Winnacunnet & SAU 21 v. N a t '1 Union CV-93-627-B 11/03/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Winnacunnet Cooperative School District

v. Civil No. 93-627-B

National Union Fire Insurance Company

and

School Administrative Unit #21

v. Civil No. 93-671-B

National Union Fire Insurance Company

O R D E R

The parties have filed supplemental materials in response to

my order of September 25, 1995, to address the question raised in

the plaintiffs' motion for reconsideration concerning the source

of the plaintiffs' injuries in the underlying lawsuits. Having

considered all of the materials, I deny the plaintiffs' motions

for reconsideration for the following reasons.

I. BACKGROUND

In my order dated August 29, 1995, I granted defendant's.

National Union Fire Insurance Company ("National"), motions for

summary judgment denying the plaintiffs', Winnacunnet Cooperative School District ("Winnacunnet") and School Administrative Unit

#21 ("Unit #21"), petitions for declaratory judgment seeking

insurance coverage. National asserted that policy exclusions for

"claims arising out of" either assault or battery or bodily

injury or death barred coverage for the claims made against

Winnacunnet and Unit #21. I looked beyond the pleadings in the

underlying suits because the facts alleged did not clearly

preclude coverage and the circumstances1 suggested the need "to

avoid permitting the pleading strategies, whims, and vagaries of

third party claimants to control the rights of parties to an

insurance contract." M. Mooney Corp. v. United States Fidelity &

Guar. C o .,

(1992). Relying on counsels'

representations made during a telephone conference that the

conspiracy and murder of Gregory Smart were the source of the

plaintiffs' alleged injuries, I concluded that the source of the

underlying claims was undisputed. I followed the majority rule,

explained in my order, that a cause of action is deemed to arise

out of an assault or the death of another person if that is the

1 The two underlying suits, one brought by Cecelia Pierce against SAU #21, and the other brought by Vance Lattime, William Flynn, Patrick Randall, and their parents against Winnacunnet, allege negligence in hiring, training, and supervising Pamela Smart. Pierce, Flynn, Randall, and Lattime were students at Winnacunnet High School who became involved with Pamela Smart and the conspiracy and murder of her husband, Gregory Smart.

2 source of injury claimed in the suit, even if the insured

negligently allowed the assault or death to occur. I then

concluded that the claims were barred by the policy exclusions

because the conspiracy and murder of Gregory Smart were the

undisputed sources of the injuries claimed, and granted summary

judgment in National's favor.

Winnacunnet and Unit #21 moved for reconsideration. In

their motions, they disavowed the representations made during the

telephone conference that the source of the underlying injuries

was the conspiracy and murder of Gregory Smart. Because the

telephone conference was not recorded and the parties' agreement

on the issue was not in writing, I granted the parties an

opportunity to submit additional materials on the issue of

whether the conspiracy and murder of Gregory Smart was the source

of the underlying plaintiffs' alleged injuries.

II. DISCUSSION

National, as the insurer in a declaratory judgment action

for disputed coverage, bears the burden of proving noncoverage.

-a (Supp. 1994). To win summary

judgment in its favor. National must produce enough supportive

evidence to entitle it to judgment as a matter of law (i.e., no

reasonable jury could find otherwise even when construing the

3 evidence in the light most favorable to Winnacunnet and Unit

#21), and Winnacunnet and Unit #21 must fail to produce

sufficient responsive evidence to raise a genuine dispute as to

any material fact. Fitzpatrick v. City of Atlanta,

(11th Cir. 1993); Murphy v. Franklin Pierce Law Center,

(D.N.H. 1994) . Having decided the legal

guestions pertinent to the interpretation and application of the

relevant policy exclusions and finding no error, I decline to

reconsider my previous legal analysis. Therefore, in ruling on

the motions to reconsider, I must determine whether the

undisputed material facts entitle National Union to summary

judgment under the applicable legal standard.

