Opinion
655883/2019
12-28-2020
MADISON SQUARE BOYS & GIRLS CLUB, INC., Plaintiff, v. ATLANTIC SPECIALITY INSURANCE COMPANY, Great American Insurance Company, and Philadelphia Indemnity Insurance Company, Defendants.
For the Plaintiff: E. LEO MILONAS, JOSEPH D. JEAN, JANINE M. STANISZ and JOAN M. COTKIN, Pillsbury Winthrop Shaw Pittman LLP, 31 West 52nd Street, New York, New York; For the Defendant: KATELIN O'ROURKE GORMAN, TIMOTHY D. KEVANE, and LAUREN E. BOULBOL, Clyde & Co US LLP, 405 Lexington Avenue, New York, New York.
For the Plaintiff: E. LEO MILONAS, JOSEPH D. JEAN, JANINE M. STANISZ and JOAN M. COTKIN, Pillsbury Winthrop Shaw Pittman LLP, 31 West 52nd Street, New York, New York;
For the Defendant: KATELIN O'ROURKE GORMAN, TIMOTHY D. KEVANE, and LAUREN E. BOULBOL, Clyde & Co US LLP, 405 Lexington Avenue, New York, New York.
Carol R. Edmead, J. It is ORDERED that the motion of plaintiff Madison Square Boys & Girls Club, Inc. for partial summary judgment seeking a judgment declaring that defendant Atlantic Specialty Insurance Company must furnish it with a defense on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019, and declaring that Endorsement No. 13 in the subject insurance policy is no bar to coverage (motion seq. 003) is denied; and it is further
ORDERED that the cross motion of defendant Atlantic Specialty Insurance Company for summary judgment declaring that it does not have an obligation to defend or indemnify plaintiff Madison Square Boys & Girls Club, Inc. on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019, is granted; and it is further
ADJUDGED and DECLARED that defendant Atlantic Specialty Insurance Company is not obligated to defend or indemnify plaintiff Madison Square Boys & Girls Club, Inc. on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019; and it is further
ORDERED that this action is dismissed as against Atlantic Specialty Insurance Company, and continues against defendants Great American Insurance Company and Philadelphia Indemnity Insurance Company; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that counsel for Atlantic Specialty Insurance Company shall serve a copy of this order, along with notice of entry, on all parties within twenty (20) days.
MEMORANDUM DECISION
In this insurance coverage dispute, plaintiff Madison Square Boys & Girls Club, Inc. (MSBGC) moves, pursuant to CPLR 3212, for partial summary judgment declaring that defendant Atlantic Specialty Insurance Company (ASIC) has a duty to defend it on the underlying claims, defined further infra , and that the terms in Endorsement No. 13 in the subject insurance policy are no bar to coverage. ASIC opposes the motion and cross-moves, pursuant to CPLR 3212, for a judgment declaring that it has no duty to defend or indemnify MSBGC.
This case is proceeding under Commercial Division Guidelines.
BACKGROUND FACTS
MSBGC is a not-for-profit organization that provides youth development programs and services in New York City (NYSCEF Doc No. 41, Joseph D. Jean [Jean] affirmation, exhibit I, ¶ 11). ASIC, defendant Great American Insurance Company (Great American) and defendant Philadelphia Indemnity Insurance Company (Philadelphia Indemnity) are corporations authorized to conduct the business of insurance in this state (NYSCEF Doc No. 42, Jean affirmation, exhibit J, ¶ 6; NYSCEF Doc No. 43, Jean affirmation, exhibit K, ¶ 7; NYSCEF Doc No. 44, Jean affirmation, exhibit L, ¶ 8).
A. The Insurance Policies
ASIC issued Not-For Profit Organization Management Liability policy No. MML-11278-18 (the ASIC Policy) to MSBGC, in effect from October 30, 2018 to October 30, 2019 with a $5 million shared aggregate limit of liability (NYSCEF Doc No. 33, Jean affirmation, exhibit A at 8-9). The ASIC Policy provides two types of coverage — Directors, Officers & Organization Liability (the D & O Section) and Employment Practices Liability (the EPL Section) (id. ). Importantly, Section I of the General Terms and Conditions Section of the ASIC Policy states, in pertinent part, that "[e]xcept for these General Terms and Conditions or unless stated to the contrary in any Coverage Section of this Policy, the terms, conditions and limitations of each Coverage Section shall apply only to that Coverage Section" (NYSCEF Doc No. 33 at 14). In addition, the term " ‘Wrongful Act ’ " shall have the meaning set forth in the applicable Liability Coverage Section " (id. at 17 [Section II (AA)]).
Section I (C) of the "INSURING AGREEMENTS " portion in the D & O Section reads, in part, that "[t]he Underwriter will pay, on behalf of the Organization , Loss from any claim first made against the Organization during the Policy Period for a Wrongful Act ; provided, that such Claim is reported to the Underwriter in accordance with Section VII of this Coverage Section" (NYSCEF Doc No. 33 at 28). A "wrongful act" under the D & O Section includes "any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty by any Insured Person in his or her capacity as such" by the "Organization " or by "any Executive in his or her Outside Capacity " (id. at 34 [Section II (AA) (1-3)]).
The D & O Section contains an exclusionary endorsement for sexual misconduct and child abuse. Endorsement No. 8, entitled "SEXUAL MISCONDUCT AND CHILD ABUSE EXCLUSION ENDORSEMENT," reads as follows:
"In consideration of the premium charged:
(1) No coverage will be available under the Coverage Section identified above for Loss from any Claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged Sexual Misconduct or child abuse or neglect, including any actual or alleged lack of supervision or mismanagement which allowed such Sexual Misconduct, abuse or neglect to occur.
