Matter of James v Board of Educ. of the Marathon Cent. Sch. Dist.
Annotate this CaseDecided on December 17, 2013
Supreme Court, Cortland County
Matter of Todd A. James, Petitioner,
against
Board of Education of the Marathon Central School District, REBECCA STONE, in her capacity as Superintendent of the Marathon Central School District; and THE MARATHON CENTRAL SCHOOL DISTRICT, Respondent.
2013-0267-M
RICHARD E. CASAGRANDE, ESQ.
NYSUT - OFFICE OF GENERAL COUNSEL
By:Elizabeth R. Schuster, Esq.
Attorneys for Petitioner
800 Troy-Schenectady Road
Latham, New York 12110
FERRARA, FIORENZA, LARRISON
BARRETT & REITZ, P.C.
By:Charles E. Symons, Esq.
Attorneys for Respondent
5010 Campuswood Drive
East Syracuse, New York 13057
Phillip R. Rumsey, J.
In this CPLR article 78 proceeding, petitioner, an employee of respondent school district, challenges respondents' refusal to provide him with complete indemnification in a civil action (the underlying action). In late March 2012, petitioner was employed as a teacher and track coach by the school district. The underlying action was brought on behalf of a female student who was then thirteen years old and a member of the track team. The complaint in the underlying action alleges the following facts: While participating in an after-school track practice, the student was running along a road in the Town of Marathon. She was alone because she was having difficulty running due to pain in her left knee. When the student saw petitioner approaching in his vehicle, she stopped running and waved to him to seek his assistance. Petitioner stopped his vehicle to speak with the student, who informed him of her left knee pain. He responded by squatting beside the student to feel her left leg near her knee, and he continued by placing his hands on the student's running shorts, and then by using his right hand to grab and fondle her left buttock. He told the student that if she told anyone about his actions that he would remove her from the track team. Based on the foregoing allegations, the underlying complaint asserts five causes of the action: (1) a negligent supervision claim against the school district; (2) an assault claim against petitioner; (3) a battery claim against petitioner; (4) an intentional infliction of emotional distress claim against petitioner; and (5) a negligent infliction of emotional distress claim against petitioner.
Upon being served with the summons and complaint, petitioner requested, pursuant to Education Law § 3811, that the school district provide him with a defense and indemnification in the underlying action. Ultimately, the school district notified petitioner that it would provide, through its liability insurer, a defense of the underlying action and indemnification for any damages that may be awarded against petitioner on the fifth cause of action — for negligent infliction of emotional distress — and that it would not provide indemnification for any damages that may be awarded for the intentional torts alleged in the second, third, or fourth causes of action. Petitioner commenced this proceeding and respondents moved, without answering, for summary judgment and dismissal of the petition on objections in point of law.
Preliminarily, respondents note that the notice of petition refers to Education Law § 3028 — which requires school districts to pay attorneys' fees and expenses incurred in defending any action or proceeding arising from disciplinary action taken against a pupil — and seeks judgment ordering respondents to pay costs that petitioner incurred in defending himself from criminal charges, while the petition seeks, pursuant to Education Law § 3811, to compel respondents to provide a complete defense and indemnity to the underlying civil action. In reply, petitioner's counsel advises that the reference in the notice of petition to Education Law § 3028 was a scrivener's error. As further noted in reply, the verified petition seeks defense and indemnity for the underlying action pursuant to Education Law § 3811. Accordingly, the notice of petition is deemed amended to conform to the proof (see CPLR 3025[c]), by changing "3028" to "3811," and by changing the relief sought to that requested in the "Wherefore" clause set forth on page six of the verified petition. [*2]
Turning to respondents' motion to dismiss petitioner's claim for a complete indemnity in the underlying action, the court may properly consider the merits of the petition because the dispositive facts are undisputed and the parties had ample opportunity to present their respective arguments (see Matter of Shellfish, Inc. v New York State Dept. of Envtl. Conservation, 76 AD3d 975, 978 — 979 [2010], citing Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau Co., 63 NY2d 100, 102 [1984], Matter of Kuzma v City of Buffalo, 45 AD3d 1308, 1310 — 1311 [2007]; see also Brown v Midrox Ins. Co., 108 AD3d 921, 922 n* [2013], citing Nassau BOCES Cent. Council of Teachers, 63 NY2d at 103 [notice that a motion to dismiss an action would be accorded summary judgment treatment was not required where it is clear that no prejudice will result from omission of notice]; Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557 [2000] [motion to dismiss, pursuant to CPLR 7804[f], must be granted where the petition and supporting papers fail to allege facts sufficient to support the alleged claim]).