A. Cecelia Pierce's Suit

In her complaint in the underlying suit, Cecelia Pierce

alleges that Unit #21's negligence caused her "loss of education,

loss of past, present and future earnings, loss of reputation and

standing in the community, and mental anguish." National argues

that all of her alleged injuries arose from the conseguences of

her participation in the conspiracy to kill Gregory Smart. In

support of its argument. National offers excerpts of Pierce's

deposition in which she explained the injuries she claims.

She testified that her loss of education was due to her

absence from school during her junior year to testify at Pamela

4 Smart's murder trial. Pierce described later difficulties

getting into college without the assistance of Winnacunnet High

School. She testified that she lost earnings because she had to

leave her job in order to assist the police in the investigation

of the Smart murder and then to testify at the trial. She also

testified that her involvement in the murder conspiracy, her

failure to reveal the plan before Gregory Smart's death, the

trial, and the resulting publicity caused her to lose friends and

her reputation and standing in the community, all of which

resulted in mental anguish.

In response. Unit #21 discusses Pierce's claims of negligent

hiring, training, and supervision of Pamela Smart, the discovery

conducted, and the probable evidence of negligence to be

presented at trial in the underlying action. Unit #21 includes

copies of the complaint, the notice of claim, Pierce's pretrial

statement, interrogatories from Pierce to Unit #21, Pierce's

answers to Unit #21's interrogatories, and excerpts from Pierce's

depositions to show that Pierce alleges negligence as her cause

of action against Unit #21 and does not assert a claim based on

the conspiracy and murder of Gregory Smart.

Unit #21 points to one of Pierce's answers, which is only

submitted in part, to explain the basis of her claim. Apparently

referring to a previous discussion. Pierce was asked, "Is it

5 these things that went on that you're complaining about in this

lawsuit?" and she responded in part:

It's just everything, it's everything. Mainly, it's that my mother went to the school and she spoke to my principal and she told him that I was spending too much time with Pam and she wanted it ended. And he said that he had noticed and he would do something about it. And he didn't. And if he had, I can't tell you what. I'm not, you know, I can't predict the . . .

While the materials submitted, taken in the light most

favorable to Unit #21, affirm that Pierce alleges negligence in

hiring, training, and supervising Pamela Smart, and in allowing

an improper relationship to develop between Smart and Pierce,

they do not address the guestion of how Unit #21's alleged

negligence caused Pierce's alleged injuries of loss of education,

loss of earnings, loss of reputation and standing in the

community, and mental anguish. There is no dispute that Pierce

claims that Unit #21 was negligent. The material guestion here,

however, is how did the alleged negligence cause Pierce's

inj uries.

National supports its position with the deposition testimony

discussed above showing that Pierce believes her injuries were

caused by the aftermath of her involvement in the murder

conspiracy. Unit #21 has not produced any contradictory

evidence. As a result, based on all the materials submitted,

taken in the light most favorable to Unit #21, no reasonable

6 juror could find that Pierce is seeking to recover for injuries

she suffered other than as a result of her involvement in the

murder conspiracy.

B. Lattime, Flynn, and Randall Suit

In their complaint in the underlying suit, Lattime, Flynn,

and Randall allege the following injuries: emotional distress, mental instability, physical incarceration, impairment of judgment, thereby causing them to suffer criminal responsibilities, incarceration, irreparable harm through loss of liberty, lost earnings, earning capacity, loss of education by and through Defendant, financial loss, separation of Students from their parents and family, loss of consortium by the parents, loss of consortium by the Students, etc.

National points to deposition testimony by the three student

plaintiffs that they would not have brought the underlying law

suit if they had not been involved in the conspiracy and murder

of Gregory Smart. Although National concedes that their

allegations concerning Pamela Smart's relationship with the

students might have caused them injury even if the conspiracy and

murder had never occurred. National argues that the plaintiffs

have not alleged or described injuries on those grounds. Thus,

National contends, the underlying plaintiffs' injuries were

caused solely as a result of their participation in the murder

conspiracy.

7 a. The Randalls' testimony.