(2) For purposes of this endorsement ‘Sexual Misconduct ’ means any sexual behavior, sexual abuse, sexual assault or molestation intended to lead to or culminating in any sexual act against any individual.
All other terms, conditions and limitations of this Policy shall remain unchanged"
(NYSCEF Doc No. 33 at 76).
Section I, entitled "INSURING AGREEMENTS, " in the EPL Section provides that ASIC will pay (1) losses from an "employment claim" for a "wrongful act"; (2) losses from a "third party claim" for a "third party wrongful act"; and, (3) employment crisis management reimbursement (NYSCEF Doc No. 33 at 44 [Section I (A-C)]). Relevant to this action is Section I (B), which provides that "[t]he The Underwriter shall pay, on behalf of the Insureds , Loss from any Third Party Claim first made against the Insureds during the Policy Period for a Third Party Wrongful Act ; provided, that such Third Party Claim is reported to the Underwriter in accordance with Section VI of this Coverage Section" (id. at 44). Coverage under the EPL Section is considered primary (id. at 56 [Section VII]).
Section II supplies definitions for a list of key terms in the EPL Section. An "insured" means the "organization" or an "insured person" (NYSCEF Doc No. 33 at 49 [Section II (Q)]). An "insured person" is any natural person who is an "executive" or an "employee" (id. at 48 [Section II (R)]), and an "employee" includes "any volunteer working for the Organization " (id. at 45 [Section II [D] [1]). The term "loss" is partially defined as "Defense Expenses and any monetary amount which an Insured is legally obligated to pay as a result of a covered Claim " (id. at 48 [Section II [S]).A "third party" means "any natural person who is not an Insured Person or an applicant for employment with the Organization or an Outside Entity " (id. at 49 [Section II [Y]). A "third party claim" is:
"(1) a written demand for monetary, non-monetary or injunctive relief (including any request to toll or waive any statute of limitations or request for mediation); or
(2) a civil, criminal, administrative, regulatory or arbitration proceeding for monetary, non-monetary or injunctive relief commenced by:
(a) the service of a complaint or similar pleading;
(b) the return of an indictment, information or similar document (in the case of a criminal proceeding); or
(c) the filing of a formal notice of charges, formal investigative order or similar document, brought by or on behalf of any Third Party against an Insured for a Third Party Wrongful Act "
(id. at 50 [Section II (Z)]). Under Section II (BB), a "third party wrongful act" is: "(1) discrimination against a Third Party based on such Third Party's race, color, religion, age, sex, national origin, disability, pregnancy, HIV status, mental status, genetic information, marital or family status, sexual orientation or preference, military or veteran status, or other status that is protected pursuant to any applicable federal, state or local statute, ordinance, regulation or common law;
(2) sexual harassment, including unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature, against a Third Party ; or
(3) unlawful harassment of a non-sexual nature against a Third Party "
(id. at 50).
Two endorsements — Endorsement Nos. 10 and 13 — modify the EPL Section. Endorsement No. 10, or the "NEW YORK AMENDATORY ENDORSEMENT," replaces the first two paragraphs defining a third party wrongful act in Section II (BB). Importantly, section II (BB) (2) now reads:
"sexual harassment, including unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature, against a Third Party; provided, that ‘Third Party Wrongful Act ’ shall not include any form of intentional sexual harassment, and shall include only non-intentional or negligent sexual harassment or sexual harassment imputed through the doctrine of vicarious liability; or"
(NYSCEF Doc No. 33 at 79). As with the D & O Section, the EPL Section contains an exclusionary endorsement for sexual misconduct and child abuse. Endorsement No. 13, or the "SEXUAL MISCONDUCT AND CHILD ABUSE EXCLUSION ENDORSEMENT" (the Sexual Abuse Exclusion), states:
"In consideration of the premium charged:
(1) Notwithstanding anything to the contrary contained in the Coverage Section identified above, no coverage will be available under the Coverage Section identified above for Loss from any Claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged Sexual Misconduct (as defined below) or child abuse or neglect.
(2) For purposes of this endorsement, the term ‘Sexual Misconduct ’ means any sexual abuse, sexual assault or molestation intended to lead to or culminating in any sexual act against any individual.
All other terms, conditions and limitations of this Policy shall remain unchanged"
(id. at 86).
Great American issued Excess Policy Form policy No. APX4031785 (the Great American Policy) to MSBGC, in effect from October 30, 2018 to October 30, 2019 (NYSCEF Doc No. 41, ¶ 24; NYSCEF Doc No. 43, ¶¶ 2 and 24). MSBGC alleges that the Great American Policy conforms to the same terms, conditions, and endorsements as the ASIC Policy, and that coverage is triggered once the ASIC Policy has been exhausted (NYSCEF Doc No. 41, ¶¶ 25-26).
Philadelphia Indemnity issued policy No. PHSD1392407 (the Philadelphia Indemnity Policy) to MSBGC, in effect from October 30, 2018 to October 30, 2019 (NYSCEF Doc No. 41, ¶ 28; NYSCEF Doc No. 44, ¶¶ 2 and 28). MSBGC alleges that the Philadelphia Indemnity Policy conforms to the same terms, conditions, and endorsements as the ASIC Policy, and that coverage is triggered once the ASIC Policy and the Great America Policy have been exhausted (NYSCEF Doc No. 41, ¶¶ 29-30).
