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United States Fire Insurance Co. v. Mother Earth School

United States District Court, D. Oregon, Portland Division

October 31, 2019

UNITED STATES FIRE INSURANCE COMPANY, Plaintiff,
v.
MOTHER EARTH SCHOOL; BRICE LEMKE, guardian ad litem for B.L.; MICHELLE MOORE, guardian ad litem for S.M. 1 and S.M. 2; JOHN AND JANE DOES 1 through 25, Defendants.

          Thomas Lether Eric J. Neal Lether and Associates, PLLC Attorneys for Plaintiff

          Randall Vogt Barbara C. Long Vogt & Long PC, Robert E.L. Bonaparte Shenker & Bonaparte, LLP Attorneys for Defendant Brice Lemke

          Gilion C. Dumas Ashley L. Vaughn Dumas Law Group, LLC Attorneys for Defendant Michelle Moore

          Scott T. Schauermann Hitt Hiller Monfils Williams LLP Attorney for Defendant Mother Earth School

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff United States Fire Insurance Company's motion for summary judgment. For the reasons that follow, the motion is DENIED.

         BACKGROUND

         Defendant Mother Earth School was an outdoor pre-school and elementary school in Multnomah County, Oregon. Postlewaite Decl. Ex. 2 ¶ 2, ECF 47-1. Defendants B.L., S.M. 1, and S.M. 2 were students at the Mother Earth School. Id. ¶ 4; Postlewaite Decl. Ex. 3 ¶ 6. In June 2018, Defendant Lemke, as guardian ad litem for B.L., filed suit against Defendant Mother Earth School in state court, alleging that B.L. was the victim of sexual and non-sexual misconduct at the Mother Earth School. Postlewaite Decl. Ex. 1. In March 2019, Defendant Moore, as guardian ad litem for S.M. 1 and 2, filed suit against the Mother Earth School in state court, alleging that S.M. 1 and 2 were also victims of sexual and non-sexual misconduct at the Mother Earth School. Postlewaite Decl. Ex. 3. This sexual and non-sexual misconduct was allegedly committed by at least one other child who attended the Mother Earth School. Postlewaite Decl. Ex. 2, Ex. 3.

         At the time of the alleged misconduct, Defendant Mother Earth School was insured through a policy issued by Plaintiff. Postlewaite Decl. Ex. 8. This policy contains a coverage limit for abuse and molestation claims brought during the policy's period. Id. at 19. Specifically, the policy provides that:

This insurance does not apply to “bodily injury”, “property damage” or personal and advertising injury” arising out of the actual or threatened abuse or molestation by anyone of any person.
However, subject to all other terms of the policy, this exclusion does not apply to claims against an insured for failing to prevent or stop any abuse or molestation, provided the insured did not:
(1) participate in the abuse or molestation; or
(2) remain passive upon gaining actual or constructive knowledge of the abuse or molestation.

Id. at 20. A claim that arises out of or is related to actual or threatened abuse or molestation that is not excluded under these terms is limited to

$100, 000 or another specified amount up to the maximum amount of $1, 000, 000, ...

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