A faculty 'marshal' was reportedly tasked with keeping the University of Florida graduation ceremony going last Saturday. Some students danced as they received their diplomas, apparently not an unknown occurrence in 2018.
Some of the dancing students are Black. One of them has applied for law school. Whatever the graduation marshal's motivation, he grabbed the student and hustled him off the graduation stage. There were other dancing students whom the marshal physically moved off the stage. The testimony varies in terms of the media reporting; some say that all of the students who were physically removed were Black, some say White students and Asian students were treated the same way. Read about the incident and see the photographs here and here.
We do not know the motivations, as I said, but this incident sparks several insurance coverage issues dependent on intention nonetheless.
An insurance policy's assault and battery exclusion may or may not bar all coverage for assault and battery in Florida. So if the University of Florida's liability insurance policies have assault and battery exclusions, will those exclusions bar a duty to defend if any students sue the University for their injuries arising out of an alleged assault and battery? It depends on what the allegations are, the Court held in AIX Specialty Ins. Co. v. Sombreros, LLC, No. 8:17–cv–843–T–26TBM, 2018 WL 1635643, at *6 (M.D. Fla. April 5, 2018).
If there is no allegation of intent nor any policy requirement of intent, then the assault and battery exclusions may not bar any duty to defend just as the assault and battery exclusion in did not bar a duty to defend in that Florida case either.
To say again, we do not know the marshal's motivation here. But from an insurance coverage perspective, could there be coverage for a Section 1983 action based on deprivation of civil rights on the U.F. stage last Saturday, or on some other basis linked to racial discrimination? The short answer is that Courts have recognized coverage is possible for Section 1983 and other actions based on discrimination.
But in Florida, there is no insurance coverage as a matter of public policy for intentional religious discrimination under a Florida Supreme Court ruling. Ranger Ins. Co. v. Bal Harbour Club, Inc., 549 So.2d 1005 (Fla. 1989).
By extension, and depending on the evidence in any particular matter including the ceremony that played out in Gainesville, Florida last Saturday, there should be no insurance coverage for intentional racial discrimination in Florida either.
As always, the facts matter at least in Court. Also, once again, motivation matters for insurance coverage questions. See Lime Tree Village Community Club Ass'n, Inc. v. State Farm Gen. Ins. Co., 980 F.2d 1402 (11th Cir. 1993). Parenthetically, my clients and I successfully argued in favor of insurance coverage under Florida law in the Lime Tree coverage case.
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