B. The Underlying Claims
The underlying claims concern incidents of alleged sexual abuse of young boys who attended MSBGC's programs by Dr. Reginald Archibald (Dr. Archibald), one of MSBGC's former volunteers and a former employee at Rockefeller University, and Nicholas "Lefty" Antonucci (Antonucci), MSBGC's former Basketball Coach and Gym Director. By letter dated January 17, 2019, Marsh Law Firm PLLC (Marsh) informed MSBGC that Dr. Archibald had sexually abused a large number of young boys (NYSCEF Doc No. 34, Jean affirmation, exhibit B at 1-2; NYSCEF Doc No. 41, ¶ 2). The letter stated that Dr. Archibald, who was known as the "pool doctor," had physically examined and taken nude photographs of minors in a private examination room at MSBGC's premises (NYSCEF Doc No. 34 at 2). The letter further stated that there was a "coordinated effort between MSBGC and Rockefeller University to engage in the ‘treatment’ and correction of ‘physical defects’ of its members [as] Dr. Archibald referred our clients to Rockefeller University where he sexually abused them" (id. ). MSBGC forwarded the letter to its insurance broker on February 1, 2019, who forwarded the letter to ASIC later that same day (NYSCEF Doc No. 36, Jean affirmation, exhibit D at 1-3).
OneBeacon Insurance Group (OneBeacon), acting for ASIC, acknowledged receipt of MSBGC's notice of the matter involving Dr. Archibald. In a letter dated March 21, 2019, OneBeacon disclaimed coverage, noted that "the Reported Matter does not qualify as a Claim at this time" as that term is defined in the D & O or EPL Sections, and advised MSBGC to report the matter once it developed into a claim (NYSCEF Doc No. 37, Jean affirmation, exhibit E at 1 and 5-6). OneBeacon also wrote that Endorsement No. 8 in the D & O Section and Endorsement No. 13 in the EPL Section "may negate or limit coverage under the Policy" (id. at 6).
In 2019, MSBGC was named as a defendant in two separate actions captioned Corcoran v. The Rockefeller Univ. , Sup Ct, NY County, index No. 153375/2019, and Wagner v. The Rockefeller Univ. , Sup Ct, NY County, index No. 154318/2019 (together, the Corcoran/Wagner Actions) (NYSCEF Doc No. 38, Jean affirmation, exhibit F at 2). The plaintiffs in the Corcoran/Wagner Actions had alleged that Dr. Archibald, a pediatric endocrinologist at Rockefeller University from 1940 to 1946 and from 1948 to 1982, molested and sexually abused hundreds of young patients (id. at 2). The two actions initially arose from a letter that Rockefeller University had sent to Dr. Archibald's former patients (id. ). The letter contained contact information for Debevoise & Plimpton (Debevoise), a law firm hired to conduct an investigation (id. ). The plaintiffs in the Corcoran/Wagner Actions sought the appointment of an independent master to approve any future correspondence from Debevoise to Dr. Archibald's victims and a judgment declaring that Dr. Archibald's victims were not obligated to participate in that investigation (id. ). MSBGC furnished ASIC with copies of the complaints in the Corcoran/Wagner Actions and asked ASIC to provide a defense (id. at 1).
By letter dated July 8, 2019, OneBeacon, acting for ASIC, acknowledged receipt of the Corcoran/Wagner Actions and admitted that MSBGC was considered an "insured" under the ASIC Policy (NYSCEF Doc No. 38 at 1, 3 and 6). Nevertheless, OneBeacon disclaimed coverage, in part, on the ground that the claims arose out of "Sexual Misconduct , child abuse or neglect, which are precluded from coverage under the [ASIC] policy," and cited Endorsement Nos. 8 and 13 in support (NYSCEF Doc No. 38 at 1 and 8-9). In particular, OneBeacon rejected MSBGC's assertion that the absence of the phrase "any actual or alleged lack of supervision or mismanagement which allowed such Sexual Misconduct to occur" from Endorsement No. 13 meant that there was coverage (id. at 9). OneBeacon observed that the Sexual Abuse Exclusion precludes coverage because the Corcoran/Wagner Actions "are based upon, arise out of, directly or indirectly result from, are in consequence of, or involved actual or alleged Sexual Misconduct [i.e., sexual abuse, sexual assault or molestation intended to lead to or culminating in any sexual act against any individual], child abuse or neglect" (id. at 9). OneBeacon wrote that MSBGC could not explain how the acts complained of fell outside the scope of Endorsement No. 13 (id. ).
OneBeacon repeated ASIC's position that there was no coverage for the Corcoran/Wagner Actions in a letter to MSBGC on July 24, 2019 (NYSCEF Doc No. 36, Jean affirmation, exhibit G at 1). OneBeacon discussed the results of Debevoise's investigation, which Debevoise had presented in a report dated May 23, 2019 (id. at 2). Debevoise concluded "that Dr. Archibald's behavior toward many of the children constituted sexual misconduct and abuse" (id. ). OneBeacon also discussed three letters MSBGC had received from Marsh and another law firm, all of which described claims of sexual abuse by Dr. Archibald (id. at 2-3). OneBeacon wrote, in part, that:
"[t]he EPL Section pays Loss from a Claim for a Third Party Wrongful Act, which means certain enumerated offenses. As noted above, the Third Party Wrongful Act of sexual harassment includes only non-intentional or negligent sexual harassment. Sexual abuse of children is deemed intentional in nature. Board of Educ. of East Syracuse-Minoa Cent. Sch. Dist. v. Continental Ins. Co. , 198 A.D.2d 816, 817 (4th Dept. 1993). Third Party Wrongful Act also includes ‘sexual harassment imputed through the doctrine of vicarious liability’ "
(id. at 4). It added that the "any potential claim of lack of supervision or mismanagement, arise out of, are based upon, result from (directly or indirectly), are in consequence of, or involve sexual abuse" (id. at 5). Under prevailing case law discussing whether an insurance claim would not exist "but for" an action for which a policy exclusion applied, OneBeacon concluded there was no coverage available under the EPL Section (id. at 5-7). OneBeacon again rejected MSBGC's assertion that, given the slight difference in language in Endorsement Nos. 8 and 13 regarding negligent supervision, ASIC actually meant to include coverage for lack of supervision or mismanagement in the EPL Section (id. at 8).
