The Arkansas Court of Appeals on Wednesday upheld a $400,000 award to a former Hermitage High School student who was assaulted by a group of students.
The court rejected an appeal brought by the school district’s insurer, Diamond State Insurance Co., which argued that the policy for the district did not cover this type of assault.
A unanimous panel found Dillion Rippy, who was 17 at the time of the attack, was entitled to the award because the policy’s exclusion for bodily injury was ambiguous.
The policy excluded claims “based on any bodily or mental injury, emotional distress … assault, [or] battery … unless arising out of an employment wrongful act.”
In the lawsuit, Rippy had alleged that the district, located in Bradley County, had been negligent and failed to follow the requirements of its own personnel policies. Among other things, the suit alleged that no teachers or hall monitors were present in the particular building where Rippy was attacked.
The insurance company said the “employment wrongful acts” it envisioned were different from the wrongful acts that the Hermitage School District employees were accused of committing.
It noted that the list of “employment wrongful acts” focused on employment disputes or claims.
The court agreed that the list didn’t include a scenario like the assault on Rippy, but said the omission didn’t matter.
“Although only eight employment-related practices and policies appear in the definition of employment wrongful act, this list is introduced by the word ‘including.’The list therefore is non-exhaustive, resulting in ambiguity as to the meaning of the exclusion and being fairly susceptible to the reasonable interpretation alleged by appellees. The contract is thus to be strictly construed against Diamond State, which wrote the policy, and we affirm the circuit court’s decision that the policy afforded coverage,” Judge Rita Gruber wrote in the seven-page opinion.
On Aug. 20, 2008, Rippy, who is white, was having lunch in an agriculture classroom when he was approached by six black students who accused him of writing a racial slur on a bathroom wall. The group assaulted Rippy while two others kept watch by the door. The attack continued until the school’s maintenance supervisor heard the commotion and intervened.
Rippy went home but was later hospitalized for three days with bleeding on his brain, according to testimony from his father.
Richard Rankin, the superintendent of the district, later testified that the students that participated in the assault were suspended for five days.
Rippy, who is now 22, graduated in 2009 and now works at a paper mill in Arkansas City. He testified that he began suffering from seizures after the assault.
Rippy and his family filed a lawsuit against the school and its insurance company in August 2011 seeking compensation for medical expenses, pain and suffering, mental anguish and all other damages allowed. The lawsuit alleged the district was “negligent in failing to meet the requirements of its own personnel policies,” according to the court’s opinion.
After a hearing on May 1, 2012, Circuit Judge Bynum Gibson dismissed the school district from the lawsuit because it has sovereign immunity under the Arkansas Constitution, but the case against the insurance company was allowed to proceed.
After a trial, the jury found in favor of Rippy and his mother. Rippy was awarded $400,000 and his mother received $6,682, according to an order signed by Gibson.
The insurance company appealed the ruling, arguing that the trial court erred in ruling that the policy provided coverage for Rippy’s injury. Gibson “expansively rewrote the policy” by including coverage that wasn’t in the plain language of the document, the company wrote in court filings.
Gruber wrote in the opinion that the court would recognize the plain language of the policy if the language was unambiguous, but found that it was ambiguous.
In a concurring opinion, Judge Bill Walmsley wrote that he didn’t believe that it was the insurance company’s intention to establish a general-liability policy for the district but that he had to agree with the lower court’s ruling.
“Unfortunately, the exclusion here was ambiguous, and thus appellees’ personal-injury claims were not plainly excluded. Because we construe such exclusions in favor of coverage, I have no choice but to affirm,” Walmsley wrote.
Brian Brooks, a Greenbrier attorney who represented the family in the appeal, said that during his work on the case, he saw it was “readily apparent that the injury had caused [Rippy] some significant problems,” including the seizures and difficulty performing some physical activities. Brooks said he was “extremely pleased” with the court’s ruling.
“I’m very happy for Dillion and his mom,” Brooks said.
Michael Vandiford, a Little Rock attorney for the insurance company, was out of town and did not return a phone message left at his office.
Arkansas, Pages 9 on 02/27/2014