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National Fire and Casualty Co. v. West

February 24, 1997

NATIONAL FIRE AND CASUALTY COMPANY,

PLAINTIFF-APPELLEE,

v.

MARY A. WEST, A MINOR CHILD, BY AND THROUGH HER PARENT AND NEXT FRIEND, RITA NORRIS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.

No. 94 C 1462 John D. Tinder, Judge.

Before HARLINGTON WOOD, JR., RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED OCTOBER 23, 1996

DECIDED FEBRUARY 24, 1997

National Fire & Casualty Company ("National Fire") issued to the Town of Franklin, Indiana ("Franklin") a Local Government General Liability insurance policy. Under the policy, National Fire agreed to defend and indemnify Franklin and its employees for Bodily Injury Liability and Personal Injury Liability, subject to a number of exclusions. Officer James Bradley Waymire, a Franklin police officer, engaged in a course of conduct with Mary Amanda West, a minor, that led to his pleading guilty to five felony counts of child molestation. Ms. West, through her parent, brought a sec. 1983 action against the town and Officer Waymire for these incidents. National Fire then instituted this diversity action seeking a declaratory judgment that it need not indemnify or defend Officer Waymire for his actions because they fall within the policy's exclusions. For the reasons that follow, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts

1.

Officer Waymire was hired by the Franklin Police Department on April 10, 1991. Over the course of eighteen months, Officer Waymire engaged in criminal conduct with respect to Ms. West that led to the officer's pleading guilty to five counts of felony child molestation. Several, although not all, of these events took place during the policy period. *fn1

On September 1, 1994, Ms. West filed suit under 42 U.S.C. sec. 1983 in district court, alleging that Officer Waymire, the Town of Franklin and the Franklin Police Department had violated her constitutional and civil rights. She also alleged that Franklin and the Franklin Police Department negligently had hired and employed Officer Waymire and that Officer Waymire intentionally had committed the torts of assault and battery, invasion of privacy, and intentional infliction of emotional distress, for which Franklin was also liable under the theory of respondeat superior.

2.

Franklin purchased from National Fire a Local Government General Liability Policy ("LGGL Policy") under which National Fire agreed to provide coverage for Franklin and its employees *fn2 for Bodily Injury Liability and Personal Injury Liability. The policy at issue covered the period from October 1, 1992 to October 1, 1993 and provided coverage subject to a number of exclusions. Coverage A (Bodily Injury Liability) provides:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

A. Bodily Injury, including liability for bodily injury assumed by the insured under any defined contract, . . . to which this insurance applies, caused by an occurrence which ...


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