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American Reliable Insurance Co. v. Lockard

United States District Court, D. Montana, Missoula Division

August 23, 2018

AMERICAN RELIABLE INSURANCE COMPANY, Plaintiff,
v.
LAWRENCE LOCKARD, and KAREN JANE NELSON, Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          DANA L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         The Court held a bench trial on August 20, 2018. After hearing testimony and reviewing evidence admitted, the Court makes the following Findings of Fact and Conclusions of Law.

         JURISDICTION AND VENUE

         1. Defendant Lawrence Lockard ("Lockard") is a resident of the State of Montana and was an employee of the United States Fish and Wildlife Service ("USFWS").

         2. Defendant Karen Nelson ("Nelson") is a resident of the State of Montana and is an employee of USFWS.

         3. American Reliable is an insurance company not domiciled in the State of Montana whose principal place of business is in Scottsdale, Arizona.

         FINDINGS OF FACT

         I. Lockard's Policy

         4. At all relevant times, Lockard was insured by the American Reliable Insurance Policy No. LOG000313-7 (the "Policy"). (Doc. 1-1.)

         5. The Policy issued to Lockard provides and defines standard "occurrence"-based homeowner's coverage for bodily injury and property damage.

         6. The Policy contains and defines an exclusion for "Expected or Intended" bodily injury.

         7. The Policy contains and defines a "Business" exclusion which excludes coverage for "bodily injury" arising out of or in connection with a "business" engaged in by an insured.

         8. The Policy contains and defines a "Sexual Molestation, Corporal Punishment or Physical or Mental Abuse Exclusion."

         9. The Policy contains and defines an "Assault and Battery Exclusion."

         II. General Facts[1]

         10. Lockard and Nelson were employees of the United States Fish and Wildlife Service during the night in question.

         11. On September 8, 2015, Nelson hiked into Quartz Lake in Glacier National Park, accompanied and led by Lockard, to participate in a scuba dive to gather information regarding lake trout.

         12. The scuba dive entailed an overnight stay in a remote USFWS cabin. Lockard and Nelson slept in the same room in separate, but adjacent beds. A third individual slept outside due to his sleep apnea and tendency to disrupt others within close quarters.

         13. On the evening of September 9, 2015, following dinner and a period of relaxation, which included drinking wine, Defendants shared a hug and a kiss on the cheek. Lockard perceived all of the forgoing as possible flirtatious behavior and possibly an invitation for additional physical, sexual contact. (Witness Testimony, hereafter "WT".)

         14. As explained below in the Conclusions of Law, Lockard's subjective mental state that evening is not determinative.

         15. That night, before bed, Nelson took her prescribed sleep medication, Ambien, to assist her sleep.

         16. Lockard knew Nelson had taken her sleep medication.

         17. Lockard fell asleep for a period of time and woke up with his hand over his head and on top of Nelson's leg. Nelson was asleep as Lockard placed his hand on her leg. Lockard proceeded to get into Nelson's bed and sexually molest her for several minutes before she awoke. When Nelson awoke, Nelson immediately jumped out of the bed, and Lockard returned to his bed. This was Lockard's first indication that his conduct was not consensual. (WT.)

         18. Due to her having taken Ambien, and her inability to completely wake up, Nelson could not remember much of what had gone on while she had been asleep. (WT.)

         19. The morning after the incident, Lockard and Nelson hiked out of the remote lake, and Lockard described to Nelson what had taken place while she was asleep.

         20. Upon Nelson's return to work, she reported the incident to law enforcement and her supervisor. The USFWS instructed Lockard to have no contact with Nelson. Lockard was also instructed to not draw any attention to Nelson or the Quartz Lake incident.

         21. After the incident, Lockard stated and/or implied to his and Nelson's coworkers that the encounter was consensual. (WT.)

         22. Nelson believed her coworker, Sharon Hooley, treated her differently after the incident due to the action ...


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