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Lopez v. New Mexico Public Schools Insurance Authority2/16/1994
RANSOM, Chief Justice.
The New Mexico Public Schools Insurance Authority appeals from a summary judgment granted in favor of Jose Lopez, David Salazar, and the Board of Education of West Las Vegas School District No. 1 (collectively referred to as the "School District"). The School District sought and was awarded a declaratory judgment that the Insurance Authority was obligated to defend and indemnify the School District in a federal lawsuit in which the parents and next-friend of a student ("M.B.") sued the School District, Joe Page (a principal), and Jose L. Madrid (an elementary special education teacher). Because we cannot say as a matter of law that all of the personal injury claims in the federal lawsuit arose from an act of sexual molestation that was excluded from coverage, we affirm. The Insurance Authority had the duty to defend the federal lawsuit until it could establish in that primary action that the claims for discrimination and civil rights violations were factually supported only by acts connected with sexual misconduct. We need not reach a question of coverage for injunctive relief.
The complaint for which defense is sought. In late 1988 and early 1989, Madrid allegedly sexually molested M.B. The parents of M.B. sued the School District under the doctrine of respondeat superior for numerous torts directly arising from the molestation. They also brought suit for the School District's primary negligence in the hiring, retaining, and supervising of Madrid, for failure to ensure M.B.'s safety and liberty, and for failure to provide an education for M.B., an individual with disabilities. The complaint stated that M.B. was entitled and qualified to receive an education in a special education classroom and to have an Individual Education Program ("IEP") because she is a person who is disabled with borderline intellect. It also alleged that Madrid had neither the ability, the capacity, nor the qualifications to administer and teach children, particularly children of low intellect with disabilities, because he was a pedophile or child molester. The complaint asserted that the School District violated M.B.'s right to a free appropriate public education and did not enforce her IEP, entitling her to damages and to an order that the School District follow an appropriate IEP. Finally, it alleged numerous constitutional rights violations and race discrimination.
The Public Schools Insurance Authority Act. In order to assist school districts in meeting the costs of insurance, the legislature passed the Public School Insurance Authority Act. See NMSA 1978, §§ 22-2-6.1 to -6.10 (Repl. Pamp. 1993). Under powers vested by this Act, the Insurance Authority strives to obtain liability insurance for all school districts while reducing the costs of the coverage by expanding the pool of subscribers and maximizing cost containment opportunities. Section 22-2-6.2. School districts have the right to seek coverage through the Insurance Authority or opt out and seek independent coverage. Section 22-2-6.9. Coverage for commercially uninsurable risks may be provided by the risk management division of the state instead of by the Insurance Authority. NMSA 1978, § 41-4-25(E) (Repl. Pamp. 1989). The Insurance Authority maintains a fund for claims up to $150,000 and has obtained general liability coverage in a master policy in which it is the named insured. The school districts that participate are included in the policy by an errors and omissions endorsement to the master policy. Relevant to this case, the School District thus participates under "Endorsement No. 1."
Page 1 2 3 4 New Mexico Personal Injury Attorneys
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