*District Judge of the Northern District of Texas, sitting by designation. 

 

1The record does not permit a more precise reference to Tichenor's age. 

 

2

See Cinel v. Connick, 15 F.3d 1338 (5th Cir.1994) (Cinel's civil rights action against the

district attorney's office regarding due process and damage to his reputation), petition for cert.

filed, 63 U.S.L.W. 3065 (July 5, 1994); State v. Cinel, 619 So.2d 770 (La.App. 4 Cir.1993)

(reversing trial court's motion to quash bill of information in trial on state criminal charges of

possession of commercially made items of pornography), cert. denied, --- U.S. ----, 114 S.Ct.

1398, 128 L.Ed.2d 71 (1994); Tichenor v. Roman Catholic Church of the Archdiocese of New

Orleans, et al., Civil Action 91-09426, Div. "F" (pending case similar to the present suit, but filed

in Civil District Court for the Parish of Orleans, State of Louisiana). 

United States Court of Appeals,

Fifth Circuit.

Nos. 93-3601, 93-3759.

Ronald TICHENOR, Plaintiff-Appellant, Cross-Appellee,

v.

ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS, et al.,

Defendants-Appellees, Cross-Appellants.

Ronald TICHENOR, Plaintiff,

v.

ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS, et al.,

Defendants.

Dino CINEL, Defendant-Cross Claimant-Appellant,

v.

UNITED STATES FIDELITY & GUARANTEE COMPANY, Cross-Defendant Appellee.

Sept. 26, 1994.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM and JONES, Circuit Judges, and FITZWATER*, District Judge.

WISDOM, Circuit Judge:

Dino Cinel, a Catholic priest, engaged in sexual relations with Ronald Wayne Tichenor for

several years beginning while Tichenor was an adolescent.1 That relationship spawned this and other

litigation.2 The two cases we have consolidated for the purposes of this appeal are limited to the
 

3A more extensive background of the events leading to Father Tarantino's discovery of the

pornographic material appears in State v. Cinel, 619 So.2d at 771-75. A more extensive

background of the subsequent publication and distribution of the pornography appears in Cinel v.

Connick, 15 F.3d at 1340-41. 

 

4

See State v. Cinel, 619 So.2d at 772. 

 

5Tichenor had severed his relationship with Cinel in December 1986 and had hoped to put the

past behind him. By then, however, the publicity surrounding the case had disturbed his

comparatively tranquil, anonymous life in Florida. 

 

6Although the details are sketchy, Raymond had secured possession of Cinel's home-produced

pornographic videotapes. 

comparativelynarrowquestions of personaljurisdiction,statute oflimitations, and the dutyto defend.

The History of the Case.

An extensive review of the factsis unnecessary. In December 1988, Father James Tarantino,

the pastor ofSt. Rita RomanCatholic Church in New Orleans("St. Rita's"), discovered pornographic

materials depicting young boys engaged in sexual activity in then-Father Cinel's room. Included in

the assortment was a series of videotapes and photographs that Cinel had taken of Tichenor who

appeared in sexually provocative poses and various states of undress. Upon making his discovery,

Father Tarantino notified archdiocesan officials who, in turn, removed Cinel from St. Rita's.

Eventually, Cinel agreed to leave the priesthood.3

A few months later, in the spring of 1989, Sgt. William George Tolar, an investigator with

the Orleans Parish District Attorney, contacted Tichenor in conjunction with a pending investigation

of Father Cinel. The district attorney's office sought Tichenor's cooperation for help in prosecuting

Cinel on criminal charges of possession of pornographic material depicting minors.4 Tichenor

reluctantly agreed to meet with the investigator.5

Two years later, private investigator Gary Raymond and television news reporter Richard

Angelico met with Tichenor.6 Angelico was investigating allegations of sexual abuse by Cinel of

several young boys for a news program and sought an interview with Tichenor. That interview

subsequently was aired on television in New Orleans, accompanied with reports that Cinel had

engaged in sexual relations with Tichenor and had memorialized these events on film. Tichenor's

remaining hopesfor anonymityreceived their death-knellwhenRaymond sold some ofthe videotapes
 

7As mentioned, Tichenor also filed suit in Louisiana state court. See Tichenor v. Roman

Catholic Church of the Archdiocese of New Orleans, et al., Civil Action 91-09426, Div. "F". 

 

8With regard to the Archdiocese and St. Rita's, the district court addressed only the jurisdiction

question. The Archdiocese and St. Rita's mount a cross-appeal based on the district court's failure

to Geraldo Rivera and his employer, Tribune Entertainment Company. Rivera and company included

Tichenor's saga on an episode of his nationally syndicated program, "Now It Can Be Told".

