[00:00:00] Speaker 03:
It is 25-7009 Brown v. Flowers.

[00:00:05] Speaker 03:
Mr. Capron.

[00:00:07] Speaker 02:
Thank you.

[00:00:08] Speaker 02:
May it please the court.

[00:00:11] Speaker 02:
I have a fundamental factual proposition that I want to start my argument with that I think is undeniable in this case, and that is that the policy that we're dealing with in this case

[00:00:24] Speaker 02:
absolutely provides coverage for some sexual misconduct claims.

[00:00:29] Speaker 02:
The reason I think that's important to start with is because both rationales that the trial court gave for denying coverage in this case presume that all sexual misconduct claims are not covered or that there is no coverage.

[00:00:42] Speaker 02:
In fact, that's also the underlying factual presumption of the argument made by the garnashee in this case.

[00:00:50] Speaker 02:
The fact of the matter is the policy is very clear that some sexual misconduct claims are absolutely covered, not just for a duty to defend, but a duty to indemnify.

[00:01:02] Speaker 02:
I'm referring specifically to the appendix, page 227, which is where you find the exclusion 38.

[00:01:08] Speaker 02:
Exclusion 38 separates

[00:01:12] Speaker 02:
both the duty to defend and the duty to indemnify, and specific as to sexual misconduct claims, says that there is coverage for sexual misconduct claims.

[00:01:22] Speaker 02:
There's both a duty to defend and, after liability is found, there is a duty to indemnify.

[00:01:27] Speaker 02:
That's subparagraph three of exclusion 38.

[00:01:31] Speaker 02:
38 says, ACOSIG will indemnify a plan member for liability arising in connection with a sexual misconduct claim unless two things are found.

[00:01:43] Speaker 02:
And I'm going to come back to those two things.

[00:01:46] Speaker 02:
Again, the fundamental first proposition I want to establish is that there is coverage for some sexual misconduct claims.

[00:01:52] Speaker 02:
And in this particular case, even coverage after a verdict and judgment are entered and liability is found.

[00:02:01] Speaker 02:
If you look at the trial court's order, the trial court started with saying Mr. Flowers was not a plan member because he fell outside of the scope of his duties.

[00:02:11] Speaker 02:
And he said as a separate matter, if it was a plan member, this exclusion 38 applies to exclude coverage.

[00:02:18] Speaker 02:
In both scenarios, the trial court assumed

[00:02:22] Speaker 02:
that action, that the fact that this was what he called a sexual misconduct claim necessarily meant that Flowers was not insured.

[00:02:33] Speaker 02:
Specifically, if you look at page three, or excuse me, page five of the order, the trial court is finding that Flowers was not

[00:02:46] Speaker 02:
a planned member because sexual misconduct claims cannot be covered under the policy.

[00:02:52] Speaker 02:
There wasn't a finding of any of the things that would trigger

[00:02:56] Speaker 02:
scope of duties analysis.

[00:02:57] Speaker 02:
In fact, the trial court expressly recognized that there was no jury finding on any of those issues.

[00:03:04] Speaker 02:
It wasn't just that there was no jury finding.

[00:03:06] Speaker 02:
This court, in a prior appeal, found that summary, that was appeal 23-7006, this court found that summary judgment was properly awarded on punitive damages because there can't be

[00:03:22] Speaker 02:
such misconduct that would constitute criminal, fraudulent, malicious, reckless conduct, all the things that would take him outside of the course and scope of his duties according to the policy language.

[00:03:31] Speaker 00:
Well, he pled guilty to two counts of rape, right?

[00:03:36] Speaker 02:
Neither of which requires force.

[00:03:38] Speaker 02:
That's correct.

[00:03:38] Speaker 00:
Well, you don't have to have force under the policy.

[00:03:42] Speaker 02:
In this particular case, the claim that's at issue is not a rape case.

[00:03:46] Speaker 02:
It's an excessive force claim.

[00:03:49] Speaker 02:
And that's the distinction that I'm trying to make.

[00:03:52] Speaker 02:
He absolutely did plead guilty to those two counts.

[00:03:54] Speaker 02:
And neither one of them, of course, was relevant to the determination of liability in this case, as the judge instructed the jury.

