U.S. District Court finds no coverage for agency that provided therapy to girl who was abused in foster care

The tragic case of a girl in foster care who at age 11 was beaten nearly to death by her aunt and stepfather has been periodic front page news for years. The abuse put the child into a coma in 2005. Over the opposition of her stepfather, who purportedly sought to avoid a murder conviction, the Department of Social Services brought suit to allow her doctors to terminate life support, as she was in a vegetative state from which there appeared to be no hope of recovery. The Supreme Judicial Court ruled in favor of DSS. The child, however, began to breathe on her own and eventually recovered to the point that she could talk. The aunt committed suicide and the stepfather is in jail.

And now we move on to the insurance issues.

The child's current guardian sued a clinic that provided therapy to the child when some of the abuse took place. The defendant's insurer, Valley Forge Insurance Company, filed suit seeking a declaratory judgment that its policy does not cover the allegations.

The policy contained an exclusion for the "actual or threatened sexual or physical abuse or molestation by anyone to any person while in the care, custody or control of the insured."

At issue is the meaning of "in the care of." The insureds argued that the phrase means "physically in the care."

In Valley Forge Ins. Co. v. The Carson Center for Human Servs., Inc., 2011 WL 884802 (2011) the United States District Court for the District of Massachusetts disagreed. Finding little case law on point, the court turned to the dictionary definition of "care" to find that physical proximity is not required. Rather, the phrase means "under the supervision or charge of the insured."

The court held that the provision of bi-weekly therapy was sufficient to meet this definition.

The court also noted that in the underlying complaint the child's guardian alleged that she was in the care of the insured. "The word cannot carry one meaning for the purposes of liability and a different one for the purposes of coverage."