On September 23, 2019, Marsh filed a complaint captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019 (the T.B. Action) (NYSCEF Doc No. 35, Jean affirmation, exhibit C). The complaint alleges that "[b]etween 1950 and 1980 MSBGC failed to properly supervise Clubhouse personnel, permitted staff unfettered and unsupervised access to children, failed to address sexual abuse which was occurring in plain sight, and exposed boys to danger" (id. , ¶ 2). In particular, the T.B. plaintiffs complain that Antonucci and Dr. Archibald "grossly and repeatedly sexually abuse[d] Plaintiffs when they were minor members of MSBGC" (id. , ¶ 3). They assert that MSBGC permitted Antonucci to have "unsupervised interactions" with members in the locker room, gym and other locations (id. , ¶ 190), and that Antonucci's sexual abuse "was readily observable, overt, rampant, and well-known among MSBGC members and staff" (id. , ¶ 62). Antonucci was later prosecuted and found guilty of sexually abusing children (id. , ¶ 63). Dr. Archibald is said to have had "virtually unfettered access to the Club and the members" (id. , ¶ 192), and that he allegedly abused plaintiffs in full view of MSBGC members and staff (id. , ¶ 87). The complaint describes one instance from the 1950s where one boy complained to MSBGC's Swim Director about Dr. Archibald's actions but was told "not to worry about it" (id. , ¶ 89). Dr. Archibald treated a number of boys at his medical practice at Rockefeller University, with MSBGC listed as the referring organization (id. , ¶¶ 90-91). In 1960, the New York County District Attorney purportedly undertook an investigation into the complaints made against Dr. Archibald by his patients at Rockefeller University (id. , ¶ 93).
The first cause of action in the T.B. complaint pleads a claim for negligence, and alleges that MSBGC had actual or constructive notice of Antonucci's and Dr. Archibald's propensities to sexually abuse and exploit children and that MSBGC breached their duty to of care, causing injury (NYSCEF Doc No. 35, ¶¶ 200, 206-210). The second cause of action pleads a claim for "outrageous conduct [that] proximately caused Plaintiffs' sexual abuse and exploitation," resulting in emotional distress (id. , ¶ 215).
MSBGC tendered the T.B. Action to ASIC on September 23, 2019 (NYSCEF Doc No. 40, Jean affirmation, exhibit H at 1). In a letter dated October 4, 2019, ASIC disclaimed coverage. Its counsel wrote that "ASIC maintains its position as expressed in letters dated July 3, 2019 and July 24, 2019 that coverage is not available for claims against the Insured arising out of sexual abuse, including the [T.B. Action]" (id. ). Counsel repeated ASIC's prior position that a third party wrongful act, as that phrase is defined in the EPL Section, is limited, in part, to "non-intentional or negligent sexual harassment ‘imputed through the doctrine of vicarious liability’ " (id. at 4). Since sexual abuse of children is intentional in nature, counsel wrote that the allegations in the T.B. Action fall outside the definition for a third party wrongful act (id. ). Counsel further wrote that any claim for vicarious liability for sexual abuse falls within Endorsement No. 13 because "it would be based upon, arise out of, directly or indirectly result from, be in consequence of or involve alleged sexual abuse" (id. at 5). Counsel also questioned the relevance of Endorsement No. 8 in the D & O Section, since that section covered claims for any act, error or omission, whereas the EPL Section covered specific, enumerated acts (id. at 8).
PROCEDURAL HISTORY
MSBGC commenced this action by filing a summons and complaint on October 8, 2019. The complaint pleads the following five causes of action: (1) a judgment declaring that defendants have a duty to defend MSBGC in the "Underlying Claims," defined as claims of sexual abuse involving Dr. Archibald (NYSCEF Doc No. 41, ¶ 2), and in the T.B. Action (together, the Underlying Claims), and to pay or reimburse MSBGC for its defense costs; (2) a judgment declaring that defendants have a duty to indemnify MSBGC in the Underlying Claims; (3) a judgment declaring that Endorsement No. 13 in the EPL Section omits an exclusion for loss arising from claims for any actual or alleged lack of supervision or mismanagement which allowed sexual misconduct, abuse or neglect to occur; (4) a judgment declaring that some of the claims alleged against MSBGC do not involved "sexual misconduct," as that phrase is defined in the policies; and, (5) breach of contract based on defendants' purported failure to pay for MSBGC's costs expended in defending itself on the Underlying Claims.
Each defendant has interposed an answer. As is relevant here, ASIC's second affirmative defense alleges that "[c]overage is not available to the extent the underlying claims against Madison Square are not for a Third Party Wrongful Act" (NYSCEF Doc No. 42 at 11). ASIC's third affirmative defense alleges that "[c]overage for the underlying claims against Madison Square is precluded by Endorsement No. 13" (id. at 12).
MSBGC now moves for partial summary judgment. It seeks a declaration that ASIC has an obligation to defend MSBGC in the T.B. Action and a declaration that Endorsement No. 13 does not bar coverage for the T.B. Action. ASIC opposes the motion and cross-moves for a judgment declaring that it has no duty to defend or indemnify MSBGC. MSBGC and ASIC agree that MSBGC is seeking coverage under the EPL Section (NYSCEF Doc No. 45, MSBGC's mem of law at 1, 5 and 13; NYSCEF Doc No. 66, ASIC's mem of law at 6).
DISCUSSION
On a motion for summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ), and by the pleadings and other proof such as affidavits, depositions and written admissions (see CPLR 3212 ). The "facts must be viewed in the light most favorable to the non-moving party" ( Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] [internal quotation marks and citation omitted]). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact ( id. , citing Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). If the moving party fails to meet its prima facie burden, the motion will be denied, "regardless of the sufficiency of the opposing papers" ( William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 [2013], citing Vega , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ).
