United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
JUDGMENT ON THE PLEADINGS
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the plaintiff's Motion  for Judgment on
the Pleadings, filed pursuant to Fed.R.Civ.P. 12(c). Acadia
Insurance Company requests a declaratory judgment that it
does not owe any duties to the defendants for claims made by
Donna P. Green as guardian ad litem for L.M.S. Green brought
the underlying complaint against Pearl River Community
College in the Circuit Court of Pearl River County after
L.M.S. suffered a sexual assault and rape on the PRCC campus.
Acadia asserts that the policy of insurance it issued
excludes coverage for the injuries alleged by Green. The
issues have been fully briefed. After due consideration of
the parties' submissions and the relevant law, it is the
Court's opinion that the Motion should be granted. Acadia
has shown that the policy of insurance excludes coverage for
the injuries alleged in the underlying action.
Acadia owes no duty to defend or indemnify Pearl River
to the allegations in the underlying lawsuit filed by Green
against Pearl River Community College (Am. Compl. Ex. 4, ECF
No. 15-4), L.M.S. was a 19-year-old student living in a
dormitory on the PRCC Poplarville campus when she was
sexually abused and molested by another PRCC student,
LaDerrick Scott. Green alleges that in 2013, Scott was
recruited by PRCC basketball coaches to play basketball for
PRCC on an athletic scholarship. Scott was admitted to PRCC
despite not being eligible to attend college. Green alleges
that PRCC should have known of Scott's propensity for
violence from his high school records. Further, Scott was
arrested for possession of marijuana twice within six weeks
in the fall of 2014, and tested positive for marijuana use in
the interim. Nevertheless, he suffered no consequences.
alleges that in the early morning hours of February 8, 2015,
Scott was observed by the PRCC women's basketball coach
in the hallway of L.M.S.'s all-woman dormitory. Even
though men were prohibited from being in the dormitory after
ten o'clock p.m., the basketball coach did nothing about
Scott's presence there. Further, PRCC failed to notice
that the doors to the dormitory were not securely fastened or
locked. While he was in the dormitory, Scott entered
L.M.S.'s locked room using an access card he had somehow
obtained. He then “proceeded to terrorize and threaten
Plaintiff's minor and then to forcibly and repeatedly
sexually assault and rape the Plaintiff's minor before
leaving Room 203 with threats of further bodily harm if the
Plaintiff's minor was to follow him.” (Id.
claim against PRCC is for negligence, which she alleges PRCC
committed by, inter alia, failing to keep the campus
and dormitory safe; failing to dismiss Scott from PRCC and
the basketball team after he tested positive for marijuana
use; improperly recruiting Scott; failing to take action when
Scott was observed in the female dorm after hours; failing to
properly secure the premises; and failing to follow its own
safety policies and procedures. (Id. at 12-15).
Green alleges that PRCC's negligence proximately caused
L.M.S. to be sexually assaulted and raped.
“extended a defense under a reservation of all rights
to PRCC, ” (Am. Compl. 3, ECF No. 15), and filed this
lawsuit for declaratory judgment. Acadia now requests a
judgment pursuant to Federal Rule of Civil Procedure 12.
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). “The standard for
dismissal under Rule 12(c) is the same as that for dismissal
for failure to state a claim under Rule 12(b)(6).”
Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435,
439 (5th Cir. 2015) (citation and brackets omitted). The
Court “accept[s] all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff.” Id. “[A] complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and quotation marks omitted). While the Court will
generally not consider matters outside the pleadings in
deciding a 12(b)(6) motion, the Fifth Circuit has stated that
“it is clearly proper in deciding a 12(b)(6) motion to
take judicial notice of matters of public record.”
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th
Cir. 2007); see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). The insurance
policy and underlying complaint at issue here are the subject
of and attached to the Acadia's Amended Complaint.
Accordingly, those documents may be considered in connection
with this Motion.
Duties to Defend and Indemnify
Mississippi law, the determination of whether an insurance
company has a duty to defend depends upon the language of the
policy as compared to the allegations of the complaint in the
underlying action. See U.S. Fid. & Guar. Co. v.
Omnibank, 812 So.2d 196, 200 (Miss. 2002); Delta
Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403
(Miss. 1997). “An insurance company's duty to
defend its insured is triggered when it becomes aware that a
complaint has been filed which contains reasonable, plausible
allegations of conduct covered by the policy. However, no
duty to defend arises when the claims fall outside the
policy's coverage.” Minn. Life Ins. Co. v.
Columbia Cas. Co., 164 So.3d 954, 970 (Miss. 2015)
(quoting Baker Donelson Bearman & Caldwell, P.C. v.
Muirhead, 920 So.2d 440, 451 (Miss. 2006)). An
insurer's “duty to defend is broader than the
insurer's duty to indemnify under its policy of
insurance: the insurer has a duty to defend when there is any
basis for potential liability under the policy.”
W.R. Berkley Corp. v. Rea's Country Lane Constr.,
Inc., 140 So.3d 437, 442 (Miss. Ct. App. 2013) (quoting
Titan Indem. Co. v. Pope, 876 So.2d 1096, 1101
(Miss. 2004)). The insurer has an “absolute duty to
defend a complaint which contains allegations covered by the
language of the policy, ” independent from its duty to
indemnify which is determined once the facts have been
developed to establish whether the conduct of the insured
giving rise to the claim falls under or outside the coverage
afforded by the policy. Moeller v. Am. Guar. & Liab.
Ins. Co., 707 So.2d 1062, 1069 (Miss. 1996).
contends that the Abuse or Molestation Endorsement to the
policy excludes coverage for the plaintiffs' injuries.
The Endorsement modifies the general liability coverage for
“occurrences” and reads:
insurance does not apply to “bodily injury, ”
“property damage” or “personal and