Insurer doesn't have to indemnify school bus company in sexual assault case
An insurer claimed there was only an incidental connection between the victim's injuries and the bus she was in.
The Third Circuit has granted an insurer’s appeal that the company does not have to indemnify a school bus company and school district after finding that a sexual assault that occurred on a bus was not the result of the bus’ use as a vehicle.
Brimar Transit provided transportation services for the Pittsburgh Public School District. Brimar and the school district collaborated to create a specific plan to keep K.M., a female student with special needs, physically distant from a male student, also with special needs, who had sexually assaulted K.M. multiple times. K.M.’s regular bus driver enforced this plan, as did the first substitute driver who filled in while the regular driver was on leave.
On the day in question, a second substitute driver, who either did not know of or disregarded the plan, sat K.M. next to the male student from whom she should have been separated. During the ride, the male student was able to pin K.M. to the seat and sexually assault her. According to the opinion, the bus driver neither intervened nor acknowledged the incident, despite the shouts from other students.
K.M. and her mother sued both bus company and the school district. The complaint alleged negligence against the school system for failing to ensure K.M.’s safety, as well as failure to train and supervise the second driver against Brimar.
National Liability and Fire Insurance Company (National) had issued an insurance policy to Brimar. National defended Brimar in state court after reserving rights, but did not defend the school district. Later, in the district court, National sought a declaratory judgment that it didn’t owe defense to Brimar because K.M.’s injuries did not result from the bus’ use as a vehicle, and, at any rate, coverage was precluded by the policy’s abuse and molestation exclusion. National claimed it owed neither defense nor indemnity to the school district because the district was not an insured.
The district court looked at Lebanon Coach Co. v. Carolina Cas. Ins. Co., 675 A.2d 279 (Pa. Super. Ct. 1996), which had found school bus drivers owed “the highest duty to maintain their passengers’ safety” while loading or unloading students and while the bus was en route from one destination to another. The district court granted summary judgment to Brimar and the school district for coverage of K.M.’s suit. National appealed.
In the Third Circuit, National claimed Pennsylvania law required a causal connection between the plaintiff’s injuries and the vehicle’s use as a vehicle, and that no such connection existed if there were intervening actions not attributable to the vehicle’s use as a vehicle that caused the injury. In the Lebanon Coach case used by the district court, a girl was trying to cross the road from her bus to her house when a passing car pinned her to the bus. Unlike the plaintiff in Lebanon Coach, K.M.’s injuries were the result of the male student’s sexual assault, which was only incidental to the bus’ use as a vehicle.
The court agreed with National and pointed to another case from Pennsylvania state court, Roach v. Port Auth. of Allegheny Cnty., 550 A.2d 1346 (Pa. Super. Ct. 1988), where the plaintiff had been injured while aboard a public bus when an argument between other passengers devolved into a fistfight. The court in Roach found that the plaintiff could have been caught in a fistfight anywhere besides the bus and received the same injuries. It just so happened that the plaintiff was on the city bus when she was injured.
The judges of the Third Circuit said the district court’s interpretation of Lebanon Coach had been overly broad because the site of the plaintiff’s injuries was directly linked to where the bus driver had stopped the bus for the plaintiff to cross the road. K.M.’s injuries in the underlying case were more similar to those of the plaintiff in Roach because the assault just so happened to take place aboard a school bus and were not related to the bus’ use as a vehicle.
Given the weak connection between K.M.’s injuries and the bus’ use as a vehicle, the Third Circuit reversed the district court decision and sent the case back for further proceedings.
Editor’s note: Just because an injury occurs in a vehicle does not mean the injury itself is the result of the vehicle’s use as a vehicle. In this case, K.M. was injured while the school bus was being used as a school bus. However, the male student’s sexual assault of K.M. was an intervening cause of injury separate from the bus’ use as a vehicle. The school bus was merely the location of the injury, which was supported by the fact that the male student had sexually assaulted K.M. on prior occasions at other locations.
The case is National Liability & Fire Ins. Co. v. Brimar Transit, Inc., 2023 U.S. App. LEXIS 25158 (3rd Cir. 2023). Please note that this case is unpublished and therefore has limited precedential value.
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