UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-2357

SELECTIVE INSURANCE COMPANY,

Plaintiff - Appellee,

versus

THOMAS L. OGLEBAY; CARMELLA BONE, Individually

and as next friend and legal guardian of

Tracey M. Mayhew,

Defendants - Appellants.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-05-

951)

Argued: September 20, 2006 Decided: July 17, 2007

Before MICHAEL, Circuit Judge, N. Carlton TILLEY, Jr., United

States District Judge for the Middle District of North Carolina,

sitting by designation, and Thomas E. JOHNSTON, United States

District Judge for the Southern District of West Virginia, sitting

by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Byron Leslie Warnken, WARNKEN, L.L.C., Towson, Maryland,

for Appellants. Stephen Salvatore McCloskey, SEMMES, BOWEN &

SEMMES, Baltimore, Maryland, for Appellee. ON BRIEF: Michael

Patrick Lytle, WARNKEN, L.L.C., Towson, Maryland; Stephen Allen

Markey, III, Towson, Maryland, for Appellants.
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Unpublished opinions are not binding precedent in this circuit. 
3

PER CURIUM:

Carmella Bone, as assignee of Thomas Oglebay’s claim, appeals

the ruling of the district court granting summary judgment for

Selective Insurance Company ("Selective"). The declaratory

judgment action was brought by Selective seeking a ruling that

Selective did not have a duty to defend under an insurance policy

issued by Selective. We affirm the opinion of the district court

denying coverage.

I.

In accordance with the agreed statement of facts submitted by

the parties, the facts of the case are as follows: Selective

issued a Commercial General Liability policy to A. Widmeyer Driving

School("Widmeyer"). (Joint Appendix at 50, ¶1). Widmeyer is the

only named insured on the policy. (JA at 50,¶ 2). The Selective

policy does not specifically identify Thomas Oglebay as an

"insured" under the policy. (JA at 50,¶ 3). The definition of the

term "insured" includes "employees . . . but only for acts within

the scope of their employment by you or while performing duties

related to the conduct of your business." (JA at 50, ¶ 4). The

Selective policy provides coverage for damages due to "bodily

injury" and "personal and advertising injury." (JA at 50,¶¶ 5-7).

Widmeyer employed Mr. Oglebay to teach driving instruction.

(JA at 51,¶ 8). Tracey Mayhew is a mildly mentally retarded adult
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who was enrolled at Widmeyer by her mother, Carmella Bone, pursuant

to a special program where individuals with learning disabilities

could learn to drive. (JA at 51,¶ 9). 

In March and April 2002, when Mr. Oglebay was supposed to be

teaching Ms. Mayhew how to drive, Mr. Oglebay sexually assaulted

Ms. Mayhew. (JA at 51,¶ 10). In particular, following classes at

the driving school after other students had left, Mr. Oglebay began

to sexually abuse Ms. Mayhew. (JA at 51,¶ 10). Mr. Oglebay

continued his activity during driving sessions in a vehicle owned

by Widmeyer and at Mr. Oglebay's personal residence. (JA at 51,¶

10, 17). All contact between Mr. Oglebay and Ms. Mayhew occurred

during the period of time that Ms. Mayhew was scheduled for driving

instruction. (JA at 53,¶ 18). Mr. Oglebay has stated that he did

not expect or intend to injure Ms. Mayhew through his conduct. 

(JA at 53,¶ 19).

When Ms. Bone became aware of the abuse, she filed a civil

action in Maryland state court against Mr. Oglebay and Widmeyer

alleging "various acts of vulnerable adult abuse, sexual assault,

battery, and rape upon Ms. Mayhew." (JA at 51,¶ 10). The state

court entered summary judgment in favor of Ms. Bone on a false

imprisonment claim. (JA at 53,¶ 20). After the entry of summary

judgment, Ms. Bone and Mr. Oglebay agreed to a consent judgment

against him in the amount of $300,000 apportioned as follows:

$275,000 for emotional pain and suffering sustained as a result of
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the false imprisonment and negligence claims and $25,000 for Ms.

Bone for past and future economic damages. (JA at 54,¶ 21). Ms.

Bone agreed not to attempt to collect anything in excess of $10,000

personally from Mr. Oglebay in exchange for Mr. Oglebay's

assignment of rights against Selective. (JA at 54,¶ 22). At all

times during the course of the state tort suit, Selective took the

position that it had no duty to defend or indemnify Mr. Oglebay. 