[00:04:02] Speaker 00:
Well, the inmate cannot consent, right?

[00:04:09] Speaker 00:
So it's rape.

[00:04:11] Speaker 02:
That's not the way the case was presented to the jury.

[00:04:13] Speaker 02:
It was presented to the jury in this case based on consent being a pure defense.

[00:04:17] Speaker 02:
That's why I think the trial judge instructed the jury in our case.

[00:04:21] Speaker 00:
Well, you've got two cases.

[00:04:22] Speaker 00:
You're talking about the civil case versus the criminal case, right?

[00:04:26] Speaker 02:
That's correct.

[00:04:27] Speaker 00:
OK.

[00:04:27] Speaker 00:
In the criminal case, he pled guilty to two counts of rape that require non-consensual sex.

[00:04:37] Speaker 02:
I beg your pardon?

[00:04:38] Speaker 00:
that he had to have non-consensual sex.

[00:04:41] Speaker 02:
And by statute- I don't believe consent was an issue in that case.

[00:04:45] Speaker 00:
By statute, under Oklahoma law, she could not consent.

[00:04:50] Speaker 00:
If it were consensual, how could he plead guilty to rape?

[00:04:54] Speaker 02:
Because I believe the statutory elements make just the fact of intercourse liability.

[00:04:59] Speaker 00:
Yeah, because she can't consent as a matter of law in Oklahoma.

[00:05:06] Speaker 02:
In the criminal case, that may have been the matter, but in the civil case that we're here on, that is not the way it was presented to the jury.

[00:05:12] Speaker 02:
The judge presented this with consent being a pure defense.

[00:05:16] Speaker 00:
You're not here on that civil case.

[00:05:18] Speaker 00:
You're here on a garnishment proceeding to collect under the insurance policy.

[00:05:25] Speaker 00:
And so both of those cases are relevant here.

[00:05:29] Speaker 02:
I don't believe that the criminal case.

[00:05:32] Speaker 02:
I don't believe that the criminal case is relevant because it didn't change the risk profile in this case for the for the garnashee.

[00:05:39] Speaker 02:
There's nothing about the admission by flowers or any conviction by guilty plea that changed any of the issues for the insurance company in this case.

[00:05:48] Speaker 02:
Their liability was the same with and without the finding in that case.

[00:05:53] Speaker 02:
And that's exactly what the trial court instructed the jury on in this case that it didn't matter.

[00:05:59] Speaker 00:
So the garnet wasn't a ju pardon?

[00:06:04] Speaker 00:
Do you think ther case that that is before

[00:06:10] Speaker 02:
The case before us that I'm referring to is the case in which Flowers was found guilty and now we're seeking to, or liable for a 14th Amendment violation and now we're seeking coverage for that.

[00:06:22] Speaker 02:
I think that case is the same as the one that we're bringing this garnishment action within.

[00:06:28] Speaker 02:
So I'm addressing the garnishment action and the civil action as one because the civil action only looks at the liability of the garnishee in the civil case.

[00:06:41] Speaker 02:
Going back to my point, the policy clearly provides that there are sexual misconduct claims where coverage exists.

[00:06:49] Speaker 02:
The trial judge found that because there's sexual misconduct, that necessarily takes Flowers outside of the scope of his duties.

[00:06:58] Speaker 02:
That cannot be the case.

[00:06:59] Speaker 02:
That's an untenable position under the policy, the plain language of the policy.

[00:07:04] Speaker 00:
The policy- Pointing to the plain language that says,

[00:07:08] Speaker 00:
I mean, the scope of the duties that I'm looking at on says it shall not include any dishonest, criminal, fraudulent, bad faith, reckless, wanton or malicious act.

[00:07:19] Speaker 00:
Well, we know he committed a criminal act committed to criminal acts, right?

[00:07:25] Speaker 02:
Not he pled guilty to them, yes, but the jury.

[00:07:29] Speaker 00:
Well, you can't accept a guilty plea unless you do a colloquy that gives the court a factual basis.

[00:07:36] Speaker 00:
to accept the plea.

[00:07:37] Speaker 00:
He pled guilty to two criminal acts of rape.

[00:07:42] Speaker 02:
And that didn't change anything under the insurance policy.