"An insurance policy is a contract between the insurer and the insured [and] the extent of coverage is controlled by the relevant policy terms" (see Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co. , 53 A.D.3d 140, 145, 855 N.Y.S.2d 459 [1st Dept. 2008] ). Thus, where a dispute over coverage arises, the court must look to the language in the policy (see Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc. , 16 N.Y.3d 257, 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013 [2011] ). "An insurance agreement is subject to principles of contract interpretation [and] ‘unambiguous provisions of an insurance contract must be given their plain and ordinary meaning’ " ( Universal Am. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa. , 25 N.Y.3d 675, 680, 16 N.Y.S.3d 21, 37 N.E.3d 78 [2015] [internal quotation marks and citation omitted]; Government Empls. Ins. Co. v. Kligler , 42 N.Y.2d 863, 864, 397 N.Y.S.2d 777, 366 N.E.2d 865 [1977] [same]). "[A] contract is unambiguous if the language has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ " ( Broad St., LLC v. Gulf Ins. Co. , 37 A.D.3d 126, 131, 832 N.Y.S.2d 1 [1st Dept. 2006] [internal quotation marks and citations omitted]). Language is considered ambiguous if it is "susceptible of two or more reasonable interpretations" ( id. ). That said, parties cannot create an ambiguity where none exists ( Universal Am. Corp. , 25 N.Y.3d at 680, 16 N.Y.S.3d 21, 37 N.E.3d 78 ). While an insured bears the burden of demonstrating its entitlement to coverage (see Platek v. Town of Hamburg , 24 N.Y.3d 688, 694, 3 N.Y.S.3d 312, 26 N.E.3d 1167 [2015] ), an insurer seeking to invoke a policy exclusion bears the burden of demonstrating that the exclusion applies (see Seaboard Sur. Co. v. Gillette Co. , 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272 [1984] ). An insurer meets this burden by showing "that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" ( Lend Lease [US] Constr. LMB Inc. v. Zurich Am. Ins. Co. , 136 A.D.3d 52, 59, 22 N.Y.S.3d 24 [1st Dept. 2015], affd 28 N.Y.3d 675, 49 N.Y.S.3d 65, 71 N.E.3d 556 [2017] [internal quotation marks and citation omitted]). Generally, any ambiguity in an insurance contract must be resolved in the insured's favor (see Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co. , 143 A.D.3d 146, 151, 38 N.Y.S.3d 1 [1st Dept. 2016], affd 31 N.Y.3d 131, 74 N.Y.S.3d 162, 97 N.E.3d 711 [2018] ; DMP Contr. Corp. v. Essex Ins. Co. , 76 A.D.3d 844, 846, 907 N.Y.S.2d 487 [1st Dept. 2010] [same]).
Furthermore, "it is well settled that an insurer's duty to defend [its insured] is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage" ( BP A.C. Corp. v. One Beacon Ins. Group , 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007] [internal quotation marks and citation omitted]; Fitzpatrick v. American Honda Motor Co. , 78 N.Y.2d 61, 63, 571 N.Y.S.2d 672, 575 N.E.2d 90 [1991] [stating that an insurer has a duty to defend even though "facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered"]). However, "[i]f the allegations interposed in an underlying complaint allow for no interpretation which brings them within an insurance policy's provisions, then no duty [on the part of the insurer] to defend exists" ( Atlantic Mut. Ins. Co. v. Terk Tech. Corp. , 309 A.D.2d 22, 29, 763 N.Y.S.2d 56 [1st Dept. 2003] ).
At the outset, MSBGC has demonstrated that it is an "insured" under the ASIC Policy. Significantly, an insured means the "organization," and MSBGC is the named organization on the Declarations page (NYSCEF Doc No. 33 at 8 and 48). Likewise, MSBGC has demonstrated that the T.B. plaintiffs are "third parties" since they are not insured persons or job applicants with MSBGC or an outside entity (id. at 49). ASIC has not challenged these two points. However, MSBGC and ASIC disagree on whether the underlying claims constitute a third party wrongful act and whether Endorsement No. 13 precludes coverage.
The EPL section defines a third party wrongful act to mean: (1) discrimination; (2) sexual harassment; and, (3) unlawful harassment of a non-sexual nature (NYSCEF Doc No. 33 at 50). MSBGC submits that the underlying claims fall into the second category of sexual harassment (NYSCEF Doc No. 45 at 13). As stated earlier, Endorsement No. 10 modifies the second category of sexual harassment to mean "sexual harassment, including unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature, against a Third Party [and] shall not include any form of intentional sexual harassment, and shall include only non-intentional or negligent sexual harassment or sexual harassment imputed through the doctrine of vicarious liability" (NYSCEF Doc No. 33 at 79).
MSBGC concedes that Endorsement No. 10 bars coverage for intentional conduct, and as ASIC observes, "[s]exual harassment, like sexual abuse and child abuse, is intentional in nature" ( Board of Educ. of E. Syracuse-Minoa Cent. School Dist. v. Continental Ins. Co. , 198 A.D.2d 816, 817, 604 N.Y.S.2d 399 [4th Dept. 1993] citing Allstate Ins. Co. v. Mugavero , 79 N.Y.2d 153, 161-162, 581 N.Y.S.2d 142, 589 N.E.2d 365 [1992] ). Nevertheless, MSBGC claims that Endorsement No. 10 does not exclude coverage for negligent and intentional sexual harassment imputed through vicarious liability (NYSCEF Doc No. 45 at 14). MSBGC argues that the T.B. plaintiffs seek to hold MSBGC vicariously liable for the negligence of its staff, who allowed "other conduct of a sexual nature to occur," and points to paragraph 199 of the T.B. complaint, which alleges that "MSBGC acted through its board of trustees, employees, volunteers, and other agents, and is vicariously liable as principal for the actions those agents took within the scope of their employment or other agency authority, whether actual or apparent," in support. ASIC, in response, contends that MSBGC conflates a claim for negligent supervision with a claim for vicarious liability.
