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AYALA v. BUTLER UNIV.
2018 WL 5044678 (S.D.Ind. 2018)

On April 18-19, 2015, a male Butler college student engaged in sexual activity with a female college student, who had advised her friend that she was going back to her dormitory room instead of going to the male college student’s room. The friend of the female student knocked on the door where the two students were staying, and discovered the female student unclothed and demanded to know why she had had lied about returning to her room. Being humiliated and embarrassed, the female student told her friend that she had been sexually assaulted by the male student.

Butler investigated the alleged sexual assault charge, and instituted a grievance hearing, where the female student acknowledged that her sexual activity with the male student was consensual. However, the grievance panel placed the burden of proof on the male student to prove his innocence, and ultimately decided that the male student should be expelled. Butler eventually followed the panel’s expulsion recommendation. The male student filed a lawsuit against Butler, the female student, and various Butler employees involved in his expulsion. He asserted a claim for civil rights violations, defamation, breach of contract, negligent infliction of emotional distress, and other tort claims. Unitrend, one of the insurers of the female student’s parents, intervened and asserted a declaratory judgment action to determine whether its liability policy was implicated to provide insurance to the female student. It also added the female student’s parent homeowner’s insurer, Puror, as an intervenor defendant, and contended that Puror owed a duty to defend the female student.

Eventually, both insurers filed cross-motions for summary judgment. Unitrend contended that Puror owed a duty to defend and must reimburse Unitrend for defense costs incurred while defending the female student. Puror sought summary judgment by contending that its policy was not triggered to provide coverage. Specifically, its policy went into effect on April 29, 2015, which was ten (10) days after the date of the sexual encounter between the students.

Unitrend argued that the Puror policy was triggered, even though it came into effect after the sexual encounter by contending that the male student’s complaint allegations that the female student pressured Butler to take action against the male student and the eventual expulsion of the male student, demonstrated infliction of emotional distress that occurred after the Puror policy start date. Puror responded to these contentions by indicating that the actions of the female student and her father in pressuring Butler to expel the male student, occurred before Puror’s policy took effect.

Puror argued the grievance hearing and the male student’s eventual expulsion, were a result of actions by Butler, not Puror’s insured, the female student. Additionally, because the female student abandoned any contention that the sexual activity was non-consensual, the only date for actionable conduct by the female student was before Puror’s policy activation date, when she initially alleged the sexual assault.

The district court agreed with Puror and granted its request for summary judgment, while denying summary judgment to Unitrend. Specifically, all of the allegations alleged against Puror’s insured, the female student, occurred before April 29, 2015, when the Puror policy went into effect. Additionally, the allegations regarding the grievance hearing and eventual expulsion, were actions undertaken by Butler, not the female student, Puror’s insured. Consequently, Puror was entitled to summary judgment.