[00:07:44] Speaker 02:
That's true, but it didn't change anything under the insurance policy.

[00:07:48] Speaker 00:
The insurance policy, the judge says it shall not include any criminal act.

[00:07:56] Speaker 02:
That's not what the insurance company is asked to indemnify here for.

[00:07:58] Speaker 02:
They're asked to indemnify pursuant to the plain language of their policy for the civil liability in the civil case that was tried to a jury and liability found without regard to the criminal matter.

[00:08:11] Speaker 02:
The criminal matter stands, no matter how similar the parties are and the issues were, stands separate from this civil case.

[00:08:19] Speaker 02:
And that's exactly what the trial judge instructed the jury.

[00:08:22] Speaker 02:
The trial judge said that they are not finding guilt or innocence in that case and that is not controlling of any issue in this case.

[00:08:30] Speaker 00:
Well, that is true, that it wasn't.

[00:08:33] Speaker 00:
It doesn't change the fact that with respect to the same set of factual circumstances, this man pled guilty to two counts of criminal rape, which are specifically excluded under this policy.

[00:08:54] Speaker 02:
They are only excluded under this policy if

[00:08:59] Speaker 02:
Section 38 sub 3 applies, and it doesn't.

[00:09:03] Speaker 02:
It doesn't apply because Section 38 sub 3 specifically says that even in light of sexual misconduct— Well, why don't you read it instead of paraphrase it?

[00:09:12] Speaker 02:
—ACOSIG will provide a def— I'm sorry, that was sub 2.

[00:09:15] Speaker 02:
—ACOSIG will indemnify a plan member for liability arising in connection with a sexual misconduct claim.

[00:09:23] Speaker 02:
unless a final adjudication establishes or the plan member admits.

[00:09:29] Speaker 02:
goes on to the sexual abuse claim.

[00:09:32] Speaker 02:
And that's why I'm saying, yes, he pled guilty in that case.

[00:09:35] Speaker 02:
But no, it didn't affect this particular insurance policy or the application of this insurance policy to the civil matter.

[00:09:43] Speaker 02:
And it didn't because this policy clearly provides coverage to some people who are guilty of sexual misconduct claims.

[00:09:51] Speaker 00:
It specifically says we'll cover an employer from an allegation of sexual

[00:09:58] Speaker 00:
harassment by an employee, right?

[00:10:01] Speaker 02:
It says plan member, not employer.

[00:10:04] Speaker 02:
And that's what I was getting at.

[00:10:06] Speaker 00:
Yeah, but that's an employee employee and says we cover that, but we don't cover this.

[00:10:11] Speaker 00:
And it's got, you know, you're focusing on one.

[00:10:14] Speaker 00:
There's

[00:10:16] Speaker 00:
a bunch of the hurdles for you.

[00:10:18] Speaker 00:
One is, is it in the scope of his duties?

[00:10:21] Speaker 00:
If it's in the scope of his duties, then you have to go to the exclusions.

[00:10:25] Speaker 00:
And you're focusing on one of those exclusions.

[00:10:28] Speaker 00:
What about the law enforcement exclusion?

[00:10:33] Speaker 02:
I don't believe that's an exclusion that was found by the trial judge or that this policy.

[00:10:37] Speaker 00:
It doesn't have to be found by the trial judge.

[00:10:39] Speaker 00:
It's a separate provision of the contract that says, we don't cover this.

[00:10:46] Speaker 00:
It doesn't have, you're trying to import language from one provision into a different provision.

[00:10:52] Speaker 00:
It says nothing about that there in the law enforcement exclusion.

[00:10:56] Speaker 02:
Well, respectfully, I'm not trying to import language.

[00:10:58] Speaker 02:
I was trying to start where you started with the plan member analysis.

[00:11:01] Speaker 02:
And the plan member analysis is you are not excluded from being a plan member because you engaged in sexual misconduct.

[00:11:09] Speaker 02:
If we assume that he did engage in sexual misconduct, and this is a sexual misconduct claim, the trial judge found that automatically removes him from plan member status.

[00:11:18] Speaker 02:
It doesn't.

[00:11:18] Speaker 02:
It cannot.

[00:11:19] Speaker 02:
That's an untenable position under a policy that goes on to say that plan members are still covered.

