{ "id": 11466706, "name": "CITY OF GREENVILLE and NATIONAL CASUALTY COMPANY, Plaintiffs-Appellants v. CONNIE LORRAINE SMITH HAYWOOD, Defendant-Appellee and DONALD WADE FOSTER, Defendant", "name_abbreviation": "City of Greenville v. Haywood", "decision_date": "1998-07-21", "docket_number": "No. COA97-646", "first_page": "271", "last_page": "279", "citations": [ { "type": "official", "cite": "130 N.C. App. 271" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "814 P.2d 1341", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "pin_cites": [ { "parenthetical": "holding that a police officer was \"acting within the scope of his employment\" when he raped a motorist" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "466 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 852338 ], "year": 1995, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ga-app/219/0516-01" ] }, { "cite": "641 So.2d 766", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7461284 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/so2d/641/0766-01" ] }, { "cite": "782 F. Supp. 110", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3748829 ], "year": 1992, "pin_cites": [ { "page": "113", "parenthetical": "holding that a policy providing coverage for \"personal injury\" including false arrest, malicious prosecution, and assault and battery, but excluding intentional and expected personal injury, to be \"complete nonsense\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/782/0110-01" ] }, { "cite": "403 P.2d 400", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "192 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565633, 8565602, 8565539, 8565699, 8565561 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0425-04", "/nc/282/0425-03", "/nc/282/0425-01", "/nc/282/0425-05", "/nc/282/0425-02" ] }, { "cite": "192 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549827 ], "year": 1972, "pin_cites": [ { "page": "198-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0194-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "69" }, { "page": "69" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "365 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "discussing aggravated nature of assault with deadly weapon" } ], "opinion_index": 0 }, { "cite": "321 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572052 ], "year": 1988, "pin_cites": [ { "parenthetical": "discussing aggravated nature of assault with deadly weapon" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0676-01" ] }, { "cite": "185 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "discussing the aggravated nature of felonious assault" } ], "opinion_index": 0 }, { "cite": "279 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571881 ], "year": 1971, "pin_cites": [ { "parenthetical": "discussing the aggravated nature of felonious assault" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0621-01" ] }, { "cite": "341 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "discussing assault on a female and attempted rape" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 54", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521793 ], "year": 1986, "pin_cites": [ { "parenthetical": "discussing assault on a female and attempted rape" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0054-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "opinion_index": 0 }, { "cite": "154 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "parenthetical": "defining criminal \"assault and battery,\" which violates now N.C. Gen. Stat. \u00a7 14-33 (Cum. Supp. 1997)" } ], "opinion_index": 0 }, { "cite": "270 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568523 ], "year": 1967, "pin_cites": [ { "parenthetical": "defining criminal \"assault and battery,\" which violates now N.C. Gen. Stat. \u00a7 14-33 (Cum. Supp. 1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0416-01" ] }, { "cite": "191 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548855 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0088-01" ] }, { "cite": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "908" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "650" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "448 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551555, 2551689, 2552697, 2552187, 2550815 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0694-01", "/nc/337/0694-05", "/nc/337/0694-02", "/nc/337/0694-04", "/nc/337/0694-03" ] }, { "cite": "444 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "492" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127010 ], "year": 1994, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0283-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1970, "pin_cites": [ { "page": "522" }, { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "354" }, { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "426 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "453", "parenthetical": "quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)" }, { "page": "453" }, { "page": "453" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524720 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "156", "parenthetical": "quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)" }, { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0152-01" ] }, { "cite": "152 