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Duty to Defend in Missouri Regarding Negligent Supervision Allegations
In American Family Mutual Insurance Company v. Parnell, et al., the insurer appealed the Circuit Court's grant of summary judgment in favor of M.S., a minor, by and through her next friend and mother.  The trial court determined that two homeowner insurance policies issued to the Parnells provided coverage for M.S.'s claim of negligent supervision against the Parnells.  On appeal, the insurer contended that the two exclusions applied to bar coverage and the concurrent proximate cause rule was not applicable.
The Parnells operated a daycare business in their home and M.S. attended that daycare during the summers of 2009 and 2010.  Beginning in 2009, M.S., who was seven years old, was allegedly subjected to intentional, unwanted sexual contact by the Parnells' eleven year old son on multiple occasions.  The contact continued during the summer of 2010.  M.S., by and through her next friend and mother, filed suit against the Parnells for negligent supervision, asserting that the Parnells had the duty to use ordinary care to protect her against unreasonable risks of harm.  Further allegations included that the Parnells breached this duty by not supervising M.S. at the daycare, and their breach was the proximate cause of her injuries, which included economic and non-economic damages, emotional distress, depression, anxiety and post-traumatic stress disorder.
The Parnells requested that their insurer provide a defense whereupon the insurance company filed a Petition for Declaratory Judgment asking that the court declare that the two policies did not provide coverage based on policy exclusions for intentional injury and abuse.  On appeal, the Western District, Missouri Court of Appeals only addressed whether the concurrent proximate cause rule applied to afford coverage, despite the intentional injury and abuse exclusions since the Court found this issue to be dispositive.  The court noted that the concurrent proximate cause rule states that "an insurance policy will be construed to provide coverage where an injury was proximately caused by two events - even if one of these events was subject to an exclusion, if the differing allegations of causation are independent and distinct.  For the rule to apply, the injury must have resulted from a covered cause that is truly independent and distinct from the excluded cause."  To determine whether the causes are independent and distinct, the court examines whether the covered cause and excluded cause depend upon each other to establish the necessary elements of each claim.  If the excluded cause is merely incidental to the covered cause or stated differently, if the covered cause could occur without the excluded cause, then the two causes are independent and distinct and the concurrent proximate cause rule applies.
The distinction between an excluded cause merely incidental to the negligence claim and an excluded cause essential to the negligence claim is readily apparent in claims involving the negligent supervision of a minor.  Negligent supervision of a minor triggers a burden of proof on plaintiff that (1) defendant had a legal duty to use ordinary care to protect the minor against unreasonable risks of harm; (2) the defendant breached that duty; (3) proximate cause between the breach and the resulting injury; and (4) actual damages.  The Appellate Court determined that M.S.'s harm caused by the alleged intentional unwanted sexual contact by the Parnells' son is only incidental to the claim.  The claim for negligent supervision of a minor is unrelated to and can occur without intentional injury or sexual abuse.
The court determined that Parnells' failure to properly supervise M.S. put her at risk for any number of harms, either self-inflicted or inflicted by others.  Therefore, M.S.'s claim of negligent supervision is a separate non-excluded cause of her injuries apart from the intentional sexual abuse.  The Court of Appeals therefore affirmed the Circuit Court's finding that the insurer is obligated to defend and indemnify the Parnells in M.S.'s lawsuit against them.
If you have any questions regarding this case or any other insurance law issues, please contact one of our Insurance Law attorneys at 816.931.2700.
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Kent M. Bevan

Copyright © 2015 Dysart Taylor Cotter McMonigle & Montemore, P.C., All rights reserved.

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