[00:11:25] Speaker 02:
provided that they don't make an admission of their guilt or have an adjudication of their guilt.

[00:11:32] Speaker 02:
And while I recognize that he did have a guilty plea in this case, I don't believe that that was something that changed the risk profile of the insurance company or the apportionment of the risk such that this policy then became ineffective.

[00:11:45] Speaker 02:
I think when this policy says

[00:11:47] Speaker 02:
that the admission or the guilty plea has to be found.

[00:11:51] Speaker 02:
It has to be something that affects the insurance company's interest, and it didn't in this case.

[00:11:56] Speaker 00:
It didn't in this case because... It's not the insurance company's interest.

[00:12:01] Speaker 00:
It's the application of the contract terms.

[00:12:07] Speaker 00:
This is a contract.

[00:12:09] Speaker 02:
That's right.

[00:12:11] Speaker 00:
Cover what they contracted to cover and they didn't cover what they contracted not to cover.

[00:12:17] Speaker 00:
So I agree with their risk profile is irrelevant.

[00:12:21] Speaker 01:
It's why don't the meaning of the contract?

[00:12:26] Speaker 00:
What does the language on the page mean?

[00:12:28] Speaker 00:
That's what we're looking.

[00:12:30] Speaker 02:
The language on the page says that there are sexual misconduct claims that are covered.

[00:12:35] Speaker 02:
That's the plain language.

[00:12:36] Speaker 00:
And that may be true, but they aren't covered if you're a law enforcement personnel and you rape an inmate.

[00:12:46] Speaker 02:
They are if that is not subject to an admission or an adjudication.

[00:12:51] Speaker 02:
And the adjudication in this case is not the finding of liability in the civil matter.

[00:12:57] Speaker 02:
It has to be an adjudication of something else.

[00:12:59] Speaker 02:
And we know that because the plain language of 38 sub 3 says that there is going to, even if you're found guilty or liable for sexual misconduct, there's still going to be a duty to indemnify by the insurance company.

[00:13:11] Speaker 02:
It's plain language.

[00:13:13] Speaker 02:
And that language complies.

[00:13:15] Speaker 03:
Under your interpretation of the insurance policy, any type of sexual conduct up to and including rape are covered by the policy absent an admission and a plea of guilty in a criminal case to rape is not an admission for purposes of the insurance contract.

[00:13:36] Speaker 02:
That's exactly correct.

[00:13:38] Speaker ?:
Okay.

[00:13:39] Speaker 02:
And I'm saying that because the plain language says that even if you engage in what the policy defines as sexual misconduct, there's still coverage unless you have the admission of liability or the finding of guilt.

[00:13:53] Speaker 02:
And in this particular case, even though I believe it's undisputed that there was a plea bargain in the criminal case, I don't believe that was anything that changed the insurance companies

[00:14:05] Speaker 02:
acceptance of risk vis-a-vis the civil action in this case where Flowers was indemnified.

[00:14:10] Speaker 02:
And that's why I believe that there's coverage.

[00:14:13] Speaker 02:
Why doesn't the guilty plea count as an admission again?

[00:14:17] Speaker 02:
Because as the trial court instructed the jury in this case, it was irrelevant to this case.

[00:14:21] Speaker 02:
It was not something that they can use as evidence in this case.

[00:14:27] Speaker 02:
I'd like to reserve the remainder of my time, if possible.

[00:14:29] Speaker 03:
All right.

[00:14:30] Speaker 03:
Let's hear from Mr. Rice.

[00:14:33] Speaker 04:
Your honors, thank you.

[00:14:35] Speaker 04:
Doug Rice and Pete Serrata on behalf of the Association of County Commissioners Self-Insurance Group, the Garnashee and Appellee in this case.

[00:14:45] Speaker 04:
So this case, as the court is aware, involves the determination of coverage of an insurance policy, which in this case is called a liability coverage agreement.

[00:14:56] Speaker 04:
We're not here to retry the underlying case.

[00:15:00] Speaker 04:
We're not here to retry Mr. Flower's plea of guilt to Ray.

[00:15:06] Speaker 04:
But the insurance coverage issue before the court is whether the sex between a jailer and a detainee, be it consensual or non-consensual, is covered by the terms and conditions of this particular insurance policy.

