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Situs of Assault Does not Create Coverage\\n\\nA coverage dispute arose from the sexual assault of a special needs \\nstudent aboard her school bus. National Liability and Fire Company \\nsought a declaration that it had no duty to defend or indemnify the bus \\ncompany or its school district client in a state court action brought by\\n the student and her mother because its policy did not cover the \\nincident alleged in their complaint. The District Court erroneously held\\n that National had to defend both entities and later concluded it also \\nhad to indemnify them.\\n\\nIn National Liability & Fire Insurance Co. v. Brimar Transit, Inc. \\nPittsburgh Public School District, No. 22-2565, United States Court of \\nAppeals, Third Circuit (September 22, 2023) the dispute was resolved.\\n\\nFACTS\\n\\nBrimar Transit, Inc. transported students for the Pittsburgh School \\nDistrict under a multi-year contract. National insured the vehicles in \\nBrimar\'s fleet. Among the students Brimar transported to and from school\\n were children with special needs. One of those students-an adolescent \\ngirl named K.M.-had developmental challenges known to Brimar and the \\nDistrict. Traveling on the bus with her each day was a 12-year-old boy \\nwith similar challenges who had sexually assaulted K.M. multiple times, \\nincluding a groping incident during gym class. The gym incident led the \\nDistrict and Brimar to craft a specific plan to separate K.M. from the \\nmale student on the bus: K.M. sat right behind the driver, while the \\nmale student sat in the rear. The regular bus driver followed the plan. \\nAnd when she took maternity leave, her first replacement did too.\\n\\nA second substitute driver took over the route without following the \\nplan and sat K.M. next to the male student. Their proximity allowed the \\nmale student to use his body weight to pin K.M. to the seat. With K.M. \\ntrapped, the male student pulled down both their pants and assaulted her\\n from behind. Despite being only several feet away during the assault, \\nand despite the cries of other children, the driver did not intervene or\\n even acknowledge the attack on K.M. K.M. managed to push the male \\nstudent off her a short time later, though he assaulted her again by \\nslapping her backside as she exited at her stop.\\n\\nK.M. and her mother sued Brimar and the District alleging Brimar failed \\nto tell the driver about the plan and failed to train and supervise her \\nproperly. \\n\\nThe District Court disagreed with National on both counts.\\xa0 While this \\naction was pending, National paid more than $500,000 to settle the \\nplaintiffs suit.\\n\\nNational moved for summary judgment yet the trial Court held that \\nbecause National\'s act of settling the state court claim before critical\\n facts and evidence developed kept the District Court from making \\nnuanced decisions about its duties to defend and indemnify, it would \\nneed to indemnify Brimar and the District.\\n\\nTHE APPEAL\\nDiscussion\\n\\nThe Policy determines whether National had a duty to defend.\\n\\n\\n\\nNational argued the District Court erred and urged instead that, to \\ntrigger coverage, the underlying bodily injury must be causally \\nconnected to the use of the insured vehicle as a motor vehicle.\\xa0\\n\\nThe male student\'s previous assaults confirm the bus was merely \\nincidental to the sexual assault-i.e., as the situs of the attack.\\n\\nBecause the allegations in the complaint do not forge a strong enough link between the use of the school bus and K.M.\'s injuries, the Third Circuit concluded that the District Court erred in finding National had a duty to defend Brimar and the District.\\n\\nZALMA OPINION\\n\\nThe injuries suffered by KM were horrific but they were not, under any definition of the term, a result of the use of the school bus. The \\ndriver erred but the driver, nor the use of the bus, caused her injury. \\nNational should now seek to recover the money it paid, under a \\nreservation, on behalf of the defendants.\\n\\n(c) 2023 Barry Zalma & ClaimSchool, Inc.\\n