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563605 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0341-01" ] }, { "cite": "352 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "880", "parenthetical": "citing Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 152 S.E.2d 436 (1967)" }, { "page": "881" }, { "parenthetical": "holding that a policy providing coverage for negligently inflicted bodily injury, but excluding coverage for claims arising out of any criminal act, to be fatally ambiguous" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168637 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "430", "parenthetical": "citing Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 152 S.E.2d 436 (1967)" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0427-01" ] } ], "analysis": { "cardinality": 785, "char_count": 18518, "ocr_confidence": 0.776, "pagerank": { "raw": 1.55788648994457e-07, "percentile": 0.676409705739601 }, "sha256": "5dc66cb254fc34bcf4b38a26dd55618fb0292f210f7367f4c0be2007462fc551", "simhash": "1:1df455cae437981c", "word_count": 2941 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and McGEE concur." ], "parties": [ "CITY OF GREENVILLE and NATIONAL CASUALTY COMPANY, Plaintiffs-Appellants v. CONNIE LORRAINE SMITH HAYWOOD, Defendant-Appellee and DONALD WADE FOSTER, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nThis declaratory judgment action arises out of a sexual assault upon defendant Connie Lorraine Smith Haywood by an employee of plaintiff City of Greenville, North Carolina (hereinafter \u201cCity\u201d)- On 29 August 1993, Ms. Haywood was sexually assaulted when defendant Donald Wade Foster, a City police officer, was dispatched to her apartment to investigate a break-in. After conducting a partial investigation of the break-in, defendant Foster sodomized Ms. Haywood. Foster was subsequently found guilty of second degree sexual offense in violation of section 14-27.5(a) of the North Carolina General Statutes, and is presently incarcerated.\nIn August 1994, Ms. Haywood initiated a personal injury action (94CVS8309) against Foster for injuries sustained during the 29 August 1993 sexual assault. The City is not a party to Ms. Haywood\u2019s action against Foster. Further, default judgment has been entered against Foster in that action.\nIn November 1995, plaintiffs City and National Casualty Company (hereinafter \u201cNational\u201d) instituted this declaratory judgment action and, subsequently, moved for summary judgment, denying that National provided coverage for the sexual assault of Ms. Haywood and that it had a duty to defend Foster in Ms. Haywood\u2019s civil action. Notably, default judgment was also entered against Foster in the instant case. Ms. Haywood filed a \u201cresponse\u201d to plaintiffs\u2019 complaint, and thereafter, a cross-motion for summary judgment. Both parties\u2019 motions were heard by Judge W. Russell Duke, Jr. during the 7 April 1997 civil session of Pitt County Superior Court. By judgment entered 10 April 1997, Judge Duke granted Ms. Haywood\u2019s motion for summary judgment and denied plaintiffs\u2019 motion. Plaintiffs appeal.\nPlaintiffs bring forth but one assignment of error on appeal, by which they argue that the trial court erred in holding that National\u2019s insurance policy provides coverage for sodomy. For the reasons discussed herein, we conclude that there are no genuine issues of fact remaining for trial in this matter, and accordingly, this case may be appropriately decided by summary judgment. Further, we conclude that National\u2019s policy provides coverage for Foster\u2019s 29 August 1993 sexual assault of Ms. Haywood, and accordingly, affirm the entry of summary judgment for Ms. Haywood.\nIn September 1992, the City purchased an insurance policy from National. This policy, which was in effect from 1 October 1992 through 1 October 1993, provided as follows:\nThe Company [(National)] will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as damages because of WRONGFUL ACT(S) which result in:\nA) PERSONAL INJURY\nB) BODILY INJURY\nC) PROPERTY DAMAGE\ncaused by an OCCURRENCE and arising out of the performance of the INSURED\u2019S duties to provide law enforcement and/or other departmentally approved activities, as declared in the Application....\n\u201cInsured\u201d is defined in the policy to \u201cmean[] the NAMED INSURED [i.e., plaintiff City] and all full or part-time and all auxiliary or volunteer law enforcement officers of the NAMED INSURED.\u201d In addition, the term \u201coccurrence\u201d is defined as \u201can event, including continuous or repeated exposure to conditions, which results in PERSONAL INJURY, BODILY INJURY or PROPERTY DAMAGE sustained, during the policy period, by any person or organization and arising out of the INSURED\u2019S law enforcement duties.\u201d Finally, the policy\u2019s definition of \u201cpersonal injury\u201d includes assault and battery. However, the policy expressly excludes coverage for \u201cdamages arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any INSURED [.]