{ "id": 8914843, "name": "CHRISTOPHER YOUNG, Plaintiff v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., CITY OF FAYETTEVILLE, APRIL S. WORTHAM, OPHELIA PECHIE, and SHANNON STECK PEELE, Defendants", "name_abbreviation": "Young v. Great American Insurance Co. of New York", "decision_date": "2004-01-06", "docket_number": "No. COA02-1491", "first_page": "87", "last_page": "93", "citations": [ { "type": "official", "cite": "162 N.C. App. 87" } ], "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": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "426 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "453", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524720 ], "year": 1993, "pin_cites": [ { "page": "156", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0152-01" ] }, { "cite": "502 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466706 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "277-78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0271-01" ] }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "398 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "464", "parenthetical": "where assault by an employee cannot have been in furtherance of employer's business, the assault is not within course and scope of employment" } ], "opinion_index": 1 }, { "cite": "327 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497254 ], "year": 1990, "pin_cites": [ { "page": "594", "parenthetical": "where assault by an employee cannot have been in furtherance of employer's business, the assault is not within course and scope of employment" } ], "opinion_index": 1, "case_paths": [ "/nc/327/0587-01" ] }, { "cite": "347 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "372" } ], "opinion_index": 1 }, { "cite": "317 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771766 ], "year": 1986, "pin_cites": [ { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0623-01" ] }, { "cite": "444 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "467" }, { "page": "468" } ], "opinion_index": 1 }, { "cite": "115 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125796 ], "year": 1994, "pin_cites": [ { "page": "179" } ], "opinion_index": 1, "case_paths": [ "/nc-app/115/0175-01" ] }, { "cite": "502 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "432" } ], "opinion_index": 1 }, { "cite": "130 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466706 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc-app/130/0271-01" ] } ], "analysis": { "cardinality": 688, "char_count": 14420, "ocr_confidence": 0.778, "pagerank": { "raw": 2.2999453290475563e-07, "percentile": 0.7872725398276116 }, "sha256": "877bc24fd8685e39609d8b106ffa277ac5ac5b98ed2b24816900d266de06b1f0", "simhash": "1:9474d1fac55ffc6f", "word_count": 2321 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge HUNTER dissents by separate opinion." ], "parties": [ "CHRISTOPHER YOUNG, Plaintiff v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., CITY OF FAYETTEVILLE, APRIL S. WORTHAM, OPHELIA PECHIE, and SHANNON STECK PEELE, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nPlaintiff originally sued for declaratory judgment to determine rights to insurance coverage for a Fayetteville police officer to defend against suit by victims of sexual assault. Appellants are the female victim defendants; appellee is the defendant insurance company.\nThe appellants assigned error to the order dated 5 August 2002 granting summary judgment to Great American. In their brief the appellants argue that summary judgment was inappropriate for two reasons: first, that Great American was obligated to provide coverage under its Law Enforcement Liability Policy; and,' second, that Great American was obligated by its General Liability Policy.\nSummary judgment is appropriate when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). On appeal, the standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The evidence presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).\nWe turn to the appellants\u2019 first assignment of error in the trial court\u2019s decision to allow Great American to avoid its obligation to provide insurance coverage under its law enforcement liability policy.\nThe case of City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998) controls this case, and after thoroughly considering the contract before us in light of the Haywood decision, we must reverse the trial court\u2019s summary judgment order.\nThe proper construction of insurance contracts is well-settled in our case law:\n\u201cAn insurer\u2019s duty to defend suits against its insured is deter-' mined by the language in the insurance contract. . . .\u201d The terms of an insurance policy govern the scope of its coverage, and \u201cthe intention of the parties controls any interpretation or construction of'the contract....\u201d The court must use the definitions given in the policy to determine the meaning of words contained in the policy. \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\nAny ambiguity in an insurance contract must be resolved in favor of the insured. In addition, in North Carolina, \u201c[exclusions 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.\u201d\nDurham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C. App. 152, 156, 426 S.E.2d 451, 453 (1993) (citations omitted).