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Sarah v. Maine Bonding & Casualty Co.1/20/2005
Reporter of Decisions
Argued: November 17, 2004
[ ] Sarah G. and Bianca G. filed this reach and apply action, 24-A M.R.S.A. § 2904 (2000), against Maine Bonding & Casualty Company. Maine Bonding insured the Chalet Motel where one of the motel owners sexually exploited Sarah and Bianca when they were aged thirteen and twelve. They brought an action against the motel and the motel owners for negligence, negligent infliction of emotional distress, and other claims and obtained a stipulated judgment for two million dollars. They then filed this action, and the Superior Court (Androscoggin County, Delahanty, J.) granted a summary judgment to Maine Bonding from which Sarah and Bianca appeal. They contend that the court erred in concluding that their claims in the underlying action fall within the exclusionary language in the insurance policy. We affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
[ ] Martin S. Finley and his wife at the time, Jennifer M. Lewis, owned the Chalet Motel in Lewiston. When Sarah was thirteen years old and her sister Bianca was twelve, Finley paid them and two of their friends to dance and pose nude or partially nude for photographs at the motel and at outdoor locations in the area. At times Finley gave the girls beer and wine coolers and allowed them to spend the night at the motel with false name and age registrations. These events led to Finley's convictions on four counts of sexual exploitation of a minor. 17 M.R.S.A. § 2922(1)(A) (1983).
[ ] Sarah and Bianca brought the underlying action, which included claims of negligence and negligent infliction of emotional distress, against Finley, Lewis, and the Chalet Motel. Maine Bonding had issued a commercial general liability policy to the motel. Lewis notified Maine Bonding of the lawsuit, but it declined to provide a defense. The Superior Court entered a stipulated judgment of two million dollars in favor of the plaintiffs for negligent infliction of emotional distress as to Finley and negligent supervision as to Lewis and the motel.
[ ] Finley, Lewis, and the motel assigned to Sarah and Bianca their claims against Maine Bonding for failure to defend and indemnify them in the suit. Sarah and Bianca brought this reach and apply action to recover the two million dollar judgment, contending that Maine Bonding had a duty under the provisions of the general liability policy to indemnify the motel. Maine Bonding moved for summary judgment on the basis, inter alia, that coverage was excluded under the policy's "abuse or molestation" exclusion. After originally denying the motion, the Superior Court reconsidered and issued a judgment for Maine Bonding holding that the exclusionary clause applied.
II. DISCUSSION
[ ] We review a summary judgment de novo to determine if the prevailing party was entitled to judgment as a matter of law. Lever v. Acadia Hosp. Corp., 2004 ME 35, 2, 845 A.2d 1178, 1179; Johnson v. McNeil, 2002 ME 99, 8, 800 A.2d 702, 704. The parties agree, and the statements of material fact reveal, that there are no genuine issues of material fact.
[ ] The reach and apply statute, 24-A M.R.S.A. § 2904, provides a cause of action to a person who recovers a final judgment against the judgment debtor to reach and apply insurance coverage to satisfy the judgment if (1) the judgment debtor was insured against such liability when the right of action accrued; and (2) the insurer was given notice of such accident, injury, or damage before the recovery of the judgment. Marston v. Merchs. Mut. Ins. Co., 319 A.2d 111, 113 (Me. 1974). It is undisputed that Maine Bonding had notice of the claims against its insured in the
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