(JA at 54,¶ 23).

Following entry of judgment in the state court action,

Selective filed a declaratory judgment action in the United States

District Court for the District of Maryland seeking a declaration

of coverage under the policy. Both parties filed motions for

summary judgment.

The district court granted Selective's motion for summary

judgment holding that there was no coverage because Mr. Oglebay was

not an "insured" as that term is defined in the policy. At the

district court, the parties agreed that under Maryland law, the

intentional acts committed by Mr. Oglebay were not "within the

scope of his employment" and that the dispositive issue before the

district court was whether Mr. Oglebay's acts were committed "while

performing duties related to the conduct" of Widmeyer (the "while

performing duties" provision). 

The district court noted that the "while performing duties"

provision "must be interpreted consonant with, even if more broadly
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than, the 'scope of employment' phrase." Ultimately, however, the

district court found there was no coverage under the policy. In

particular, the district court noted that the acts occurred during

Mr. Oglebay's working hours, but rejected the argument that the

"while performing duties" clause was broad enough to encompass

intentional sexual misconduct. Ms. Bone timely filed a Notice of

Appeal. We review de novo the district court's grant of summary

judgment. Laber v. Harvey, 438 F.3d 404, 415 (4th Cir.2006) (en

banc).

II.

Under Maryland law, an insurer is obligated to provide its

insured with a defense to a tort action when there exists a

potentiality that the claim could be covered by the policy.

Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 383 Md.

527, 860 A.2d 909, 915 (2004); Litz v. State Farm Fire & Cas. Co.,

346 Md. 217, 225, 695 A.2d 566, 570 (1997)(explaining that "the

mere possibility that the insurer will have to indemnify triggers

the duty to defend").

This potentiality determination typically involves a two part

test: (1) what coverage and defenses exist under the terms of the

policy; and (2) whether the allegations in the tort action

potentially bring the tort claim within the policy's coverage. St.

Paul Fire & Mar. Ins. v. Pryseski, 292 Md. 187, 193, 438 A.2d 282,
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285 (1981). The first factor "focuses upon the language and

requirements of the policy, and the second [factor] focuses upon

the allegations of the tort suit." Id. Moreover, it is wellestablished under Maryland law that any doubt as to whether there

is a potentiality of coverage under an insurance policy should be

"resolved in favor of the insured." See U.S.F. & G. v. Nat'l Pav.

Co., 228 Md. 40, 55, 178 8 A.2d 872, 879 (1962).

The question before this court is whether the district court

properly concluded that Mr. Oglebay's actions were not acts

committed "while performing duties related to the conduct of"

Widmeyer's business. Ms. Bone asserts that the "while performing

duties" provision must be construed more broadly than the "scope of

employment" provision and that when construed broadly, the "while

performing duties" provision would provide coverage for Mr.

Oglebay's conduct. Specifically, Ms. Bone asserts that because all

of Mr. Oglebay's misconduct was committed during the time that Mr.

Oglebay was supposed to be teaching Ms. Mayhew how to drive, such

conduct was committed while Mr. Oglebay was performing duties

related to the conduct of his employer. Essentially, Ms. Bone

claims that Mr. Oglebay's tortious conduct is covered under the

"while performing duties" provision because there is a temporalspatial connection between his duties as a Widmeyer driving

instructor and his tortious conduct. 
8

Maryland courts have not yet interpreted the "while performing

duties" provision specifically at issue in the case. In Fed. Ins.

Co. v. Ward, 166 Fed. App'x 24 (4th Cir. 2006) (unpublished

opinion), we had occasion recently to address the interpretation of

a nearly identical insurance policy provision under Virginia law

and find that approach instructive here. 

The question before the court in Ward was whether an employee

who was finishing her day's work and locking up the business'

premises was acting "while performing duties related to the conduct

of [the employer's] business" when she flicked her cigarette ashes

into a wastebasket, resulting in a fire that destroyed the

building. We conducted our analysis by identifying the discreet

act in question, flicking cigarette ashes, and comparing that with

her duties as an employee: "Indeed, because the act of smoking was

not within the Employees' job description or needed to perform a

job-related duty, the subsidiary act of flicking ashes also cannot

be characterized as the exercise of a duty." 