Tichenor filed suit in Mississippistate court against Cinel, the Roman Catholic Church of the

Archdiocese of New Orleans (the "Archdiocese"), and St. Rita's.7 In his petition, Tichenor alleged

that, while he was a minor, Cinel, a duly ordained priest at St. Rita's, performed illicit acts upon him

in Louisiana and Mississippi. He also alleged that Cinel defamed him and invaded his privacy by

marketing videotapes and/or photographs of Tichenor.

Tichenor also directed his complaint at the Archdiocese and St. Rita's. He alleged that the

Archdiocese and St. Rita's were liable because they knew or should have known that illicit acts were

being performed on their premises and at Cinel's home in Mississippi. He charged that they failed to

protect him or take appropriate measuresto ascertain or correct the situation. Moreover, he alleged

that they knew or should have known that they were fostering Cinel's illicit activities and providing

him with the instrumentalities with which to conduct such activities.

In his petition, Tichenor asserted that Cinel, the Archdiocese, and St. Rita's, all non-residents

of Mississippi, were subject to the personal jurisdiction of the Mississippi court pursuant to

Miss.Code Ann. § 13-3-57, Mississippi'slong-armstatute. Citing the parties' diversity of citizenship,

the Archdiocese and St. Rita's removed the case to federal court. They also were granted a transfer

of the case to the Eastern District of Louisiana.

The Archdiocese and St. Rita's moved for summary judgment. They argued first that the

court lacked in personam jurisdiction over them and, second, that the claims against them were

barred by the applicable statute of limitations. Cinel also moved for summary judgment on the sole

ground that Tichenor's claims were time-barred. On August 4, 1993, the district court granted the

defendants summary judgment and, accordingly, dismissed Tichenor's suit. Tichenor appeals that

judgment.8
to dismiss the claims against them based on statute of limitations as well as on jurisdictional

grounds. 

 

9Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202

(1986). 

 

10Id. at 248, 106 S.Ct. at 2510. 

 

11Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56,

89 L.Ed.2d 538 (1986). 

On May 20, 1993, following the removal and transfer of this action, Cinel filed a cross-claim

against United States Fidelity and Guarantee Company ("USF & G"). Cinel argued that because he

had been sued in his capacity as a Catholic priest, USF & G was obligated to defend him and

indemnify him for any damages. USF & G disagreed and filed a motion for summary judgment.

The district court originally dismissed Cinel's cross-claimand USF &G'smotion forsummary

judgment as moot. Upon reconsideration, however, the court held that the case was not moot

because Cinel would continue to incur defense costs. On the merits, the court held that Cinel was

not acting within the scope of his employment when he engaged in sexual activities with Tichenor

and, thus, was not entitled to a defense or indemnification under the terms of the policy. Cinel

appeals that judgment.

The Standard of Review.

All of the issues before us were decided on summary judgment. Rule 56 of the Federal Rules

ofCivil Procedure instructsthat we maygrantsummaryjudgment onlywhere (1) the record discloses

no genuine issue as to a material fact and (2) the moving party is entitled to judgment as a matter of

law. We make both of these determinations without regard to the results reached by the district

court.

Although we take the facts in the light most favorable to the non-movant (here, Cinel),9he

nonethelessmust offer propersupport in opposing the motion. Mere averments as to factual disputes

are not sufficient to overcome a properly supported motion.10 Ultimately, no genuine issues of fact

exist if the record could not lead a rational trier of fact to find for the non-moving party.11

I. TICHENOR'S APPEAL
 

12This reminder is necessary for most of the events that Tichenor has alleged occurred not in

Mississippi, but at St. Rita's in Louisiana. 

 

1395 U.S. 714, 732-33, 24 L.Ed. 565 (1878). 

 

14326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). 

 

15Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683 (1977); De

Melo v. Toche Marine, Inc., 711 F.2d 1260, 1270 (5th Cir.1983). The number of contacts is not

significant; rather, the focus is on the degree to which the defendant purposefully availed himself

to the processes of the state. See id. (citations omitted). 

 

16DeMelo, 711 F.2d at 1264; Brown v. Flowers Indus. Inc., 688 F.2d 328, 331 (5th Cir.1982),

cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983). 

