AARDVARK CHILD CARE AND LEARNING CENTER, INC. and JOANNE DRINKARD v. MARKEL INSURANCE CO.

CIVIL ACTION NO. 02-0609.United States District Court, E.D. Pennsylvania.
June 23, 2003

MEMORANDUM AND ORDER
JOHN FULLAM, Senior District Judge

On May 20, 2003, I granted summary judgment in favor of the defendant Markel Insurance Company, ruling that it had no obligation to provide a defense to a lawsuit brought against the plaintiffs, charging them with having violated the Americans with Disabilities Act. I noted several reasons for that decision: (1) the events giving rise to the other lawsuit did not constitute an “occurrence,” since no “accident” was involved; (2) these events plainly involved only “intentional” conduct on the part of the insureds; (3) it was doubtful that the other lawsuit sought damages for “bodily injury”; and (4) under the terms of a rider to the insurance policy, claims under the Americans with Disabilities Act were specifically excluded from coverage.

Plaintiffs have now filed a motion for reconsideration, contending that they should be permitted to a file a belated response to the summary judgment motion, because the exclusion referred to in (4) above did not apply in this case.

Plaintiffs, who were sued in the other case, are the owner and a director of a child-care facility. An endorsement to the insurance policy, entitled “Child Care and Teachers Professional Liability” excludes coverage for “Any loss or claim based upon or arising out of discrimination by the `Teacher’ on the basis, age, color, race, sex, creed, religion, national origin, or marital status or violation of any civil rights act or the Americans with Disabilities Act.”

Plaintiffs now assert that neither plaintiff qualifies as a “teacher,” hence the exclusion does not apply. I disagree. The exclusion does, arguably, eliminate claims for “discrimination by the `Teacher'”; but, as a matter of grammatical construction, the exclusion applies also to “any loss or claim based upon or arising out of . . . violation of any civil rights act or the Americans with Disabilities Act.” Were it otherwise, only one “or” would have been appropriate, or “on the basis of” would have been repeated after the words “marital status or . . .”. Stated otherwise, “discrimination by the `Teacher'” is different from “violation of any civil rights act or the Americans with Disabilities Act”; the exclusion applies to both categories.

As noted in my May 20th Memorandum, however, the exclusionary language is not the only basis for granting summary judgment: The events alleged in the complaint against these plaintiffs did not constitute an accident, and all of the actions complained of were plainly intentional. The motion for reconsideration will therefore be denied.

An Order follows.

ORDER
AND NOW, this day of June 2003, upon consideration of plaintiffs’ Motion for Reconsideration of this Court’s Order of May 20, 2003, entering summary judgment in favor of the defendant Markel Insurance Company, IT IS ORDERED:

That the Motion for Reconsideration is DENIED.