Patrick Randall testified that he understood that the harm

alleged in the complaint was that he, Flynn, and Lattime were

unsupervised. He states that he was not suing because he was

arrested or because he is in jail. He also testified, "If I

never got caught for killing Greg Smart, I would have never

brought a lawsuit" and "I still suffered the harm whether I got

caught or whether I got away with it." He says, "If I stayed

away from Pam Smart, ... I would have never suffered anything.

Randall's deposition testimony submitted here, construed in favo

of Winnacunnet's arguments, suggests in part that Randall

believed that he suffered an unspecified injury due to lack of

supervision.2 Randall also states, however, that he would not

have sued but for his involvement in killing Greg Smart.

Therefore, Winnacunnet has not identified any other injury

Randall may have suffered in addition to those associated with

his arrest and incarceration for his role in the killing.

2 While lack of supervision may lead to harm, it is not an injury in and of itself, and the plaintiffs' complaint does not allege lack of supervision as an injury despite Randall's understanding of the suit. Patrick Randall's mother gave the following testimony at her

deposition:

Q. Why is it you are suing the high school? A. Because what happened to my son I don't want to happen to anybody else. Q. And, what happened to your son is his incarceration in the murder of Gregory Smart? A. Right. Q. Now, if Greg Smart hadn't been murdered, would you be suing the school district? A. If he--I guess that means if he hadn't met Pam, in which case, there would be no reason.

Mrs. Randall denied that she was suing the school because of her

son's involvement in the Smart murder explaining essentially that

her suit was based the school's responsibility for allowing the

"situation" to develop with Pam Smart that culminated in the

murder.

b. The Flynns' testimony.

William Flynn testified that the lawsuit was brought because

Winnacunnet was negligent in its supervision of him, his fellow

student plaintiffs and Pam Smart, "and possibly if they had been

more aware of what was going on, then this might have been

averted." His mother was asked in her deposition whether the

only reason for bringing the suit against Winnacunnet was because

her son murdered Gregory Smart. She replied, "Because of what

happened as a result of lack of supervision. . . . And, I believe

if there had been some kind of policy, it may have been more notice would have been taken, hence avoiding the situation that

occurred."

c. The Lattimes' testimony.

Vance Lattime testified that he believed the school should

have intervened in his relationship and Flynn's relationship with

Pam Smart. After denying that he brought suit because he was

arrested and jailed for his role in the Smart murder, he

explained the reason for bringing suit:

I think it's more along the lines of getting caught, [for the murder] realizing what happened, realizing the manipulation that was involved, then coming to jail and realizing that everything else could have been prevented if actions were taken and that is what brought the suit, not if I didn't get caught. If you don't get caught, you don't look back . . . .

His mother testified that they brought suit because the school

was negligent in hiring Pamela Smart and failing to properly

supervise her, and "had they followed up or done anything to

investigate a facuity/student relationship, that possibly this

never would have happened or gone as far as it did."

Construing the deposition testimony generously in

Winnacunnet's favor, the plaintiffs may have intended to refer to

injuries other than the boys' arrest and incarceration for their

participation in the Smart murder. If so, however, Winnacunnet

has failed to explain what other injuries the plaintiffs claimed.

Further, Winnacunnet has not explained how the injuries alleged

10 in the complaint occurred other than as a result of the Smart

murder. The deponents do not dispute that the boys were

incarcerated for their roles in the Smart murder. Winnacunnet

points to no evidence that any of the plaintiffs alleged or

suffered injuries other than those resulting from the boys'

arrest and incarceration for the Smart murder. Thus, Winnacunnet

has not shown that a dispute exists as to the source of the

underlying plaintiffs' injuries alleged in the complaint.

Because Unit #21 and Winnacunnet have not demonstrated that

my order granting summary judgment in favor of National was in

error, I deny their motions for reconsideration.

III. CONCLUSION

For the foregoing reasons, plaintiffs' motions to

reconsider, (document nos. 44 [Winnacunnet] and 26 [Unit #21])

are denied.

SO ORDERED.

Paul Barbadoro United States District Judge November 3, 1995

cc: Gordon A. Rehnborg, Jr., Esg. Peter J. Saari, Esg. Richard G. Sheehan, Esg. Mark M. Rumley, Esg.

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