\u201d\nIn deciding whether these above-listed provisions of National\u2019s policy afford coverage for Ms. Haywood\u2019s 29 August 1993 sexual assault, we are guided by well-established rules of insurance policy construction. First, \u201can insurance policy is a contract between the parties which must be construed and enforced according to its terms.\u201d Graham v. James F. Jackson Assoc. Inc., 84 N.C. App. 427, 430, 352 S.E.2d 878, 880 (1987) (citing Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 152 S.E.2d 436 (1967)). The court is obliged to use the definitions supplied in the policy to determine the meaning of words contained in that policy. Durham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C. App. 152, 156, 426 S.E.2d 451, 453 (1993) (quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)). \u201cIn the absence of such definition[s], nontechnical words are to be given a meaning consistent with the sense in which they are used in ordinary speech [.]\u201d Id. (quoting Wachovia Bank & Trust Co., 276 N.C. at 354, 172 S.E.2d at 522).\n\u201cAn ambiguity exists when the language used in the policy is susceptible to different, and perhaps conflicting, interpretations.\u201d McLeod v. Nationwide Mutual Ins. Co., 115 N.C. App. 283, 290, 444 S.E.2d 487, 492, disc. review denied, 337 N.C. 694, 448 S.E.2d 528 (1994). Any ambiguity must be strictly construed in favor of the insured. Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981). \u201c \u2018Exclusions from and exceptions to undertakings by the company are not favored, and are to be strictly construed to provide the coverage which would otherwise be afforded by the policy.\u2019 \u201d Durham City Bd. of Education, 109 N.C. App. at 156, 426 S.E.2d at 453 (quoting Maddox, 303 N.C. at 650, 280 S.E.2d at 908).\nIt is uncontroverted that Foster is an \u201cinsured\u201d within the provision of the National Casualty policy. However, plaintiffs contend that the 29 August 1993 sexual assault on Ms. Haywood does not constitute an \u201coccurrence\u201d within the meaning of National\u2019s policy.\nFirst, plaintiffs argue that sodomy is not a personal injury as defined by the subject insurance policy. Ms. Haywood\u2019s complaint in her personal injury action alleges that Foster sodomized her, and that he was subsequently tried and found guilty of a second degree sexual offense in violation of section 14-27.5 of the General Statutes. While plaintiffs maintain otherwise, sodomy (a second degree sexual offense) does constitute a \u201cpersonal injury\u201d within the meaning of National\u2019s policy.\nThere may be both a civil and criminal action filed against one who commits an assault and battery. A \u201cbattery\u201d is the offensive touching of the person of another without his/her consent, while an \u201cassault\u201d occurs when a person is put in apprehension of harmful or offensive contact, without any actual contact. Ormond v. Crampton, 16 N.C. App. 88, 191 S.E.2d 405 (1972); see also State v. Britt, 270 N.C. 416, 154 S.E.2d 519 (1967) (defining criminal \u201cassault and battery,\u201d which violates now N.C. Gen. Stat. \u00a7 14-33 (Cum. Supp. 1997)). It then necessarily follows that sodomy is but an extremely aggravated form of \u201cassault and battery,\u201d which is defined to be a \u201cpersonal injury\u201d in National\u2019s policy. See State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986) (discussing assault on a female and attempted rape); State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971) (discussing the aggravated nature of felonious assault); State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988) (discussing aggravated nature of assault with deadly weapon). The fact that Foster was convicted of a second degree sexual offense, and not an offense specifically denominated an \u201cassault and battery,\u201d and that assault and battery is not a lesser included offense of sodomy, i.e., second degree sexual offense, is not determinative in this case. Therefore, this argument fails.\nPlaintiffs next contend that Ms. Haywood\u2019s sexual assault did not \u201carise out of the performance of the INSURED\u2019S law enforcement duties.\u201d Significantly, plaintiffs use the phrases \u201carise out of\u2019 and \u201cin the scope of\u2019 interchangeably. The two phrases are, however, quite distinct.\nWhile policy provisions excluding coverage are strictly construed in favor of the insured, those provisions which extend coverage \u201cmust be construed liberally so as to provide coverage, whenever possible by reasonable construction.\u201d State Capital Insurance Co. v. Nationwide Mutual Insurance Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986). Because the policy does not define \u201carising out of,\u201d we must apply the ordinary meaning of this phrase. See Durham City Bd. of Education, 109 N.C. App. at 156, 426 S.E.2d at 453 (quoting Wachovia Bank & Trust Co., 276 N.C. at 354, 172 S.E.2d at 522). In State Capital Ins., the North Carolina Supreme Court interpreted the meaning of the term \u201carising out of,\u201d as used in a compulsory insurance statute and as applied to an automobile insurance policy and applied a liberal construction. 