\nThe Great American policy provided:\nA. Insuring Agreement\nWe will pay those sums that the Insured becomes legally obligated to pay as damages because of \u201cwrongful act(s)\u201d which result in\n1. personal injury,\n2. bodily injury,\n3. property damage,\ncaused by an \u201coccurrence\u201d and arising out of the performance of the Insured\u2019s duties to provide law enforcement activities.\nThe policy identifies \u201call law enforcement officers\u201d as the \u201cInsured.-\u201d In the definitions section, it defines \u201cwrongful acts\u201d as:\nany or all of the following\na. actual or alleged errors,\nb. misstatement or misleading statement;\nc. act or omission, or\nd. negligent act or breach of duty,\nby an Insured while performing law enforcement duties [.]\n\u201cPersonal injury\u201d is defined to include \u201cassault and battery.\u201d An exclusion in the policy states that coverage does not apply to \u201c[d]amages arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any Insured .. . .\u201d\nThe language of the Great American policy is the exact language of the policy in the case of City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998). The facts of that case are also on point. In Haywood, the issue was whether coverage was provided under an insurance contract when the police officer, who was the Insured in question, responded to the victim\u2019s call to investigate a break-in and subsequently, while in her home, sexually assaulted the victim. The Haywood Court concluded that such a case is appropriate for summary judgment, since only issues of law remain, and that the policy did provide coverage, affirming the lower court judgment in that case. The Haywood opinion compels us to reverse the lower court in the case sub judice.\nGreat American argues that no coverage is provided by the Law Enforcement policy because the Insured did not commit the acts \u201cwhile performing law enforcement duties,\u201d and seeks to distinguish the Haywood case on the basis of this language. However, in the language of the policy, as quoted above, the \u201cinsuring agreement\u201d section of the policy defines coverage for \u201cwrongful acts\u201d which are caused by an occurrence and \u201carising out of the performance of the Insured\u2019s duties to provide law enforcement activities.\u201d The language that Great American cites in support of this distinction is found in the section of the policy defining the term \u201cwrongful acts.\u201d As noted above, any ambiguity in an insurance contract must be resolved in favor of the insured. Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981). To that end, if either language would confer coverage in this case we must recognize that language. The Haywood case construed the \u201carising out of\u2019 language in the context of an on-duty police officer\u2019s sexual assault of the victim as follows:\nAfter gaining access to Ms. Haywood\u2019s apartment, Foster [the insured officer] 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.\nCity of Greenville v. Haywood, 130 N.C. App. 271, 277-78, 502 S.E.2d 430, 434 (1998).\nWe likewise conclude that the assaults in the case sub judice were \u201coccurrence [s]\u201d within the meaning of the Great American Law Enforcement policy. While the officer was certainly not performing a service to society in sexually assaulting the victims, \u201cbut for\u201d his position as a police officer he would not have had the authority to detain the women, nor the opportunity to assault them.\nBecause we hold that coverage is provided under the Law Enforcement policy, we do not reach appellants\u2019 second argument pertaining to the General Liability policy.\nReverse and remand.\nJudge TIMMONS-GOODSON concurs.\nJudge HUNTER dissents by separate opinion.", "type": "majority", "author": "ELMORE, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nBecause I do not believe Christopher Young (\u201cplaintiff\u2019) committed these sexual assaults \u201cwhile performing law enforcement duties,\u201d I respectfully dissent.\nAt the outset, I disagree with the majority\u2019s proposition that this case is indistinguishable from City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998). It is the language of the policy in this case that limits the definition of a \u201cwrongful act\u201d to those acts occurring \u201cwhile performing law enforcement duties\u201d that distinguishes this case from Haywood. This language was not at issue in Haywood, since the policy in that case only used the language \u201c \u2018arising out of the INSURED\u2019S law enforcement duties.\u2019 \u201d Id. at 274, 502 S.E.2d at 432. In construing an insurance contract, a court should not rewrite the contract, nor disregard the express language of that contract. N. C. Insurance Guaranty Assn. v. Century Indemnity Co., 115 N.C. App. 175, 179, 444 S.E.2d 464, 467 (1994). \u201c \u2018All parts of a contract are to be given effect if possible. It is presumed that each part of the contract means something.\u2019 \u201d Id. at 180, 444 S.E.2d at 468 (quoting Bolton Corp. v. T.A. Loving Co., 317 N.C. 623, 628, 347 S.E.2d 369, 372 (1986)). The term \u201cwhile\u201d is defined as \u201cduring the time that.\u201d Webster\u2019s New Collegiate Dictionary, 1343 (9th ed. 1991). The term \u201cperform\u201d is defined as \u201ccarry out, do.