The language of an exclusion in a premises liability policy was analyzed by the U.S. District Court in the case of Grasis v. Win Access, Inc., Civil No. 13-1226 (PAD) (D.P.R. Apr. 26, 2017). The case involves a personal injury claim in Puerto Rico brought by several plaintiffs including a student in an exchange program against the Ashford Imperial Apartment Building Association in Condado and other defendants. It arose from a sexual assault a student allegedly suffered by one of the Condominium’s security guards while living in the, Puerto Rico on April 14, 2014.
At the time of the events, the Association was comprised of the owners of the Condominium. It was responsible for the good governance of the building. The University promoting the exchange program leased apartments at the condominium through a third party. The Association contracted with another third party for ‘security and protection services’.
On April 14, 2012, a student was led to the rooftop of the building by a security guard who offered her to see the view of the city. The guard then pushed the student “against a guardrail at the edge of the roof . . .and forcibly raped her.” The guard was subsequently convicted of aggravated rape.
The Association and its insurer MAPFRE were sued. Arguing that the policy excluded abuse and molestation claims, the insurer denied coverage for the incident. The policy at issue stated that it did not apply to “bodily injury, property damage or personal and advertising injury arising out of actual or threatened abuse or molestation “by anyone of any person while in the care, custody or control of the insured” or arising from the “negligent employment, investigation, supervision, reporting or retention of a person for whom the insured is legally responsible”, and whose conduct would be excluded by the abuse or molestation exclusion.
The court ruled that at the time of the events, the student was under the “care, control, and supervision” of the condominium for purposes of the policy exclusion. Plaintiff was not assaulted in her apartment, but on the roof of the building, a communal element that was not susceptible to individual ownership. Thus the exclusion applied. However, the insurer still had an obligation to provide legal representation to the Association because the complaint included other independent claims of liability against the Association including failing to run background checks on the security guards, failing to install cameras and proper lighting on the roof, and making sure that the cameras on the building were working properly.