Education Law § 3811(1) requires that school districts defend teachers in civil actions arising out of the exercise of their duties and indemnify them from any resulting damages (see Education Law § 3811; Matter of Matyas v Board of Educ., Chenango Forks Cent. School Dist., 63 AD3d 1273, 1274 [2009]).[FN1] The issue of whether the alleged conduct on which the underlying action is based comes within the provisions of Education Law § 3811(1) as having been within the discharge of petitioner's professional duties as an employee of respondents is for respondents to decide in the first instance, and their determination may be set aside only if it lacks a factual basis and, therefore, is arbitrary and capricious (id. at 1274 — 1275, quoting Matter of Riehle v County of Cattaraugus, 17 AD3d 1029, 1030 [2005], and citing Matter of Schenectady Police Benevolent Assn. v Cit of Schenectady, 299 AD2d 717, 718 [2002], Matter of Polak v City of Schenectady, 181 AD2d 233, 236 [1992]).
Respondents correctly noted that the duty to defend is broader than the duty to indemnify (see petition, Exhibit F [letter from respondents' attorney to petitioner's attorney dated July 23, 2013; herein disclaimer letter], p. 4; see also Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586 [2007] [like an insurance company's contractual duty to indemnify an insured, a municipal employer's statutory duty to defend an employee is broader than its duty to indemnify]; Matter of Sharrow v State of New York, 216 AD2d 844 [1995], lv denied 87 NY2d 801 [1995] [the state's role in deciding whether to defend an employee is similar to that of an insurance company deciding whether a defense is owed under its policy]). Thus, the duty to provide a defense of the entire action is triggered if any of the alleged actionable conduct reasonably falls within the discharge of petitioner's duties as track coach (see Matter of Dreyer, 43 AD3d at 588; see also Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443 [2002] [a municipal employer's duties to defend and indemnify are similar to the duties imposed on an insurance company, and a defense of the entire action is required if any of the claims asserted [*3]arguably arise from a covered event]). Respondents rationally concluded that the allegations asserted in the fifth cause of action — that petitioner negligently performed his duties as a track coach when he examined the student — fell within the discharge of his duties and, therefore, that the school district is required to provide petitioner with a defense of the entire action.
The duty to indemnify is not coextensive with the duty to defend and must be evaluated on a claim by claim basis.[FN2] Education Law § 3811 requires that a school district indemnify a teacher in civil actions for damages that arise only from acts performed in the scope of his or her employment. An employee's actions are within the scope of his or her employment only if the purpose of such acts is to further the employer's interest, or to carry out the duties owed to the employer (see Matter of Schenectady Police Benevolent Assn., 299 AD2d at 718 — 719).Although Education Law § 3811 does not specifically exclude indemnity for intentional torts, it provides that a school district's duty to indemnify is conditioned upon the teacher obtaining certification that he or she "acted in good faith with respect to the exercise of his powers or the performance of his duties under this chapter" (Education Law § 3811[1][c]).[FN3]
Respondents concluded that petitioner's examination of the student in response to her complaint of knee pain was within the scope of his employment as a track coach for the school [*4]district, and, therefore, offered a defense of the entire action and indemnity against any damages that may arise from petitioner's negligence in performing that duty. However, the fact that some of the alleged conduct may have arisen in petitioner's performance of his duties does not require that he be indemnified for damages based on conduct that exceeds the scope of his employment. With respect to the allegations on which the second, third and fourth causes of action are based — that petitioner intentionally grabbed and fondled the student's left buttock and then threatened her with dismissal from the track team if she reported the incident — respondents concluded that such conduct is not within the scope of petitioner's employment.
In that regard, there is no basis for concluding that petitioner's conduct, allegedly constituting an intentional tort, amounted to acting in good faith or that such conduct was merely the result of petitioner inartfully trying to fulfill his duties.[FN4] Similarly, no reasonable argument may be made that such conduct either furthers the school district's legitimate interests or was required for petitioner to carry out his duties as a coach (see e.g. disclaimer letter, pp. 2 — 4). Notably, petitioner has not alleged or argued that a good faith basis exists for a coach to grab and fondle a student — even in response to a complaint of knee pain — or that doing so either furthers the school district's interests or was necessary to the performance of his duties. Accordingly, respondents had a rational basis for concluding that such conduct was not performed within the scope of petitioner's employment, and, therefore, that the school district has no duty to indemnify him with respect to the second, third and fourth causes of action. Accordingly, their determination may not be set aside (see Matter of Matyas, 63 AD3d 1273).