318 N.C. 534, 350 S.E.2d 66. Therein, the Supreme Court noted:\nThe words \u201carising out of\u201d are not words of narrow and specific limitation but are broad, general, and comprehensive terms affecting broad coverage. They are intended to, and do, afford protection to the insured against liability imposed upon him for all damages caused by acts done in connection with or arising out of such use. They are words of much broader significance than \u201ccaused by.\u201d They are ordinarily understood to mean ... \u201cincident to,\u201d or \u201chaving connection with\u201d the use of the automobile.\nId. at 539, 350 S.E.2d at 69 (quoting Fidelity & Casualty Co. of N.Y. v. N.C. Farm Bureau Mutual Insurance Co., 16 N.C. App. 194, 198-99, 192 S.E.2d 113, 118, cert. denied, 282 N.C. 425, 192 S.E.2d 840 (1972)).\nPlaintiffs argue for a construction of this phrase \u201carising out of\u2019 that is akin to that of \u201cduring and in the course (or scope) of\u2019 phraseology employed in workers\u2019 compensation cases. We find this argument to be unpersuasive. Black\u2019s Law Dictionary provides:\nThe words \u201carising out of employment\u201d refer to the origin of the cause of the injury, while \u201ccourse of employment\u201d refers to the time, place, and circumstances under which the injury occurred. An injury arises \u201cout of\u2019 employment if it arises out of nature, conditions, obligations and incidents of the employment.\nBlack\u2019s Law Dictionary 99 (5th ed. 1979). Moreover, in Saala v. McFarland, 403 P.2d 400 (Cal. 1965), the California Supreme Court noted that although the two phrases, \u201cscope of employment\u201d and \u201carising out of employment\u201d were often used interchangeably, they are not the same \u2014 \u201cone is narrower than the other: Conduct is within the scope of employment only if the employee is actuated by an intent to serve his employer.\u201d 2 Witkin, Summary of Cal. Law (9th ed. 1987) Workers\u2019 Compensation, \u00a7 63, p. 622 (discussing Saala, 403 P.2d 400).\nThe facts in the case sub judice tend to show that Foster presented himself to Ms. Haywood after being dispatched to her residence to investigate a break-in, during and in the course of his employment with the City of Greenville Police Department. Foster traveled to Ms. Haywood\u2019s apartment in an official police vehicle and was fully attired in an official police uniform, carrying with him a gun, badge, etc. issued by the police department. Because of his status as an investigating police officer, Foster gained access to Ms. Haywood\u2019s apartment. After gaining access to Ms. Haywood\u2019s apartment, Foster and another officer conducted a partial investigation. When, however, the other officer left Ms. Haywood\u2019s apartment, Foster sexually assaulted Ms. Haywood. Foster, at the time of the 29 August 1993 incident, was performing his duties as a police officer and took advantage of his position as an officer to accomplish his own ends \u2014 the sexual assault of Ms. Haywood.\nA liberal construction of National\u2019s policy, and application of the ordinary meaning of the phrase \u201carising out of\u2019 requires a conclusion that Foster\u2019s sexual assault did indeed \u201carise out of the performance of [his] law enforcement duties,\u201d as \u201cbut for\u201d Foster\u2019s position as a City of Greenville police officer, Foster would not have had an opportunity to enter Ms. Haywood\u2019s home, conduct a partial investigation of the reported break-in, and later sexually assault her. The phrase \u201cin the course of employment\u201d requires that an employee be acting in furtherance of his employer\u2019s business. However, the phrase \u201carising out of\u2019 does not pose such a requirement; it only requires a causal nexus between Foster\u2019s law enforcement duties and the resultant unlawful conduct. See State Capital Ins. Co., 318 N.C. at 539, 350 S.E.2d at 69; see also Mary M. v. City of Los Angeles, 814 P.2d 1341 (1991) (holding that a police officer was \u201cacting within the scope of his employment\u201d when he raped a motorist). Finding the requisite connection between Foster\u2019s employment as a police officer and Ms. Haywood\u2019s sexual assault, we must conclude that the assault was an \u201coccurrence\u201d within the meaning of National\u2019s policy.\nIn light of our previous conclusions that sodomy is an assault and battery within the provisions of National\u2019s policy, and that Foster\u2019s sodomy of Ms. Haywood was an \u201coccurrence\u201d within the meaning of that policy, we also conclude that the provisions allowing coverage for an assault and battery, but excluding coverage for \u201cwillful violation of a penal statute\u201d are in conflict \u201cas to make it virtually impossible for either an insured or a beneficiary to determine precisely which perils are covered and which are not.\u201d Graham, 84 N.C. App. at 431, 352 S.E.2d at 881. For example, National\u2019s policy purports to afford coverage for an assault and battery, a criminal act pursuant to section 14-33 of our General Statues, but then purports to exclude coverage for \u201cintentional violation of a penal statute.