RJC Realty Holding Corp. v. Republic Franklin Insurance

808 N.E.2d 1263, 2 N.Y. 158, 2 N.Y.3d 158, 22 I.E.R. Cas. (BNA) 245, 777 N.Y.S.2d 4, 2004 N.Y. LEXIS 601
CourtNew York Court of Appeals
DecidedApril 1, 2004
StatusPublished
Cited by32 cases

This text of 808 N.E.2d 1263 (RJC Realty Holding Corp. v. Republic Franklin Insurance) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RJC Realty Holding Corp. v. Republic Franklin Insurance, 808 N.E.2d 1263, 2 N.Y. 158, 2 N.Y.3d 158, 22 I.E.R. Cas. (BNA) 245, 777 N.Y.S.2d 4, 2004 N.Y. LEXIS 601 (N.Y. 2004).

Opinion

OPINION OF THE COURT

R.S. Smith, J.

The issue here is whether a liability insurer is obligated to defend and indemnify its insured, a “beauty salon/health spa,” in an action brought against the insured based on an alleged sexual assault by the insured’s employee. We hold that the alleged assault was an “accident” within the meaning of the policy, and that the policy’s exclusions for injuries expected or intended from the standpoint of the insured and for bodily injury arising out of body massage do not apply. We therefore hold that the insurer is obligated to defend and indemnify.

Facts and Procedural History

Appellant, RJC Realty Holding Corp., doing business as “Pure Maximus Spa/Salon,” obtained an insurance policy including “Businessowners Liability Coverage” from respondent Republic Franklin Insurance Co.1 In the policy, Republic agreed to [162]*162indemnify and defend RJC against claims for “bodily injury”2 caused by an “occurrence” as defined in the policy. “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Two exclusions in the policy are also relevant here. The policy states that it is not applicable to “ ‘[bjodily injury’ . . . expected or intended from the standpoint of the insured” or to “ ‘[b]odily injury’ . . . arising out of . . . [b]ody massage other than facial massage.”

Marie and Thomas Harrison brought an action against RJC and a masseur employed by RJC, alleging that the masseur performed a body massage on Marie Harrison and that Marie Harrison “was the victim of improper sexual contact.” The Harrisons alleged that RJC was liable to them for negligently hiring and retaining the masseur, and for failing properly to supervise his activities.

RJC notified Republic of the alleged sexual assault, and subsequently provided Republic with a copy of the Harrison complaint. Republic responded by disclaiming coverage, relying on the definition of “occurrence” and the two exclusions quoted above.3

RJC sued Republic, seeking a declaratory judgment that Republic was obligated to defend and indemnify RJC in the Harrison action. On cross motions for summary judgment, Supreme Court ruled in RJC’s favor. Supreme Court found the issue under the “expected or intended” exclusion to be controlled by our decision in Agoado Realty Corp. v United Intl. Ins. Co. (95 NY2d 141 [2000]) and stated: “Since the conduct was not intentional on the part of the insured, the exclusion does not apply.” Supreme Court found the issue under the “body massage” exclusion a “closer question,” but decided that question in the insured’s favor also.

On Republic’s appeal, the Appellate Division reversed, holding that the “expected or intended” exclusion applied. In the view of the Appellate Division, the decisive fact was that the Harrison complaint alleged “an intentional sexual assault by [163]*163RJC’s employee,” which the Appellate Division held “falls within the exclusionary language of the policy.” (303 AD2d 573, 574 [2003].) We granted RJC’s motion for leave to appeal, and now reverse the Appellate Division order and reinstate the Supreme Court judgment.

Discussion

A. The “Accident” and “Expected or Intended” Issues

The questions of whether the alleged sexual assault was an “accident” and therefore an “occurrence” within the meaning of the policy, and whether it was excluded from coverage as an act “expected or intended from the standpoint of the insured” are both controlled by Agoado, where we construed a policy containing identical language.