[00:15:23] Speaker 04:
We believe that the district court's finding that it was not covered is correct and it should be affirmed.

[00:15:28] Speaker 04:
So when we look at this case, there's just a few facts that I think resolve this issue, this coverage issue before the court.

[00:15:36] Speaker 04:
First, the conduct which is at issue before the court involves sex.

[00:15:41] Speaker 04:
This is a fact.

[00:15:43] Speaker 04:
There's no dispute between Ms.

[00:15:46] Speaker 04:
Brown or Mr. Flowers that this case involves sex.

[00:15:51] Speaker 04:
In Flower's answer to the complaint in this case, which is at appendix page 20, he says that he admits only that he was charged with and pled guilty to second degree rape for having consensual sexual intercourse with a detainee.

[00:16:09] Speaker 04:
And then in his affirmative defenses, now to page 22, he makes clear that his defense to Brown's allegations is that

[00:16:18] Speaker 04:
plaintiff, who is Brown, consented to the sexual encounter with defendant Flowers.

[00:16:23] Speaker 04:
So Mr. Flowers admits that that conduct of sex did in fact occur.

[00:16:31] Speaker 04:
And for her part, Mrs. Brown, in the pre-trial conference order, when she reflected what she believed were the admitted or stipulated facts, and I'm not gonna read them all, but she said, Flowers engaged in the challenged governmental actions of causing the removal of Ms.

[00:16:50] Speaker 04:
Brown's clothes and the raping of Ms.

[00:16:52] Speaker 04:
Brown, and that Flowers admitted his actions were intentional.

[00:16:57] Speaker 04:
I would also point out that in her brief to this court, to the 10th Circuit Court of Appeals in case number 237006, which is a case where Brown appealed some certain findings by the district court, that in her statement of the case, she used the term rape or rapist no less than 37 times to describe the conduct at issue in her case.

[00:17:24] Speaker 04:
Further, the entire case at trial was whether the sex between her and Flowers, who's the jailer, was consensual or non-consensual.

[00:17:32] Speaker 04:
The court in instruction number 11 instructed the jury that the jury was to find that if they found that the defendant

[00:17:43] Speaker 04:
coerced plaintiff to engage in sexual intercourse with him, that that was sufficient to show an objective harm that violated his plaintiff's 14th Amendment rights.

[00:17:53] Speaker 04:
And alternatively, if they found that plaintiff and defendant engaged in consensual sexual intercourse, you may not find that plaintiff's 14th Amendment rights were violated.

[00:18:03] Speaker 04:
That's at page 66.

[00:18:05] Speaker 04:
As the court is aware, the jury did find in favor of Brown and awarded her compensatory damages of $75,000.

[00:18:12] Speaker 04:
But regardless of how the plaintiff tries to characterize this now for purposes of coverage, the fact remains that the conduct, the underlying conduct that's at issue in this case was entirely founded upon sex between Flowers, a jailer, and Brown, who was a detainee.

[00:18:33] Speaker 04:
There's no ambiguity or uncertainty in that fact.

[00:18:37] Speaker 00:
The second fact that is, can you tie this all these facts that we already know?

[00:18:42] Speaker 00:
Can you tie it to the language of the policy and tell me what your argument is?

[00:18:47] Speaker 00:
Are you saying it doesn't fall within the scope of his duties?

[00:18:50] Speaker 00:
Are you saying that it's excluded?

[00:18:52] Speaker 00:
What is your argument?

[00:18:54] Speaker 04:
There are several arguments.

[00:18:55] Speaker 04:
And that second fact, of course, as you pointed out, Judge McHugh, is that he pled guilty to rape.

[00:19:01] Speaker 04:
He doesn't deny that.

[00:19:03] Speaker 04:
He admits that in the pleadings in this case.

[00:19:05] Speaker 04:
And that's not something that was ever disputed.

[00:19:08] Speaker 04:
So I think in terms of tying that to provisions in the policy, there's a couple of provisions that I think are important.

[00:19:18] Speaker 04:
First,

[00:19:20] Speaker 04:
Someone like Flowers, an employee of Pontotoc County, who is, it's important to note, this is an insurance pool.

