An order granting summary judgment is reviewed de novo
Howerton v. Arai Helmet, Ltd.
, 358 N.C. 440, 597 S.E.2d 674 (2004).
Summary judgment is appropriate 'if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as toany material fact and that [a] party is entitled to a judgment as
a matter of law.' Summey v. Barker
, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2001)). Evidence presented by the parties is viewed in the light
most favorable to the non-movant. Summey
, 357 N.C. at 496, 586
S.E.2d at 249.
In this case, Ryals argues that Plaintiff's policy provides
coverage under Coverage B of its Police Professional Liability
(See footnote 1)
The pertinent insuring agreement of that form
provides that Plaintiff will
pay those sums that the insured becomes
legally obligated to pay as damages because of
personal injury to which this insurance
The Police Professional Liability Coverage Form defines insured
as any person or organization qualifying as such under SECTION II
- WHO IS AN INSURED.
SECTION II - WHO IS AN INSURED states:
1. Each of the following is an insured:
. . . .
b. Your employees, but only for acts within
the scope of their employment by you.
(See footnote 2)
Ryals contends that (1) Penny meets the definition of an insured
under the Police Professional Liability Coverage Form, and (2) the
coverage provisions of the form are ambiguous and violate public
policy, and, therefore, should be construed in favor of providing
coverage for Penny in the underlying action. We disagree.
In deciding whether Plaintiff's policy affords coverage for
Penny, we are guided by well-established rules of insurance policy
construction. First, an insurance policy is a contract between
the parties which must be construed and enforced according to its
terms. Graham v. James F. Jackson Assoc., Inc.
, 84 N.C. App. 427,
430, 352 S.E.2d 878, 880, disc. review improvidently allowed
N.C. 295, 362 S.E.2d 277 (1987). A court must use the definitions
given in the policy to determine the meaning of words contained in
the policy. Durham City Bd. of Educ. v. Nat'l Union Fire Ins.
, 109 N.C. App. 152, 156, 426 S.E.2d 451, 453, disc. review
, 333 N.C. 790, 431 S.E.2d 22 (1993). In the absence of
such definition[s], nontechnical words are to be given a meaning
consistent with the sense in which they are used in ordinary
(quoting Wachovia Bank & Trust Co. v. Westchester
Fire Ins. Co.
, 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)).
An ambiguity exists when the language used in the policy is
susceptible to different, and perhaps conflicting,
interpretations. McLeod v. Nationwide Mut. Ins. Co.
, 115 N.C.
App. 283, 290, 444 S.E.2d 487, 492, disc. review denied
, 337 N.C.
694, 448 S.E.2d 528 (1994). Any ambiguity must be strictly
construed in favor of the insured. Maddox v. Colonial Life &Accident Ins. Co.
, 303 N.C. 648, 280 S.E.2d 907 (1981).
Exclusions from and exceptions to undertakings by the company are
not favored, and are to be strictly construed to provide the
coverage which would otherwise be afforded by the policy. Id.
650, 280 S.E.2d at 908.
To be within the scope of employment, an employee, at the
time of the incident, must be acting in furtherance of the
principal's business and for the purpose of accomplishing the
duties of his employment. Troxler v. Charter Mandala Ctr., Inc.
89 N.C. App. 268, 271, 365 S.E.2d 665, 668, disc. review denied
322 N.C. 838, 371 S.E.2d 284 (1988). Where the employee's actions
conceivably are within the scope of employment and in furtherance
of the employer's business, the question is one for the jury.
Medlin v. Bass
, 327 N.C. 587, 593, 398 S.E.2d 460, 463 (1990).
Some acts, however, are so clearly outside the scope of employment
that summary judgment is proper. Id.
at 594, 398 S.E.2d at 464.
To come under the coverage of the policy, Penny must fall
under the definition of an insured. Accordingly, we must first
determine if the sexual assault, as alleged, was within the scope
of [Penny's] employment by [the Town]. This Court decided a
similar issue in Durham City Bd. of Educ.
. In that case, a
student in Durham's public schools filed a complaint alleging that
she had called the school and had asked a female athletic coach for
a ride. The complaint further alleged that the defendant, a male
athletic coach, picked up the student, took her to his house, and
raped her. This Court concluded that the defendant was not aninsured under the school district's insurance policy, which
defined insured as any employee of the School District while
acting within the scope of his or her duties[.] Durham City Bd.
, 109 N.C. App. at 157, 426 S.E.2d at 454. We stated that
a sexual assault by a school board employee upon a student is
beyond the course of the employee's employment. Id.
, 327 N.C. 587, 398 S.E.2d 460). Thus, this Court concluded
that the school district's insurance policy did not provide
coverage for the alleged rape.
, the allegations and forecast of evidence
showed that a school principal sexually assaulted a student after
summoning the student to his office. Our Supreme Court stated that
although the principal was exercising authority conferred upon him
by the school in summoning the student to his office, the principal
was advancing a completely personal objective in sexually
assaulting the student. Medlin
, 327 N.C. at 594, 398 S.E.2d at
The Supreme Court held that a sexual assault was beyond the
course and scope of [the principal's] employment as a matter of
We are persuaded by the reasoning of Durham City Bd. of Educ.
to conclude that the sexual assault as alleged by Ryals
was not within the scope of Penny's employment by the Town. Penny,
therefore, is not an insured as defined by the Police
Professional Liability Coverage Form of Plaintiff's policy. We
need not address Ryals' contention that the coverage provisions ofthe policy are ambiguous and violate public policy. Those
provisions only apply to an insured under the policy.
(See footnote 3)
Judges McGEE and SMITH concur.
Report per Rule 30(e).