The vicarious liability doctrine "rests in part on the theory that — because of an opportunity for control of the wrongdoer, or simply as a matter of public policy loss distribution — certain relationships may give rise to a duty of care, the breach of which can indeed be viewed as the defendant's own fault" ( Feliberty v. Damon , 72 N.Y.2d 112, 118, 531 N.Y.S.2d 778, 527 N.E.2d 261 [1988] ). In the context of an employer/employee relationship, the doctrine of respondeat superior provides that "an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ( N.X. v. Cabrini Med. Ctr. , 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ). Respondeat superior applies equally to negligent and intentional torts, provided that the "conduct is generally foreseeable and a natural incident of the employment" ( Judith M. v. Sisters of Charity Hosp. , 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 [1999] ). However, where an employee's acts are "committed for purely personal motives and were an obvious departure from [that employee's] normal duties, [then the employer] cannot be held vicariously liable as a matter of law" ( R. v. R. , 37 A.D.3d 577, 578, 829 N.Y.S.2d 659 [2d Dept. 2007], lv denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ). Incidents of sexual abuse generally fall outside the scope of an employee's duties (see RJC Realty Holding Corp. v. Republic Franklin Ins. Co. , 2 N.Y.3d 158, 777 N.Y.S.2d 4, 808 N.E.2d 1263 [2004] [reasoning that the defendant insurer need not defend and indemnify its insured on a claim arising out of an alleged sexual assault by the insured's employee]; N.X. , 97 N.Y.2d at 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [stating that "[a] sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives"]; R. , 37 A.D.3d at 578, 829 N.Y.S.2d 659 [finding that defendants were not vicariously liable for priest on leave from his duties who then sexually abused the infant plaintiff]).
By contrast, a cause of action for negligent hiring, supervision or retention imposes direct liability upon an employer (see Gonzalez v. City of New York , 133 A.D.3d 65, 67, 17 N.Y.S.3d 12 [1st Dept. 2015]). In Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dept. 2004), the Court explained: "The negligence of the employer in such a case is direct, not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee"
( id. at 129, 781 N.Y.S.2d 342 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn , 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 [2d Dept. 1997], lv dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997], cert denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 [1997] [concluding that an employer may be liable on a claim for negligent hiring, retention or supervision even though the employer cannot be held vicariously liable for an employee's tortious conduct]). To prevail on claim for negligent hiring, retention or supervision, the plaintiff must show that "the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury" ( Sheila C. , 11 A.D.3d at 129-130, 781 N.Y.S.2d 342 ).
Since a corporation, such as MSBGC, "acts through its corporate personnel" ( Karaduman v. Newsday, Inc. , 51 N.Y.2d 531, 553, 435 N.Y.S.2d 556, 416 N.E.2d 557 [1980] ), it would appear that a corporation will always be "vicariously liable" for its employees' actions. Indeed, an employer maybe held vicariously liable for an employee's negligence in performing his or her respective duties (see Nevaeh T. v. City of New York , 132 A.D.3d 840, 843, 18 N.Y.S.3d 415 [2d Dept. 2015] [declining to grant the defendants' motion dismissing a cause of action alleging liability based upon respondeat superior where the complaint had alleged that defendants' employees were negligent in performing their duties and that such negligence proximately caused the plaintiff's injuries]).
However, close examination of the T.B. complaint reveals that the first cause of action pleads a claim for negligent supervision, not vicarious liability for "other sexual conduct" as MSBGC suggests. Tellingly, the T.B. complaint alleges that the plaintiffs were in MSBGC's custody and control when they were sexually abused; MSBGC had actual or constructive notice of Antonucci's and Dr. Archibald's propensities to sexually abuse and exploit children; MSBGC had a duty to investigate; that the sexual abuse was foreseeable; and "MSBGC failed to conduct an adequate investigation and engaged in inadequate supervision" (NYSCEF Doc No. 35, ¶¶ 197 and 200-204). The T.B. complaint further alleges that: "MSBGC failed to exercise the degree of care a parent of ordinary prudence would exercise by (i) failing to take reasonable steps to supervise Lefty, Archibald, and Plaintiffs, (ii) failing to fire or dismiss Lefty and Archibald, (iii) failing to train the staff and volunteers at MSBGC to recognize and prevent child sexual abuse, (iv) failing to warn Plaintiffs of the unreasonable risk posed by lefty and Archibald, (v) failing to take reasonable steps to protect Plaintiffs, (vi) failing to create a safe environment, and (vii) creating an environment posing an unreasonable risk of sexual abuse and other harm to Plaintiffs"
(id. , ¶ 206). Thus, MSBGC's liability in the T.B. Action, if any, would be direct, not vicarious.
Vicarious liability for negligent supervision, however, does not qualify as a third party wrongful act as that phrase is defined in Endorsement No. 10, even though the claimed acts ultimately resulted in unwelcome sexual advances, requests for sexual factors or other conduct of a sexual nature. Endorsement No. 10 specifically narrows the definition of a third party wrongful act to three specific acts, and includes "sexual harassment imputed through the doctrine of vicarious liability." Vicarious liability for negligent supervision is not listed as a covered act. Reading Endorsement No. 10 in the manner suggested by MSBGC would greatly expand the definition for a third party wrongful act. Consequently, MSBGC has not met its prima facie burden of demonstrating that the Underlying Claims are covered risks under the EPL Section.