A. Are the Defendants Subject to Personal Jurisdiction?

Tichenor raises two distinct arguments regarding the question of personal jurisdiction, both

of which are outgrowths of his original complaint. He contends that the Archdiocese and St. Rita's

are within Mississippi's personal jurisdiction on the basis of, first, their vicariousliability and,second,

their independent liability. It is important to keep in mind that, for the purposes of these jurisdictional

questions, we are concerned only with those events which transpired in or otherwise affect

jurisdiction in Mississippi.12

Going over the basics ofin personam jurisdiction readslike a first-year Civil Procedure class

in law school. The appropriate starting point is Pennoyer v. Neff13 in which the Supreme Court laid

down the foundational proposition that a court without jurisdiction over a defendant is powerless to

impose upon him a personal obligation or duty. The Court's subsequent decisions culminated with

International Shoe Co. v. Washington14and the current test: A court may exercise personal

jurisdiction if a non-resident defendant has "certainminimumcontacts with [the forumstate]such that

the maintenance of the suit does not offend "traditional notions of fair play and substantial justice' ".

This test is the aegisthat protects a non-resident defendant's due process rights as guaranteed by the

Fourteenth Amendment.15

In a diversity action such as this, a federal court enjoys jurisdiction over a nonresident

defendant to the extent permitted by the long-armstatute ofthe forumstate—here, Mississippi.16 We
 

17Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616-17 (5th Cir.1989). 

 

18Id. at 1260; Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1168-69 (5th Cir.1985). 

In the case at hand, the district court concluded that the Archdiocese and St. Rita were not

subject to in personam jurisdiction under the Mississippi long-arm statute and, therefore, the

court did not reach the question of whether the assertion of jurisdiction over the defendants was

consistent with the Due Process Clause of the Fourteenth Amendment. 

 

19See Cycles, Ltd., 889 F.2d at 616. In the district court and in his appellate brief, Tichenor

has not alleged either the existence of any contract or that the Archdiocese or St. Rita's has done

business in Mississippi. At oral argument, Tichenor's counsel for the first time argued that the

Archdiocese does business in Mississippi because one of its television broadcasts can be viewed

there. Oral argument is not the proper place to introduce new legal theories. 

 

20Miss.Code Ann. § 13-3-57 provides, in pertinent part:

Any nonresident person, firm, general or limited partnership, or any foreign or

other corporation not qualified under the Constitution and laws of this state as

doing business herein, who shall commit a tort in whole or in part in this state

against a resident or nonresident of this state, shall thereby be subjected to the

jurisdiction of the courts of this state. 

note that, although Mississippi'slong-armstatute is not co-extensive with due process,17 due process

defines the constitutional boundary or outer limits within which personal jurisdiction may be

exercised.18

The Mississippi statute provides in personam jurisdiction over the following non-resident

defendants: those who make contracts with a resident to be performed at least in part in Mississippi;

tortfeasors whose wrongs take place in the state, whether committed against a resident or

non-resident; and those who "do business" in Mississippi.19 The question presented, then, is whether

the Archdiocese and St. Rita's, both non-resident defendants, have committed a tort in whole or in

part within the state of Mississippi against Tichenor, another nonresident.20

Althoughmost ofthe unfortunate eventsin this case took place inLouisiana, Tichenor alleges

that Cinel used his position and power to manipulate him into sexual relations at Cinel's house in

Mississippi. In an effort to tie in the Archdiocese and St. Rita's, Tichenor argues that the other priests

and lay personnel at St. Rita's were aware that Tichenor stayed with Cinel in Mississippi.

1. A Theory of Respondeat Superior

Tichenor argues that the Archdiocese and St. Rita's are vicariously liable for Cinel's conduct

and, therefore, subject to personal jurisdiction in Mississippi. Under Mississippi law, an employer is
 

21Seedkem South, Inc. v. Lee, 391 So.2d 990, 995 (Miss.1980). 

 

22Thatcher v. Brennan, 657 F.Supp. 6, 8 (S.D.Miss.1986), aff'd, 816 F.2d 675 (5th Cir.1987)

(citing Horton v. Jones, 208 Miss. 257, 44 So.2d 397 (1950)). In some rare instances, an

intentional or criminal act could be within the employee's scope of employment. 

 

23Cinel himself described his duties as:

Guidance. Well, it starts out with a ministerial function, which is saying mass,

hearing confessions, giving communion, anointing the sick, funerals, weddings, all

these, baptisms. Its a ministerial function. Then there is the preaching, which is

liable for the tortious conduct of his employees if that employee was acting within the scope of his

employment. The employee acts outside the scope of his employment

so long as he is engaged in affairs of his own or in pursuing some purpose unrelated to his

master's business, acting as much outside the scope of his employment as he would be were

his working day ended, or his task completed....21

For that reason, an employer is not liable for an employee's intentional or criminal acts unless the

employer either authorized or ratified the act.22 These acts occur neither in the course of nor as a

means to accomplishing the purpose of one's employment.

The district court found that smoking marijuana and engaging in sexual acts with minor boys

were not within the scope of Cinel's employment as a Catholic priest. Hence, the court found that

the Archdiocese and St. Rita's were not within Mississippi's jurisdiction for committing tortious

conduct. Tichenor assigns error to that conclusion.