[00:19:27] Speaker 04:
This is an insurance pool where 73 counties or 74 counties in Oklahoma have gotten together to pool their liability.

[00:19:37] Speaker 04:
They are our

[00:19:38] Speaker 04:
both insureds and insurers, they write the policy terms.

[00:19:44] Speaker 04:
This is not your typical insurance company.

[00:19:47] Speaker 04:
This is an Interlocal Cooperation Act where they pool those reserves.

[00:19:51] Speaker 04:
So I think that's important because Pontotoc County, who was Mr. Flowers' employer, participated and helped to write this policy.

[00:20:02] Speaker 04:
So this reflects the intent of all of our members, including Pontotoc County.

[00:20:07] Speaker 04:
When you're looking at getting to your question, Judge McHugh, the policy provisions, it does provide coverage for someone like Flowers, but only if they are performing and acting within the scope of their duties.

[00:20:24] Speaker 00:
Okay.

[00:20:24] Speaker 00:
So your first argument is that it doesn't fall within the scope of his duties.

[00:20:28] Speaker 04:
Correct.

[00:20:29] Speaker 04:
That's a defined term under the coverage agreement.

[00:20:32] Speaker 04:
And under the definitions of the coverage agreement, it requires an employee to be acting in good faith in the performance of their duties or tasks lawfully assigned to them.

[00:20:42] Speaker 00:
If he's committing a criminal act, it's not covered, right?

[00:20:48] Speaker 00:
It's not within the scope of his duties.

[00:20:49] Speaker 04:
It's not within the scope of his duties.

[00:20:51] Speaker 04:
He wouldn't be a covered plan member.

[00:20:53] Speaker 04:
And that definition even goes on.

[00:20:55] Speaker 04:
If you look at that definition, it further makes it clear that not only do they have to be acting in good faith in the performance of their duties, but it then goes on to say scope of duties shall not include

[00:21:10] Speaker 04:
dishonest, criminal, fraudulent, bad faith, reckless, wanton, or malicious acts.

[00:21:15] Speaker 04:
Then it goes on to also say any act that results in a claim of alleged sexual abuse will under no circumstances be deemed to further the interest of a planned member.

[00:21:29] Speaker 04:
So not only do they have to be acting in good faith, but there are specific provisions that would take Mr. Flower's conduct out of

[00:21:38] Speaker 04:
him being covered as a plant member.

[00:21:41] Speaker 03:
Could you rebut Mr. Capron's interpretation that he never made an admission that would be relevant for contract interpretation purposes?

[00:21:53] Speaker 04:
Well, he has made that admission.

[00:21:56] Speaker 04:
He had made that admission in the pleadings on file in this case.

[00:22:00] Speaker 04:
He admits that he was charged with rape.

[00:22:03] Speaker 04:
He admits he engaged in sexual intercourse with Ms.

[00:22:07] Speaker 04:
Brown.

[00:22:08] Speaker 04:
Ms.

[00:22:08] Speaker 04:
Brown contended that was the entire case.

[00:22:11] Speaker 04:
Ms.

[00:22:11] Speaker 04:
Brown contended that they engaged in sexual intercourse, but that it was non-consensual.

[00:22:17] Speaker 04:
The entire case was consent versus non-consent.

[00:22:20] Speaker 04:
That was the civil case.

[00:22:22] Speaker 00:
But when you're looking at what about the criminal case, does the criminal case have relevance to the duties?

[00:22:28] Speaker 04:
Absolutely, it does.

[00:22:29] Speaker 04:
We're not limited when we're looking at coverage.

[00:22:33] Speaker 04:
We're not limited to simply the precise issues that were addressed in the underlying case.

[00:22:40] Speaker 04:
We are able to look at.

[00:22:42] Speaker 04:
all relevant information and factual information.

[00:22:45] Speaker 04:
There's no case that says that in looking and interpreting an insurance policy and coverage, you're limited to an underlying case.

[00:22:54] Speaker 04:
If that were the law, we would see insurance companies intervening in these types of cases all the time to protect their interest and litigating issues that had nothing to do with the underlying case.

[00:23:07] Speaker 00:
So is there a definition of sexual misconduct claims in the policy?

[00:23:13] Speaker 04:
There is a definition of sexual misconduct.

