United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
Mutual Insurance Company (“Brotherhood”) seeks a
determination of its liability under insurance policies it
issued to Community Christian Church of Independence, Kansas
(hereinafter “Community Christian” or “the
church”). In two related lawsuits filed in state court,
minors M.M. and J.J. claimed they were sexually abused by
Steven Butler, a pastor at Community Christian, and they
sought damages from Butler, the church, and, in J.J.'s
case, from a group of individuals identified as church
elders. Brotherhood contends its coverage for these claims is
capped by a $300, 000 limit in a Sexual Acts Endorsement, and
that its duty to defend the church and the elders terminated
upon Brotherhood's payment of $300, 000. The defendants,
on the other hand, contend Brotherhood's coverage is
subject to a $1, 000, 000 limit, and that Brotherhood's
duty to defend is ongoing.
matter is now before the court on cross-motions for summary
judgment. The court also has before it Brotherhood's
motion for default judgment against Steven Butler.
oral argument was requested in this case, the issues
presented are questions of law concerning construction of an
insurance contract and the court concludes that oral argument
would not assist in deciding the issues presented.
Christian Church hired Steven Butler as a pastor in 2004. In
2012, defendant M.M., a minor, alleged in a state-court
lawsuit that Butler sexually abused him from 2006 to 2010
while Butler was a pastor at Community Christian. M.M.
asserted claims against Butler and against Community
Christian, including: Count I - battery against Butler; Count
II - intentional infliction of emotional distress against
Butler; Count III - negligent infliction of emotional
distress against Community Christian (including allegations
that the church, through its elders, authorized or ratified
Butler's conduct and knew or should have known he was
engaging in inappropriate conduct with minors); Count IV -
negligent supervision against the church; and Count V -
negligent hiring and retention against the church.
J.J., a minor, and his mother A.K., filed a similar suit in
state court in 2016 against Butler, Community Christian, and
a group of individuals identified as church elders. J.J.
alleged sexual abuse by Butler from approximately 2006 to
2010. The claims in that suit included: Count I -
battery/sexual abuse against Butler; Count II - defamation
against Butler, the church, and the elders, based on
allegations that after J.J.'s mother reported the abuse
to the church, Butler spoke from the pulpit to the
congregation and claimed that J.J. and his mother were
“liars” and were trying to obtain financial gain;
Count III - negligent supervision against the church and the
elders for failing to supervise Butler; Count IV - negligent
supervision against the church and elders for failing to
supervise minor parishioners; Count V - negligent infliction
of emotional distress; Count VI - negligent false detention
or imprisonment, based upon allegations that during one
incident Butler locked a door and would not allow J.J. to
leave or J.J.'s mother to enter. The last incidents of
sexual abuse alleged by J.J. and M.M. occurred in 2009 or
was criminally charged with sexually molesting M.M. and J.J.
in State v. Butler, Case No. 12-CR-1961, in
Montgomery County, Kansas. A jury convicted Butler of
aggravated criminal sodomy of J.J., but acquitted him of
criminal charges with respect to M.M. Butler received a life
sentence without the possibility of parole until after 25
years. The Kansas Court of Appeals affirmed Butler's
conviction. State v. Butler, No. 112, 723, 2016 WL
1614167, 369 P.3d 341 (Table) (Kan. App. 2016).
is defending Butler, Community Christian, and the elders in
the underlying civil lawsuits.
filed an interpleader action in the District Court of
Crawford County, Kansas, No. 2016-CV-000101-P, through which
it paid $300, 000 under the Sexual Acts Endorsement in the
2007-2010 policy. The $300, 000 has been distributed to M.M.,
J.J., and A.K., pursuant to an order of the Crawford County
issued two policies to Community Christian. The first policy
was effective from December 24, 2004, to December 24, 2007.
The second policy was effective from December 24, 2007, to
December 24, 2010. Both policies were numbered 15M5A0289744.
policy provides commercial liability coverage under form
GL-100, for a General Occurrence Limit of $1, 000, 000, and a
General Aggregate Limit of $6, 000, 000. The policies also
provide additional coverage under BGL-63, BGL-81, and BGL-65
for Counseling Acts, Directors & Officers coverage, and
Religious Communication, in the same amounts as the
commercial liability. The policies also provide additional
coverage through a Sexual Acts Endorsement under form BGL-61,
which is subject to a $300, 000 coverage limit, and a $300,
000 coverage aggregate limit.
declarations page states that the coverages listed are
subject to the terms of the designated coverage forms. It
states that only one liability coverage and one medical
coverage will apply to an occurrence and any related loss. It
states that any limit which is specifically stated within a
coverage form or endorsement is the most that Brotherhood
will pay for the coverage to which such limits applies, and
it refers to BGL-11 for application of limits.
GL-100 Commercial Liability Coverage Form
policies include form GL-100, which sets forth terms and
conditions for general liability coverage. Under
“Principal Coverage L - Bodily Injury/Property Damage,
” Brotherhood promised to pay all sums which the
insured becomes legally obligated to pay as damages due to
bodily injury to which the insurance applies. The bodily
injury must have resulted from an occurrence, which according
to the policy means an accident and includes repeated
exposure to similar conditions. The policy defined bodily
injury to mean bodily harm, sickness or disease sustained by
a person, but not mental or emotional injury, suffering, or
distress that does not result from a physical injury.
policy defined insured (in part) to mean
“you and all of your executive officers and directors,
but only while acting within the scope of their
duties….” The term also included
“your employees, for acts within the
scope of their employment by you
GL-100 provides, under a Section titled “How Much We
Pay, ” that the “limits, shown
on the declarations … are the most
we pay regardless of the number of: a.
Insureds under the Commercial Liability
Coverage; b. persons … who sustain injury or damage;
or c. claims made or suits brought.” It provides that
the “Each Occurrence Limit” is the most
Brotherhood will pay for the total of damages under Coverages
L, N, and O, and medical expenses under Coverage M, due to
bodily injury arising out of a single occurrence.
GL-100 contains a condition entitled “Separate
Insureds, ” which states that coverage under Commercial
Liability Coverage applies separately to each insured against
whom a claim is made, and that this does not affect the
limits stated in the policy.
GL-100 includes the following concerning Brotherhood's
duty to provide a defense:
under this coverage are in addition to the limits for the
Commercial Liability Coverage.
1. We have the right and duty to defend a
suit seeking damages which may be covered
under the Commercial Liability Coverage. We
may make investigations and settle claims or suits we decide
* * *
2. We do not have to provide defense after
we have paid an amount equal to the limit as
the result of:
a. a judgment; or
b. a written settlement agreed to by us.
and Medical Coverage Form (BGL-11)
policies include form BGL-11, which is captioned
“Liability and Medical Coverage Form, ” and which
provides additional definitions, terms, and exclusions. It
further provides that all provisions of the GL-100 and any
“Liability Coverage Endorsements … (BGL
Forms)” are subject to the terms of the BGL-11 form,
and that in the case of any conflicting terms, the BGL-11
form will control.
includes the following definitions:
injury means mental or emotional injury, suffering
or distress sustained by a person other than as a result of
physical injury. It does not include bodily injury or
means specified bodily injury, emotional