Dutchuk v. Yesner

THERESA DUTCHUK, ANNALISA HEPPNER, LIZ ORTIZ, JOANNA WELLS,NORMA JOHNSON, and JANE DOE VI, Plaintiffs, v. DAVID YESNER, UNIVERSITY OF ALASKA BOARD OF REGENTSand UNIVERSITY OF ALASKA SYSTEM, Defendants.

No. 3:19-cv-0136-HRH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

August 11, 2020

ORDER

Cross-motions for Partial Summary Judgment

Defendant David Yesner moves for summary judgment that the University of Alaska has a duty to defend him in this action.¹ This motion is opposed by the University of Alaska Board of Regents and the University of Alaska System (the "University defendants)"² and they cross-move for summary judgment that the University has no duty to defend Yesner.³ The cross-motion is opposed.⁴ Oral argument was requested but is not deemed necessary.

Facts

Yesner is a former Anthropology Department faculty member of the University. Plaintiffs Theresa Dutchuk, Annalisa Heppner, Liz Ortiz, Joanna Wells, Norma Johnson, and Jane Doe VI are former students at the University. In Count IV of their third amended complaint, plaintiffs assert civil assault and battery claims against Yesner. Plaintiffs allege that Yesner "repeatedly touched [them] without their consent, including giving them aggressively sexual hugs and touching their breasts, so it was sexually stimulating to him" and that "Yesner assaulted Jane Doe VI by rubbing his penis against her body and pressing his mouth against her vagina."⁵ The unwanted touching is alleged to have occurred in University classrooms and labs.⁶ The sexual assault is alleged to have occurred while Jane Doe VI was on an official University archeological dig.⁷ In Count V, Dutchuk alleges an invasion of privacy by intrusion of solitude claim against Yesner, and Heppner alleges a false light invasion of privacy claim against Yesner. Dutchuk's claim is based on allegations that Yesner took sexually suggestive photographs of her without her consent at the Broken Mammoth Archaeological Site.⁸ Heppner's claim is based on allegations that Yesner"select[ed] a sexually suggestive photograph" to use as the "official photograph for her thesis paper."⁹ Because the alleged misconduct took place at University facilities and an official archeological dig site, Yesner contends that the "basis of the plaintiffs' case is that [he] was using his position at the University both directly and indirectly to harass and retaliate against them."¹⁰

Yesner has asserted a cross claim against the University of Alaska for declaratory relief.¹¹ Yesner seeks a declaration that the University has a duty to defend and indemnify him. Yesner alleges that "[u]nder AS 14.40.175 as well as bylaws and policies of the Board of Regents, the University owes Yesner a duty to defend and indemnify for certain claims arising within the course and scope of Yesner's duties."¹² Yesner tendered his defense to the University, but on June 7, 2019, the University declined to defend him, except for Heppner's invasion of privacy claim.¹³

Yesner now moves for summary judgment that the University has a duty to defend him as to all of plaintiffs' claims against him. The University defendants cross-move for summary judgment that the University has no duty to defend Yesner.¹⁴

Discussion

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255. "'[T]he court's ultimate inquiry is to determine whether the 'specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.'" Arandell Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623, 628-29(9th Cir. 2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987)). "When[,]" as here, the "parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits." Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citation omitted).

Yesner contends that there are three sources of the University's duty to defend. These three sources are AS 14.40.175, a provision in the Board of Regents' Policy, and a provision in the University bylaws.

The Board of Regents' Policy provides that "[t]he board will defend, indemnify and hold harmless all of its officers and employees . . . from any and all liability or damage arising out of acts on behalf of the university done within the course and scope of duty."¹⁵ The University bylaws provide that "[t]he board will defend, indemnify, and hold harmless board members and officers, university officers and employees . . . from any and all liability or damage arising out of acts on behalf of the board and the university performed within the course or scope of their official duties."¹⁶

These provisions are akin to indemnification clauses, which the Alaska Supreme Court has interpreted on numerous occasions. In Stephan & Sons, Inc. v. Municipality of Anchorage, 629 P.2d 71, 72 (Alaska 1981), "[t]he issue [was] whether S&S, a constructioncontractor, had a duty to defend the Municipality in" a negligence action brought by the mother of Walter DeHusson. DeHusson had drowned while playing on a spillway owned by the Municipality that S&S was repairing. Id. The indemnification clause at issue read:

The contractor shall indemnify, save and hold the City harmless, and defend the City at the contractor's sole cost and expense against any claim or liability for any injury to any person or persons or a damage to any property or any other liability arising or resulting from the construction of any improvement, or any part thereof, or from any other performance by the contractor or his subcontractors under this contract. The liability assumed by the contractor pursuant to this section shall include but not be limited to all claims brought by any person for work or materials furnished for construction of improvements under this contract.

Id. at 72-73. S&S argued that it had no duty to defend pursuant to this clause. Id. at 73. The Alaska Supreme Court disagreed, explaining that "[t]he key words are 'indemnify . . . and defend' and 'claim or liability.' We think that the most reasonable reading of the clause is that S&S agreed to defend against claims and to indemnify for liabilities." Id. at 75. The court further explained that

"[c]laim" clearly connotes assertion of a legal right, rather than legal recognition or enforcement of that right. One does not indemnify until there is actually liability; the existence of a claim alone does not call for indemnification. Since the inclusion of the word "claim" makes it clear that S&S undertook some responsibility with regard to claims, and since it is illogical to link the term "indemnify" with "claims," it follows that the obligation undertaken with respect to claims was an obligation to defend.

Id. at 75-76.

In Rogers & Babler v. State, 713 P.2d 795, 796 (Alaska 1986), Rogers contracted with the State to do road construction work, and before the project was complete, a motorcyclist was killed "after hitting a central road divider. . . ." The personal representative of the motorcyclist brought a negligence action against Rogers, the State, and others. Id. The State argued that Rogers had a duty to defend based on "the indemnity provision contained in the State of Alaska's 1972 Standard Specifications for Highway Construction. . . ." Id. That provision read:

The Contractor shall indemnify and save harmless the Department, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons or property on account of the operations of said Contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of said Contractor[.]

Id. at 796-97. The court explained that this provision was distinguishable from the indemnification clause in

Stephan & Sons. In Stephan & Sons, 629 P.2d at 72, the indemnity provision states that "[t]he contractor shall indemnify, save and hold the City harmless, and defend the City." Here the indemnity clause states that "[t]he contractor shall indemnify and save harmless the Department." The phrase "save harmless" does not imply a duty to defend, and nothing else in the clause suggests that such a duty exists.

Id. at 799-800 (emphasis added). The court explained that the "indemnify and save harmless" language only obligates the indemnitor to reimburse the indemnitee for the costsincurred in defending any claims. "There exists no affirmative duty to defend under the language 'indemnify and save harmless', but only a duty to reimburse for costs of defense[.]" Id. at 800.

Extending the logic of these cases to the provisions in the Board's Policy and the University bylaws leads to a conclusion that they do not contain a duty to defend because neither provision includes the word "claim." Rather, the provisions state that the Board will "defend, indemnify, and hold harmless" employees from "liability" or "damages." The provisions do not state that the University will "defend" employees against "claims," which is what...