\u201d Id. at 873. The combination of the terms \u201carising out of the performance of the Insured\u2019s duties to provide law enforcement activities\u201d and \u201cwhile performing law enforcement duties\u201d does not create an ambiguity. Rather the terms should be construed together and the insurance policy should be read to cover acts occurring during the time the officer was carrying out his law enforcement duties and that would not have occurred but for the fact that he was a police officer. The phrase \u201cwhile performing law enforcement duties\u201d requires a contemporaneity between the acts for which coverage is sought and the performance of law enforcement duties. The intent of the policy is clear and unambiguous: it is designed to cover those wrongful acts of police officers committed as the officer is carrying out duties related to law enforcement. A sexual assault is not a law enforcement duty.\nIn this case, plaintiff was not performing law enforcement duties at the same time as he was sexually assaulting the victims. In each instance, plaintiff actually stopped performing law enforcement duties in order to sexually assault the three women. In one instance, plaintiff allegedly ceased an otherwise normal traffic stop and forced the victim behind a building before assaulting her. In a second instance, plaintiff, in the middle of a routine traffic stop, allegedly-pushed the victim to the ground, assaulted her, and subsequently forced her back into her car where he raped her. In the third incident, plaintiff allegedly drove the victim to an abandoned building where he sexually assaulted her.\nAlthough it is true that none Of these assaults would have happened but for the fact plaintiff was a police officer, and thus had authority to stop or detain the victims, plaintiffs actions in forcing the women to commit sexual acts were not part of his law enforcement duties. Even though each case of assault began with a traffic stop or accident investigation, plaintiff at some point in each case stopped carrying out his duties in order to commit the assaults by performing acts so completely remote from law enforcement to constitute a cessation of his job duties, either by taking the women to a place unrelated to his law enforcement duties and by repeatedly physically and sexually assaulting a victim. Therefore, none of the assaults were committed as plaintiff actually carried out any duty of law enforcement. These assaults were not committed while plaintiff was carrying out the public duties of a law enforcement officer, but rather they were committed while he was serving his own personal and reprehensible purposes for which he may be charged criminally and sued in his individual capacity. Thus, I would conclude that there is no coverage for plaintiffs assaults under the law enforcement liability policy.\nFurthermore, although the majority opinion does not reach this issue, I would also conclude that the intentional sexual assaults were not within the scope of plaintiffs employment, and thus, the general liability policy also does not provide coverage for plaintiffs assaults on the three women. See Medlin v. Bass, 327 N.C. 587, 594, 398 S.E.2d 460, 464 (1990) (where assault by an employee cannot have been in furtherance of employer\u2019s business, the assault is not within course and scope of employment). Accordingly, I would affirm the judgment of the trial court.\n. Examples of acts that would be covered under the insurance policy would include using excessive force during an arrest or assaulting a suspect during an interrogation.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "William Pereoy for the plaintiff.", "White & Stradley, L.L.P., by J. David Stradley for the defendant-appellants.", "Cranfill, Sumner & Hartzog, L.L.P, by Susan K. Burkhart for the defendant-appellee, Great American Insurance Company of New York.", "Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Mark Davis for the defendant, City of Fayetteville." ], "corrections": "", "head_matter": "CHRISTOPHER YOUNG, Plaintiff v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., CITY OF FAYETTEVILLE, APRIL S. WORTHAM, OPHELIA PECHIE, and SHANNON STECK PEELE, Defendants\nNo. COA02-1491\n(Filed 6 January 2004)\nInsurance\u2014 law enforcement liability \u2014 occurrences arising from law enforcement\nA law enforcement liability insurance policy provided liability coverage for sexual assaults by a police officer despite language limiting coverage to occurrences arising out of law enforcement activities and a contention that these were not law enforcement activities. The officer would not have had the authority to detain his victims, nor the opportunity to assault them, but for his position as a police officer.\nJudge Hunter dissenting.\nAppeal by defendants April S. Wortham, Ophelia Pechie, and Shannon Steck Peele, from judgment entered 5 August 2002 by Judge James F. Ammons in Cumberland County Superior Court. Heard in the Court of Appeals 27 August 2003.\nWilliam Pereoy for the plaintiff.\nWhite & Stradley, L.L.P., by J. David Stradley for the defendant-appellants.\nCranfill, Sumner & Hartzog, L.L.P, by Susan K. Burkhart for the defendant-appellee, Great American Insurance Company of New York.\nWomble, Carlyle, Sandridge & Rice, P.L.L.C., by Mark Davis for the defendant, City of Fayetteville." }, "file_name": "0087-01", "first_page_order": 115, "last_page_order": 121 }