teacher.

Because neither insurer had a duty to defend Marculetiu with respect to the underlying action and the judgment was affirmed.

ZALMA OPINION

Claims of sexual harassment, rape, and assault – all intentional torts – are difficult for a court to resolve issues of insurance coverage when some intentional torts are covered by a Personal Injury coverage agreement. In this case, although clearly excluded by the intentional act and unwanted sexual events exclusions, the court decided that since his conduct was not in the course and scope of his employment there was no coverage under the CGL and since his actions had occurred out of the country and part of an excluded work trip and were excluded by the business pursuits of the homeowners policy. Three judges viewing the same set of fact reached the same result for different reasons and each concluded there was no duty to defend or indemnify.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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