Even assuming that the Underlying Claims constitute a third party wrongful act, the Sexual Abuse Exclusion in the EPL Section precludes coverage, even though the exclusion does not expressly reference negligent supervision. As stated above, the relevant portion of Sexual Abuse Exclusion states that "[n]otwithstanding anything to the contrary contained in the Coverage Section identified above, no coverage will be available for Loss from any Claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged Sexual Misconduct or child abuse or neglect" (NYSCEF Doc No. 33 at 86). The clear, unambiguous terms of this exclusionary endorsement plainly bars coverage for any claim arising out of sexual misconduct. "In the context of a policy exclusion, the phrase arising out of is unambiguous, and is interpreted broadly to mean ‘originating from, incident to, or having connection with’ " ( Country-Wide Ins. Co. v. Excelsior Ins. Co. , 147 A.D.3d 407, 409, 46 N.Y.S.3d 96 [1st Dept. 2017], lv denied 30 N.Y.3d 905, 2017 WL 5492107 [2017] [internal quotation marks and citation omitted]). Similarly, the use of the phrase "based on" in a policy exclusion is unambiguous (see Mount Vernon Fire Ins. Co. v. Creative Hous. , 88 N.Y.2d 347, 352, 645 N.Y.S.2d 433, 668 N.E.2d 404 [1996] ).
"To determine the applicability of an ‘arising out of’ exclusion, the Court of Appeals had adopted a ‘but for’ test defined as follows: ‘[I]f the plaintiff in an underlying action or proceeding alleges the existence of facts clearly falling within such an exclusion, and none of the causes of action that he or she asserts could exist but for the existence of the excluded activity or state of affairs, the insurer is under no obligation to defend the action’ "
( Country-Wide Ins. Co. , 147 A.D.3d at 409, 46 N.Y.S.3d 96 [citation omitted]). As such, the court must look at the underlying acts giving rise to the claim, since "it is the nature of the underlying acts, not the theory of liability, that governs" ( Sweet Home Cent. School Dist. of Amherst & Tonawanda v. Aetna Commercial Ins. Co. , 263 A.D.2d 949, 949, 695 N.Y.S.2d 445 [4th Dept. 1999], appeal withdrawn 94 N.Y.2d 915, 707 N.Y.S.2d 623, 729 N.E.2d 342 [2000] ). As applied here, the negligent supervision claim pled in the T.B. Action is based upon, arises out of, or directly or indirectly results from sexual misconduct, which is excepted from coverage under the EPL Section. Thus, the Sexual Abuse Exclusion precludes coverage for the Underlying Claims.
MSBGC's reliance on Watkins Glen Cent. School Dist. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 286 A.D.2d 48, 732 N.Y.S.2d 70 (2d Dept. 2001) ( Watkins ), although factually similar, is distinguishable. The plaintiff school district in Watkins had obtained a commercial general liability policy and an "errors and omissions" insurance policy ( id. at 50, 732 N.Y.S.2d 70 ). A teacher in the plaintiff's employ was alleged to have sexually abused a student ( id. ). The student brought suit against the plaintiff for negligent hiring, supervision and retention, and the plaintiff sought defense and indemnification under the errors and omissions policy ( id. ). The insurance carrier declined coverage based on the exclusions excepting claims arising from assault and battery and bodily injury and emotional distress from coverage ( id. ). The Court found that the insurer was obligated to provide the plaintiff with a defense and indemnification arising from its negligence ( id. at 52, 732 N.Y.S.2d 70 ). The Court reasoned that "[a]n errors and omissions policy is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business" ( id. at 51, 732 N.Y.S.2d 70 [internal quotation marks and citation omitted]). In addition, such policies "generally provide coverage for acts of negligence and do not insure against intentional acts" ( id. ). The definition for a "wrongful act" in the subject policy included "any actual or alleged breach of duty, neglect, error or omission committed solely in performance of duties" ( id. at 52, 732 N.Y.S.2d 70, quoting Board of Pub. Educ. of Sch. Dist. v. National Union Fire Ins. Co. , 709 A.2d 910, 913 [Pa. Super. Ct. 1998], appeal denied 556 Pa. 669, 727 A.2d 126 [1998] ). Thus, the Court concluded that the plaintiff had purchased an errors and omissions policy "to cover its risk of loss arising from negligence committed by its employees in its role as parental substitute" ( id. at 54, 732 N.Y.S.2d 70 ).
However, the ASIC Policy is distinguishable as it is not an errors and omissions policy (see Hamilton Specialty Ins. Co. v. Kinsale Ins. Co. , ––– F.Supp.3d ––––, ––––, 2020 WL 1876358, *6, 2020 U.S. Dist LEXIS 65916, *14 [S.D. N.Y. April 15, 2020, No. 19cv5548 (DLC) ] [declining to apply Watkins in an insurance coverage dispute related to an employment practices liability policy]). Significantly, plaintiff seeks coverage under the EPL section of the ASIC Policy. Employment practice liability insurance "generally provide[s] coverage from employment-related claims against an insured employer, its employee, directors, and officers" (Anne M. Payne, New York Insurance Law § 17:23 31 [West's NY Prac Series Dec. 2019 update]; see also Krueger Intl., Inc. v. Royal Indem. Co. , 481 F. 3d 993, 994 [7th Cir. 2007], rehearing denied 2007 U.S. App LEXIS 11031 [7th Cir., May 3, 2007] [stating that employment practices liability insurance provides coverage for torts against employees that do not involve physical injury such as discrimination, retaliation, harassment, and wrongful termination]). Hence, the type of risks for which an EPL policy covers differs from those covered under an errors and omissions policy. Moreover, unlike the definition of a wrongful act in the errors and omissions policy in Watkins , Section II (DD) in the EPL Section defines a wrongful act as:
"(1) with respect to any past, present or prospective Employee , an Employment Practices Wrongful Act committed or allegedly committed by the Organization or by any Insured Person in his or her capacity as such; (2) with respect to any past, present or prospective Outside Entity Employee , an Employment Practices Wrongful Act committed or allegedly committed by any Executive in his or her Outside Capacity ;
(3) with respect to any Third Party , a Third Party Wrongful Act committed or allegedly committed by the Organization or by any Insured Person in his or her capacity as such;
(4) an Illegal Hiring or Harboring Wrongful Act committed or allegedly committed by the Organization or by any Insured Person in his or her capacity as such; or
(5) a Wrongful Internet Act "
( id. at 50-51, 732 N.Y.S.2d 70 ). Conversely, a wrongful act under the policy in Watkins encompassed any alleged error or omission committed in the performance of the insured's duties. Notably, MSBGC does not argue that the Underlying Claims fall within any category apart from Section II (DD) (3).