In this case, the act complained about is false imprisonment

arising from sexual abuse and sexual assault. There is no

suggestion that sexual contact in any form constituted part of

Oglebay's job description nor that the subsidiary act of

accomplishing it in an assaultive way could be characterized as the

exercise of a duty.
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To perform the analysis using the more expansive temporalspatial criteria rejected by the panel in Ward would result in

coverage for a "virtually limitless number of activities" beyond

the anticipation of either the insurer or the employer simply

because they "coincide with a job-related duty." Ms. Bone cites no

authority suggesting that the Maryland courts would adopt that

approach, and we have found none.

In Wolfe v. Anne Arundel County, 374 Md. 20, 821 A.2d 52

(2003), the Court of Appeals of Maryland specifically rejected a

temporal-spatial argument similar to the argument advanced by Ms.

Bone. The Wolfe court had to determine whether a tort suit

resulting from a rape committed by an on-duty police officer was

covered by a collective bargaining agreement that provided coverage

for "litigation arising out of acts within the scope of his/her

employment." Id. at 31, 821 A.2d at 58. The rape victim in Wolfe

had asserted that "'but for' [the officer's] position as a county

police officer he could not have gained access to and control of

his victim and the opportunity to rape her inside the police

vehicle." Id. at 32 n.4, 821 A.2d at 59 n.4.

The Wolfe court rejected this "but for" argument noting that

"the litigation arose out of the 'act' of raping Ms. Wolfe and not

out of the 'act' of the traffic stop." Id. at 36, 821 A.2d at 61.

The Wolfe case involved interpretation of a clause containing the

phrase "scope of employment" and thus is not dispositive of the
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issue before us, namely interpretation of the more broad "while

performing duties" provision. However, the Wolfe court's rejection

of a temporal-spatial standard is instructive in predicting the

manner in which Maryland courts would interpret the "while

performing duties" provision at issue here.

In this case, Widmeyer's business was providing driving

instruction. As a Widmeyer employee, Mr. Oglebay's duties were to

teach his students, such as Ms. Mayhew, how to drive. It is

undisputed, however, that Mr. Oglebay was not teaching Ms. Mayhew

how to drive during the times that Ms. Mayhew was with him.

Rather, Mr. Oglebay sexually assaulted Ms. Mayhew in lieu of

performing his duties, i.e. providing driving instruction. Mr.

Oglebay's sexual assault of Ms. Mayhew, even if committed during

the time or at a place related to his employment as a driving

instructor, was certainly not the performance of a duty related to

the conduct of his employer's business.

III.

Ms. Bone also argues that the district court erred by

"ignoring the underlying trial court's finding on the merits that

Oglebay falsely imprisoned Tracey Mayhew which was specifically

covered under the policy." (JA at 295). In support of this issue,

Ms. Bone refers to a portion of the policy that specifically

provides coverage for claims of false imprisonment. Ms. Bone
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asserts that because the complaint in the underlying tort action

specifically included a claim for false imprisonment there was at

least the possibility of coverage, thus triggering the duty to

defend. 

As noted above, application of the potentiality standard under

Maryland law requires consideration of two questions. First, what

coverage and defenses exist under the terms of the policy? Second,

do the allegations in the tort action potentially bring the tort

claim within the policy's coverage? 

Here, the policy provides coverage for damages resulting from

"false imprisonment." The complaint in the underlying tort suit

included a section entitled "Facts Applicable to All Counts." (JA

at 133-34). The factual recitation in this portion of the

complaint focuses exclusively on the sexual misconduct of Mr.

Oglebay. Id. Moreover, the "False Imprisonment" section of the

complaint, Count III, states that "Oglebay's repeated acts of

sexual assault and battery and vulnerable adult abuse, as described

previously in this Complaint, constituted intentional acts of force

or threats of force that restrained Tracey Mayhew." JA at 136.

Thus, although the complaint identifies a claim for "false

imprisonment," the factual allegations supporting the false

imprisonment claim arise exclusively from the sexual misconduct of

Mr. Oglebay. As discussed in detail above, Mr. Oglebay is not an

insured under the policy for such conduct.
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The trial court did not err by not considering whether the

fact that false imprisonment is covered under the policy would

create a potentiality of coverage triggering the duty to defend.

The judgment of the district court is 

 AFFIRMED.