A federal judge from the Western District of Washington has granted an insurance company’s motion for summary judgement in a case in which a high school basketball coach, accused of sexual abuse of minors, sought to have the insurance company indemnify him, or at least have the court delay the decision about the insurance company’s obligation until later in the case.
The plaintiff in the case is American Strategic Insurance Corporation (ASI). The coach, who is also facing criminal charges, is Jacob Jackson. Jackson was the boys’ basketball coach for Sumner High School, located in Sumner, Washington, from 2016 to September of 2022.
Jackson allegedly became aware of one child’s playing abilities when he was in middle school and began showering him with attention, gifts, and cash. The child further alleges that Jackson contacted him “by company phone, via social media and text message, and that communication eventually led to Jackson sending, and requesting, nude pictures and videos (to include those of masturbation and urination).” The allegations, as detailed in the opinion, became even more sordid. There were also other alleged victims.
There were two insurance policies relevant to the case: the primary policy and umbrella policy.
The primary policy provides insurance for lawsuits brought against an “insured” (Jackson) for damages because of “bodily injury” caused by an “occurrence,” according to the court. An “occurrence” is defined as “an accident.”
Of note, the primary policy contains several exclusions that ASI contends apply. Bodily injury, for example, “arising out of sexual molestation, corporal punishment or physical or mental abuse, [are] excluded from coverage. … This exclusion applies regardless of whether the insured is charged with a crime.” Coverage is also excluded for “personal injury,” under these circumstances, according to the court.
As for the umbrella policy, there are also “relevant” exclusions. For example, the policy excludes “bodily injury, which is expected or intended by an ‘insured’” and “‘bodily injury’ and ‘personal injury’ arisingout of sexual molestation, corporal punishment or mental abuse.” Importantly, the exclusion applies regardless of whether the “insured” is actually charged with or convicted of a crime. It further excludes “‘personal injury’ arising out of broadcasting, communicating, posting, publishing, searching, accessing or telecasting through the internet or intranet. This includes but is not limited to all electronic communications sent via computer, mobile device, telephone, satellite or any other electronic device.”
The court went on to note that the insurance company is seeking a declaration that it has no duty to defend or indemnify Jackson and others for claims asserted against them in civil lawsuits, which allege that Jackson sexually abused and exploited minors.
At the outset, Jackson asked the court to deny the motion since it would impinge upon his Fifth Amendment rights if he responds. He argued that until the criminal case against him is decided, the insurance company’s motion should be delayed.
Jackson’s argument “is unavailing,” wrote the court. “He fails to offer any substantive grounds as to why his testimony is required for him to raise arguments that there is at least potential coverage under the policies.”
The court then turned to Washington state law and how it might impact whether the plaintiff has a duty to defend and indemnify Jackson on the two lawsuits.
First up was whether the insurance company had “a duty to defend.”
“Neither the primary policy nor the umbrellapolicy (which only provides coverage if the primary policy does) could conceivably cover the allegations in the complaints,” wrote the court.
Specifically, none of the allegations in the complaints are for “occurrences.” In fact, “[b]oth complaintsallege a series of intentional acts of childhood sexual abuse by Jackson. … There are no conceivable allegations supporting a theory that there were ‘accidents’ or ‘unintentional acts.’ Allegations of intentional sexual abuse are not accidental; they do not constitute an ‘occurrence’ and so there is no coverage under the policies.” Additionally, the court pointed out that “several exclusions apply.”
Further, “if there is no duty to defend, then there is no duty to indemnify.”
In conclusion, the court decided that “there are no material issues of fact and the Plaintiff is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. Jackson’s claim of possible impingement on his Fifth Amendment rights do not raise a material issue. His arguments are speculative. Jackson fails to make a basic showing that a delay or stay of this motion is required. Given the allegations in the complaints, there is no conceivable coverage under the policies, much less actual coverage. The Plaintiff has no duty to defend or indemnify Jackson for the claims asserted against Jackson” in the relevant complaints.
American Strategic Insurance Corp. v. Jacob Jackson et al.; W. D. Wash.; CASE NO. 3:23-cv-05461-RJB, 2024 U.S. Dist. LEXIS 17172; 1/31/24