\u201d Such ambiguity will be strictly construed in favor of providing coverage to the insured. See id. (holding that a policy providing coverage for negligently inflicted bodily injury, but excluding coverage for claims arising out of any criminal act, to be fatally ambiguous); Lincoln Nat. Health and Cas. Ins. Co. v. Brown, 782 F. Supp. 110, 113 (M.D. Ga. 1992) (holding that a policy providing coverage for \u201cpersonal injury\u201d including false arrest, malicious prosecution, and assault and battery, but excluding intentional and expected personal injury, to be \u201ccomplete nonsense\u201d); Titan Indem. Co. v. Riley, 641 So.2d 766 (Ala. 1994) (holding that a policy providing coverage for claims brought under the Federal Civil Rights Act and acts of malicious prosecution, assault and battery, wrongful entry, piracy, and other offenses that require proof of intent, but precluding coverage for intentional acts to be fatally ambiguous); Isdoll v. Scottsdale Ins. Co., 466 S.E.2d 48, 50 (Ga. Ct. App. 1995) (holding that a policy providing coverage for assault and battery and violation of a person\u2019s civil rights pursuant to 42 U.S.C. \u00a7 1981, et seq. or state law, but excluding \u201cdamages arising out of the wilful violation of a penal statute or ordinance committed by or with the knowledge or consent of any INSURED\u201d to be fatally ambiguous), cert. denied, 219 Ga. Ct. App. 912, \u2014 S.E.2d - (1996). We, therefore, further conclude that the policy\u2019s exclusion clause does not operate to preclude coverage for Foster\u2019s 29 August 1993 sexual assault on Ms. Haywood.\nIn light of all of the foregoing, we hold that National\u2019s policy did provide coverage for the 29 August 1993 sexual assault of Ms. Haywood and that National did have a duty to defend Foster in Ms. Haywood\u2019s action against him. Accordingly, we affirm the entry of summary judgment in this matter.\nAffirmed.\nJudges LEWIS and McGEE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Ward and Smith, P.A., by Kenneth R. Wooten and R. Stephen Camp, for plaintiffs-appellants.", "James G. Billings for defendant-appellee Connie Lorraine Smith Haywood." ], "corrections": "", "head_matter": "CITY OF GREENVILLE and NATIONAL CASUALTY COMPANY, Plaintiffs-Appellants v. CONNIE LORRAINE SMITH HAYWOOD, Defendant-Appellee and DONALD WADE FOSTER, Defendant\nNo. COA97-646\n(Filed 21 July 1998)\n1. Insurance\u2014 coverage \u2014 assault by police officer \u2014 sodomy as personal injury\nThe trial court correctly granted summary judgment for defendant in a declaratory judgment action to determine whether the City\u2019s insurance policy provided coverage for a sexual assault committed by a police officer. The policy provided coverage for personal injury, defined to include assault and battery, and the officer was convicted of second-degree sexual offense. Sodomy constitutes a personal injury within the meaning of the policy in that sodomy is but an extremely aggravated form of assault and battery; the fact that the officer was convicted of a second-degree sexual offense and not an offense specifically denominated \u201cassault and battery,\u201d and that assault and battery is not a lesser included offense of sodomy (second-degree sexual offense), is not determinative.\n2. Insurance\u2014 coverage \u2014 sexual assault by police officer\u2014 arising out of performance of duties\nThe trial court correctly granted summary judgment for defendant in a declaratory judgment action to determine whether the City\u2019s insurance policy provided coverage for a sexual assault commited by a police officer where the policy provided coverage for personal injury arising out of the performance of the insured\u2019s duties. Although plaintiffs argue that \u201carising out of\u2019 is akin to \u201cduring and in the course of,\u201d the phrase \u201cin the course of employment\u201d requires that an employee be acting in furtherance of his employer\u2019s business, while \u201carising out of\u2019 requires only a causal nexus between the officer\u2019s law enforement duties and the resultant unlawful conduct. A liberal construction of the policy and application of the ordinary meaning of \u201carising out of\u2019 requires the conclusion that, but for the officer\u2019s position as an officer, he would not have had the opportunity to enter plaintiff\u2019s home, conduct a partial investigation of a reported break-in, and later sexually assault her.\n3. Insurance\u2014 coverage \u2014 sexual assault by police officer\u2014 conflicting provisions\nThe trial court correctly granted summary judgment for defendant in a declaratory judgment action to determine whether the City\u2019s insurance policy provided coverage for a sexual assault commited by a police officer where provisions of the policy allowed coverage for the assault but excluded coverage for \u201cwillful violation of a penal statute.\u201d Such ambiguity will be strictly construed in favor of providing coverage to the insured.\nAppeal by plaintiffs from judgment entered 10 April 1997 by W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 15 January 1998.\nWard and Smith, P.A., by Kenneth R. Wooten and R. Stephen Camp, for plaintiffs-appellants.\nJames G. Billings for defendant-appellee Connie Lorraine Smith Haywood." }, "file_name": "0271-01", "first_page_order": 303, "last_page_order": 311 }