MSBGC also argues that the ASIC Policy is a "wrongful acts" policy, which covers negligence claims that do not arise out of the excluded conduct. But, as explained above, The EPL Section expressly enumerates and defines what five actions constitute a wrongful act. MSBGC has not demonstrated that the Underlying Claims qualify as a wrongful act or a third party wrongful act under the EPL Section of the ASIC Policy, and ASIC has demonstrated that the Sexual Abuse Exclusion precludes coverage for the Underlying Claims.
MSBGC's argument that the sexual misconduct and child abuse endorsements in the D & O and EPL Sections must be read together so as to "harmonize" the ASIC Policy as a whole lacks merit. Both exclusionary endorsements contain similar language ruling out coverage for claims "based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving" sexual misconduct, child abuse or neglect (NYSCEF Doc No. 33 at 76 and 86). Endorsement No. 8 in the D & O Section, though, adds the language "including any actual or alleged lack of supervision or mismanagement which allowed such Sexual Misconduct, abuse or neglect to occur," whereas the Sexual Abuse Exclusion in the EPL Section omits this language (id.). MSBGC submits that this omission was intentional and asserts that the Sexual Abuse Exclusion does not bar negligent supervision and mismanagement claims. MSBGC, though, ignores the language in the General Terms and Conditions Section of the ASIC Policy stating that "the terms, conditions and limitations of each Coverage Section shall apply only to that Coverage Section" (NYSCEF Doc No. 33 at 14). "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" ( Greenfield v. Philles Records , 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002] ). "The best evidence of what parties to a written agreement intend is what they say in their writing" ( id. [internal quotation marks and citation omitted]). In view of this fundamental principle, construing the ASIC Policy in the manner suggested by MSBGC runs counter to what the parties had intended, namely that each coverage section is governed by its own terms and conditions. As such, the terms in Endorsement No. 8 are largely immaterial to application of the Sexual Abuse Exclusion to the Underlying Claims.
MSBGC also argues that several allegations in the T.B. complaint implicate coverage because some of the allegations did not involve actual "contact" with a minor. MSBGC points out that T.B. plaintiffs had alleged that Antonucci was often "naked inside the locker room" (NYSCEF Doc No. 35, ¶ 49); Antonucci organized summer sleep outs (id. , ¶¶ 51-55); Dr. Archibald took nude photographs of the boys (id. , ¶ 80); and, Dr. Archibald displayed photos of nude children in his office (id. , ¶ 82). "Sexual misconduct" for purposes of the Sexual Abuse Exclusion means "sexual abuse, sexual assault or molestation" (NYSCEF Doc No. 33 at 86). MSBGC argues that the dictionary definitions for sexual abuse, sexual assault and molestation all involve physical contact, but some of the alleged actions, above, did not involve actual contact. As such, MSBGC submits that conduct complained of does not constitute sexual misconduct as that phrase is defined in the ASIC Policy.
This argument is unpersuasive. In reviewing the T.B. complaint in its entirety, these alleged actions by Antonucci and Dr. Archibald all implicate sexual misconduct under the Sexual Abuse Exclusion or "other conduct of a sexual nature." For instance, immediately following the paragraph alleging that Antonucci was often naked in the locker room, the T.B. plaintiffs allege that Antonucci "took young boys into a closet or room in or near the gym where he sexually abused them" (NYSCEF Doc No. 35, ¶ 50). Regarding the summer sleep outs, Antonucci is alleged to have "grabbed and fondled" the young boys who attended them (id. , ¶ 61). Dr. Archibald allegedly displayed nude photos of children in his office, but the T.B. plaintiffs also allege that Dr. Archibald took nude photos of them during their physical examinations, where he sexually abused them (id. , ¶¶ 79-80).
CONCLUSION
Accordingly, it is
ORDERED that the motion of plaintiff Madison Square Boys & Girls Club, Inc. for partial summary judgment seeking a judgment declaring that defendant Atlantic Specialty Insurance Company must furnish it with a defense on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019, and declaring that Endorsement No. 13 in the subject insurance policy is no bar to coverage (motion seq. 003) is denied; and it is further
ORDERED that the cross motion of defendant Atlantic Specialty Insurance Company for summary judgment declaring that it does not have an obligation to defend or indemnify plaintiff Madison Square Boys & Girls Club, Inc. on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019, is granted; and it is further
ADJUDGED and DECLARED that defendant Atlantic Specialty Insurance Company is not obligated to defend or indemnify plaintiff Madison Square Boys & Girls Club, Inc. on the underlying claims, defined in the complaint as "multiple claims for damages from survivors of alleged childhood sexual abuse by Dr. Reginald Archibald," and in the action captioned T.B. v. Madison Square Boys & Girls Club , Sup Ct, NY County, index No. 950155/2019; and it is further
ORDERED that this action is dismissed as against Atlantic Specialty Insurance Company, and continues against defendants Great American Insurance Company and Philadelphia Indemnity Insurance Company; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that counsel for Atlantic Specialty Insurance Company shall serve a copy of this order, along with notice of entry, on all parties within twenty (20) days.