Based on the foregoing, it is ordered that respondents provide petitioner with a defense of the underlying action and indemnity for damages arising from the fifth cause of action asserted therein. The petition is otherwise dismissed, with prejudice.
This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry.
Dated:December 17, 2013
Cortland, New York [*5]
_______________________________
HON. PHILLIP R. RUMSEYSupreme Court Justice
Footnotes
Footnote 1: The phrase utilized in Education Law § 3811 — "arising out of the exercise of his powers or the performance of his duties under this chapter" — is equivalent to the term "scope of employment" (see Matter of Segal-Cotler v Board of Educ. of the City Sch. Dist. of the City of NY, 20 NY3d 671, 675 — 676 [2013] ["scope of employment," "discharge of duties," "performance of duties," and similar phrases are interchangeable]).
Footnote 2: Petitioner's argument that he is entitled to indemnification for "all damages" arising from an action accusing him of wrongdoing while performing his duties is unavailing, inasmuch as it is effectively an argument that the duty to indemnify is as broad as, and coextensive with, the duty to defend, and because it ignores the language of the statute which specifically provides that the duty to indemnify arises only with respect to acts committed in good faith within the scope of employment.
Footnote 3: Respondents rely, in part, on cases where it was determined that public employees were not entitled to indemnification for damages arising from intentional torts (see Rew v County of Niagara, 73 AD3d 1463 [2010]; Grasso v Schenectady County Pub. Lib., 30 AD3d 814 [2006]). As noted by petitioner, those cases were decided under Public Officers Law § 18, which — unlike Education Law § 3811 — specifically excludes indemnity for intentional torts (see Public Officers Law § 18[4][b]). However, the condition imposed by Education Law § 3811 — that an employee may obtain indemnity only for acts done in good faith — bars indemnity for liability arising from the intentional acts allegedly committed by petitioner, because there is no basis to conclude that such conduct could have been in good faith. Accordingly, the court finds Rew and Grasso instructive in this case (see also Matter of Riehle, 17 AD3d 1029 [decided under Public Officers Law § 18 and quoted in Matter of Matyas, 63 AD3d 1273]; Matter of Polak, 299 AD2d 233 [decided under Public Officers Law § 18 and cited in Matter of Matyas]; Matter of Schenectady Police Benevolent Assn., 299 AD2d 717 [decided under General Municipal Law § 50-j[1], which specifically provides that municipal employers are liable only for negligent acts or torts of police officers committed in the performance of their duties and within the scope of employment, and cited in Matter of Matyas]; see generally Gibbs v CNA Ins. Cos., 263 AD2d 836, 838 [1999], lv denied 94 NY2d 755 [1999] ["the ordinary person would be startled by the notion" that a person could be indemnified for sexually molesting a child, thereby transferring responsibility for such acts to others, in this case, to taxpayers in the school district]).
Footnote 4: See Matter of Polak, 181 AD2d at 236 (the intentional act of placing a loaded gun to the head of a fellow police officer was not the result of the employee inartfully trying to complete his work assignment). Matter of Segal-Cotler, 20 NY3d 671, does not require a contrary result. That case was decided on the basis of Education Law § 3028, which differs from Education Law § 3811 in three significant respects: (1) it requires that a school district provide only a defense — not indemnification; (2) it extends the duty to defend to criminal actions and proceedings — which are specifically excluded by Education Law § 3811; and (3) the duty to defend is not specifically conditioned upon the employee having acted in good faith. Moreover, section 3028 relates to discipline of students, and the resort to minor corporal punishment in violation of an applicable regulation in fulfillment of a teacher's duty to maintain classroom order may reasonably be anticipated (id.; see also Matter of Inglis v Dundee Cent. School Dist. Bd. of Educ., 180 Misc 2d 156 [1999]; Matter of Cromer v City School Dist. of Albany Bd. of Educ., 2002 NY Slip Op 50206[U], citing Matter of Inglis). In this case, by contrast, the alleged intentional act of groping or fondling the young student's buttock is a substantial departure from the act of examining the student's knee (see e.g. Matter of Sharrow, 216 AD2d at 846).
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