[00:23:16] Speaker 00:
There's a long list of things.

[00:23:20] Speaker 00:
Any sexual act that results in damage, it's considered sexual misconduct, right?

[00:23:26] Speaker 04:
Correct.

[00:23:27] Speaker 00:
And here damages were awarded for

[00:23:31] Speaker 04:
this sexual misconduct right yes as a result of the violation of brown's uh 14th amendment rights so that would be another reason it doesn't fall within the scope that correct sexual abuse and sexual misconduct is defined in the in the policy at definition 33 it is a very broad definition

[00:23:53] Speaker 04:
it lists not only does it say that any type of attempted or alleged sexual act by any person or any person's

[00:24:03] Speaker 04:
which causes physical and many mental injuries to anyone will not be covered.

[00:24:08] Speaker 04:
But it says it lists sexual harassment by non-employees, sexual humiliation, sexual advances of any kind, rape, and any other sexual act or alleged sexual injury.

[00:24:21] Speaker 00:
Very broad.

[00:24:26] Speaker 00:
You can't interpret the policy that way because it does cover some.

[00:24:32] Speaker 00:
sexual misconduct claims?

[00:24:35] Speaker 00:
Well, how do you respond?

[00:24:38] Speaker 04:
Sure, it would cover, and I think it even says that in the definition, that it doesn't include sexual harassment claims.

[00:24:43] Speaker 04:
Sexual harassment claims to the extent that maybe some type of sexual abuse claim or sexual misconduct is going, well, could be covered in some instances.

[00:24:53] Speaker 04:
Obviously, just like this case, it's a fact by fact basis, but there could be that type of coverage.

[00:25:00] Speaker 04:
But what I think is clear is that when you're talking about.

[00:25:06] Speaker 04:
The act of sects between a jailer and a detainee that results in statutory rate that.

[00:25:15] Speaker 04:
I can't.

[00:25:16] Speaker 04:
there's no real colorable argument that ACO SIG and its member of Pontotoc County ever intended for that to be considered within the scope of a jailer's duties and is gonna be covered by their insurance pool.

[00:25:33] Speaker 04:
And that, in addition to those definitions, there are also, if you take it outside of the definitions of scope of duty, sexual abuse, there are exclusions in this case.

[00:25:46] Speaker 04:
So the exclusions, and I'll just touch on those briefly, that I think would be most applicable are going to be exclusion 34 that excludes any loss in which the name, plan, member, its employee, or its volunteer has acted outside the scope of duties or in a grossly negligent, willful, wanton, malicious, or reckless manner.

[00:26:09] Speaker 04:
And importantly, that applies to

[00:26:12] Speaker 04:
all liability coverages under that agreement.

[00:26:15] Speaker 04:
It's not limited to certain types of coverages.

[00:26:18] Speaker 04:
It applies to all of them.

[00:26:20] Speaker 04:
And then, of course, the sexual acts exclusion, exclusion number 38, which is a very broad exclusion that includes any claims or alleged losses and damages arising out of, related to, or derived from any sexual abuse

[00:26:37] Speaker 04:
if a final adjudication establishes or the plan member admits that the plan member participated in the sexual abuse.

[00:26:45] Speaker 04:
One, I think that makes it unmistakably clear that ACCO SIG and its member of Pontotoc County intended to exclude this type of conduct, but also that

[00:26:58] Speaker 04:
it intended to exclude not only something that had been finally adjudicated like we have here with the plea of guilt for the statutory rape, but also if someone admits that they entered into that conduct.

[00:27:14] Speaker 04:
And here we have Flowers admitting that he had sex when he was a jailer and she was a detainee, he admitted that they had sex.

[00:27:25] Speaker 00:
So- And his argument is he didn't admit

[00:27:27] Speaker 00:
that it was non-consensual and therefore it doesn't fall under him admitting to sexual abuse.

[00:27:35] Speaker 00:
Can you deal with that?

[00:27:36] Speaker 04:
Yeah, the policy, we're constrained to the written language in the policy.

[00:27:42] Speaker 04:
And that's how the court is to interpret this, that the way the policy is written and it's expressed ordinary terms, the policy makes no distinction between consensual or non-consensual sex.