In Agoado, the issue was whether the insurer was required to indemnify its insureds, the landlords of a building, against a claim brought by the estate of a tenant who had been murdered in the building by an unknown assailant. We held that the murder, though obviously intended from the murderer’s point of view, was an “accident” within the meaning of the policy. Relying on Miller v Continental Ins. Co. (40 NY2d 675 [1976]), we said that: “in deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen.” (95 NY2d at 145 [emphasis in original].) Since the landlords in Agoado obviously did not expect or intend the tenant’s murder, we held that it was an “accident” from their point of view. We also held that—as seems self-evident on the facts of Agoado—the murder was not within the policy exclusion for conduct “expected or intended from the standpoint of’ the landlords (id. at 146).

The only significant difference between this case and Agoado is that here the alleged perpetrator of the assault was the insured’s employee. If—as we must assume for present purposes—the assault occurred at all, it was obviously expected and intended by the masseur, and was not an accident from his point of view. Thus, the critical question is whether the masseur’s expectation and intention in committing the assault should be attributed to his employer, RJC.

This question is answered in the negative by our decision in Judith M. v Sisters of Charity Hosp. (93 NY2d 932 [1999]). In that case, a hospital patient sued the hospital for a sexual as[164]*164sault allegedly committed by the hospital’s employee. The patient claimed that the hospital was vicariously liable under the doctrine of respondeat superior. We rejected this contention, saying:

“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment (Riviello v Waldron, 47 NY2d 297, 304). If, however, an employee ‘for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable’ (Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 13). Assuming plaintiff’s allegations of sexual abuse are true, it is clear that the employee here departed from his duties for solely personal motives unrelated to the furtherance of the Hospital’s business (see, Mataxas v North Shore Univ. Hosp., 211 AD2d 762, 763). Accordingly, the courts below properly dismissed plaintiffs respondeat superior cause of action.” (93 NY2d at 933 [emphasis added].)

Under Judith M., the masseur’s alleged act here could not be attributed to RJC for purposes of the respondeat superior doctrine. Here too, if the allegation of sexual abuse is true, the masseur “departed from his duties for solely personal motives unrelated to the furtherance of [RJC’s] business.” We see no reason not to apply the same test to the question of whether the masseur’s expectations or intentions should be attributed to RJC in determining the applicability of Republic’s insurance policy.

The parties here agreed that the policy would cover only an “accident” and would not apply to certain acts “expected or intended” by RJC.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rodriguez v. Madyun
2025 NY Slip Op 30587(U) (New York Supreme Court, New York County, 2025)
The Chapel v. GuideOne Mut. Ins. Co.
2025 NY Slip Op 00580 (Appellate Division of the Supreme Court of New York, 2025)
P.C. v. Driscoll
S.D. New York, 2025
Rizk v. City of New York
E.D. New York, 2020
Graphic Arts Mut. Ins. Co. v. Pine Bush Cent. Sch. Dist.
2018 NY Slip Op 1565 (Appellate Division of the Supreme Court of New York, 2018)
Zanfardino v. City of New York
230 F. Supp. 3d 325 (S.D. New York, 2017)
Brandford v. Singh
136 A.D.3d 726 (Appellate Division of the Supreme Court of New York, 2016)
Hough v. Margulies (In re Margulies)
541 B.R. 156 (S.D. New York, 2015)
Fauntleroy v. EMM Group Holdings LLC
133 A.D.3d 452 (Appellate Division of the Supreme Court of New York, 2015)
Rodriguez v. Judge
132 A.D.3d 966 (Appellate Division of the Supreme Court of New York, 2015)
Jewish Community Center v. Trumbull Insurance
957 F. Supp. 2d 215 (E.D. New York, 2013)
Ostroy v. Six Square LLC
100 A.D.3d 493 (Appellate Division of the Supreme Court of New York, 2012)
K2 Investment Group, LLC v. American Guarantee & Liability Insurance
91 A.D.3d 401 (Appellate Division of the Supreme Court of New York, 2012)
Mears Transportation Group, Inc. v. Zurich American Insurance
660 F. Supp. 2d 1297 (M.D. Florida, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
808 N.E.2d 1263, 2 N.Y. 158, 2 N.Y.3d 158, 22 I.E.R. Cas. (BNA) 245, 777 N.Y.S.2d 4, 2004 N.Y. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rjc-realty-holding-corp-v-republic-franklin-insurance-ny-2004.