FAYETTEVILLE -- Lawyers for the Springdale School District contend their insurer has a duty to defend the district in a federal lawsuit filed by a former student who says she was sexually abused by a school employee and nothing was done about it.
They filed a counter-suit Wednesday asking a judge to order the insurer to defend the district and its employees and pay any damages assessed.
Berkley Assurance Co. filed a complaint for declaratory judgment naming Springdale Public Schools, Mark Oesterle, Joseph Rollins and Alissa Cawood as defendants.
Cawood filed a lawsuit against the School District, Oesterle and Rollins last year claiming she was groomed and assaulted by Oesterle and Rollins and the district knew about the abuse but did nothing to stop it. Oesterle, Rollins and the district have denied wrongdoing and asked the lawsuit be dismissed.
Cawood alleges Springdale hired Oesterle as an assistant principal in 2014. He was first employed at Har-Ber High School, then at the Tyson School of Innovation, a Springdale public high school. Cawood claims during her time there, Oesterle engaged in grooming behavior toward her, culminating in a pattern of sexual harassment, molestation, sexual assaults and violations of bodily integrity.
Oesterle's inappropriate interest in Cawood allegedly began in August 2015 and continued in 2016, including many instances of sexual assault on campus, according to Cawood's lawsuit. Oesterle pleaded guilty to groping Cawood. The lawsuit seeks damages for emotional suffering and mental anguish, shame, humiliation, medical expenses for physical ailments, counseling and therapy and expenses related to such treatment.
Berkley Assurance argues multiple exclusions apply barring coverage for losses involving the actual, alleged or threatened abuse or molestation by school employees of any person while they're in the care, custody or control of the district.
The firm also claims it's excluded from losses involving the negligent employment, investigation, supervision or retention of any employee alleged to have abused or molested any person while in the care, custody or control of any school employee; or, the failure of any employee to report abuse or molestation when required to do so.
"This exclusion excludes any indemnity for a judgment against all of the defendants and excludes any duty to defend Rollins or Oesterle," according to Berkley's filing.
There is also an exclusion involving damages arising from bodily injury, emotional distress or mental anguish, according to the insurance company.
Berkley argues there's also an exclusion barring claims involving assault.
Finally, the insurance carrier contends the exclusions mean it doesn't have to pay for any award of attorney's fees, costs or expenses that might be made in the lawsuit.
The insurance policy provides the school liability coverage subject to a limit of $1 million per claim or an annual aggregate of $1 million.
Oesterle filed a response earlier generally denying the insurance company's claims.
The School District and Rollins filed their response and counter-claim alleging breach of contract Wednesday. The district contends lawyers for Berkley have told the insurer there's a possibility they have a duty to defend the case and pay damages under the policy for any wrongful acts.
The counter-claim also contends Berkley owes damages to the district for not immediately defending the case.
Rollins left the district in 2018 for a job with the Northwest Arkansas Council.
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NoneInsurance exclusions
An exclusion is a provision within an insurance policy eliminating coverage for certain acts, property, types of damage or locations. Things that are excluded are not covered by the plan.
Source: NWA Democrat-Gazette