[00:27:54] Speaker 04:
If a jailer has sex, whether it's consensual or non-consensual, with a detainee, and that detainee asserts a claim, like happened here, then that is not going to be covered by this policy.

[00:28:10] Speaker 00:
And you're looking at the law enforcement exclusion?

[00:28:13] Speaker 04:
Well, I'm looking at the general exclusion number 38,

[00:28:18] Speaker 04:
that would apply.

[00:28:20] Speaker 04:
It doesn't matter.

[00:28:21] Speaker 04:
You don't see a requirement that says that they have to admit that it was non-consensual.

[00:28:29] Speaker 04:
Under the definition of sexual abuse, it's the conduct itself.

[00:28:34] Speaker 04:
It's the act itself.

[00:28:36] Speaker 04:
It's not whether or not there was consent.

[00:28:40] Speaker 04:
And of course, Judge McHugh, as you pointed out, there can't be consent in this type of situation.

[00:28:46] Speaker 04:
But

[00:28:47] Speaker 04:
Neither the definition nor the exclusion make any reference to consent and say that we're going to cover consensual sex between a jailer and a detainee.

[00:28:58] Speaker 04:
It's the act itself.

[00:29:00] Speaker 04:
And that act itself is not in dispute in this case.

[00:29:04] Speaker 00:
Well, before you run out of time, will you touch on the law enforcement exclusion?

[00:29:08] Speaker 00:
Because that one is just completely plain that this isn't covered.

[00:29:14] Speaker 04:
It is, Your Honor.

[00:29:16] Speaker 04:
And, you know, quite frankly, there's so many, you know, when we look at this, we believe there are so many exclusions that would apply in here.

[00:29:25] Speaker 04:
But yes, the law enforcement exclusion found on page 38 of the policy also provides that we don't have any obligation to pay or even defend

[00:29:37] Speaker 04:
a claim brought about or contributed to by any criminal, dishonest, fraudulent, bad faith, reckless, malicious, wanton, or intentional act brought about or contributed to by any conduct in which the plan member deliberately violated or had knowledge of or consented to the violation of any federal, state, or local statute, ordinance, rule, or regulation.

[00:30:02] Speaker 03:
Why don't you go ahead and wrap up?

[00:30:03] Speaker 04:
Yes, for these reasons, your honor.

[00:30:06] Speaker 04:
And it's member Pontotoc County never intended agreed.

[00:30:14] Speaker 04:
or plans to cover any type of this type of sexual misconduct or abuse, we believe that the district court's order should be affirmed.

[00:30:24] Speaker 04:
Thank you.

[00:30:24] Speaker 03:
Thank you, Mr. Kaepernick.

[00:30:25] Speaker 03:
I think you had some rebuttal time.

[00:30:27] Speaker 02:
Thank you, Your Honor.

[00:30:28] Speaker 02:
The fact of this being a sexual abuse claim does not take it outside of the context of Flowers being a plan member.

[00:30:35] Speaker 02:
He was.

[00:30:36] Speaker 02:
Even though he committed sexual or sexual misconduct, he is still a plan member, contrary to what the court said.

[00:30:42] Speaker 02:
Plan members don't get excluded simply because they commit sexual misconduct as proven by the fact of 38 sub 3 saying that some sexual conduct is covered.

[00:30:54] Speaker 02:
Sexual misconduct, I beg your pardon.

[00:30:56] Speaker 02:
This law enforcement exclusion only applies to one form of coverage.

[00:30:59] Speaker 02:
There are multiple other coverages that apply that that exclusion has no bearing on, and we didn't even argue the law enforcement coverage.

[00:31:06] Speaker 02:
That exclusion does not exclude general matters in this case.

[00:31:11] Speaker 02:
ACOSIG did, in fact, recognize their duty after the plea bargain by defending flowers,

[00:31:18] Speaker 02:
And throughout the case, and even after the verdict in this case, they continue to defend him, recognizing that they do have duties in this particular case.

[00:31:26] Speaker 02:
They are not dispelled or done away with simply because he engaged in sexual misconduct or entered a plea bargain.

[00:31:33] Speaker 03:
All right, counsel, thank you.

[00:31:34] Speaker 03:
We appreciate your arguments.

[00:31:36] Speaker 03:
You're both excused and the case is submitted.