Tichenor arguesthat Cinel's activities were so closely connected in time, place, and causation

to his duties as a Catholic priest asto warrant the imposition of vicariousliability on the Archdiocese

and St. Rita's. In other words, even if he technically was "off duty" when on vacation in Mississippi,

the nature of his calling required that he be a priest 24 hours a day, every day.

We reject the contention that Cinel was acting within the scope of his employment. Although

a priest's duties are less susceptible to definition than, say, a store clerk, we can nonetheless outline

the basics. It is a priest's duty to represent the word of God, as embodied in the Scriptures. The

central aspect of that duty is to aid people in their relationship with God and, also, the Church.

Moreover, it is his duty to help others—whose paths may have wandered—to find safety and security

in the doctrines of Catholic theology.23
done on Sunday. Then there is the counseling, preparation of people for baptisms,

for confirmation, for all these things. 

 

24Seedkem South, 391 So.2d at 995. 

 

25Thatcher, 657 F.Supp. at 10; Jones v. Toy, 476 So.2d 30, 31 (Miss.1985). 

 

26Cinel has greatly aided Tichenor's hindsight by providing abundant details of his sexual

history during the course of his deposition. Until he was under oath, however, Cinel zealously

It would be hard to imagine a more difficult argument than that Cinel's illicit sexual pursuits

were somehow related to his duties as a priest or that they in any way furthered the interests of St.

Rita's, his employer. Instead, given Cinel's vow of celibacy and the Catholic Church's unbending

stand condemning homosexual relations, Cinel's acts represent the paradigmatic pursuit of "some

purpose unrelated to his master's business".24

That leaves only the question whether the Archdiocese or St. Rita's authorized or ratified

Cinel's behavior. Originally a fallback argument, Tichenor's counsel concentrated on this proposition

at oral argument. He argued vigorously that the circumstances of Tichenor's relationship and living

situation at the rectory, with considerable contact with other pastors and lay personnel, should have

made the other priestssuspicious. That suspicion, he stated, translates into "constructive knowledge"

which is tantamount to a "passive ratification" of Cinel's activities in Mississippi. This is a novel

proposition to be sure. Summary judgment for the Archdiocese and St. Rita's was proper.

2. A Theory of Independent Liability

We next address whether the district court lacked personal jurisdiction over the Archdiocese

and St. Rita's on the basis of Tichenor's claims of negligent hiring and supervision. Mississippi does

require that employers exercise due care in hiring their employees. Under Mississippi law, an

employer may be liable for an employee's negligence and resulting injuries "if the master knew or

should have known" of the employee's misbehavior or incompetence.25

To support his claimof negligent hiring, Tichenor chargesthat the Archdiocese and St. Rita's

should have known that Cinel had a history of sexual improprieties and that he would continue to

pursue those activities when under their employ. With the aid of hindsight, Tichenor charges that a

minimalbackground check would have revealed Cinel's pattern of homosexual activitywith minors.26
concealed any hint of his endeavors. 

 

27See Williams v. United States Fidelity and Guaranty Co., 854 F.2d 106, 109 (5th Cir.1988). 

Cinel was on vacation when he and Tichenor were together in Mississippi. 

 

28Id. 

The record, however, permits of no conclusion that the defendants suspected that Cinel had

engaged in sexual improprieties or might do so in the future. It is doubtful that the Archdiocese or

St. Rita's knew anything about Cinel's darker side. Cinel was diligent in guarding his secrets. He did

not disclose his extracurricular activities to anyone at anytime in the course of his employment and,

from his perspective, with good reason. No tangible evidence in the form of a criminal history or

discipline exists that would have been uncovered in a background check. Summary judgment was

appropriate.

Tichenor next asserts that the Archdiocese and St. Rita's are subject to personal jurisdiction

in Mississippi on the basis of their negligent failure to supervise Cinel. Mississippi law provides,

however, that employers do not have a duty to supervise their employees when the employees are

off-duty or not working.27 Employers also are not liable for failure to supervise when the employee

engages in independent criminal conduct which results in the plaintiff's injuries.28 Moreover, an

employer's duty to supervise does not include a duty to uncover his employees' concealed,

clandestine, personal activities.

 Just as Cinel had concealed his past sexual activities, he hid his relationship with Tichenor.

In an attempt to show knowledge, Tichenor produced evidence that he lived in Cinel's rectory room

for almost six months, taking meals, and having his laundry done by the rectory housekeepers.

Tichenor engaged in social activities on several occasions with the other priests while staying at the

rectory and consumed alcoholic beveragesin their presence. There was also testimony that Cinel had

other young boys visit him at the rectory frequently and took other young boys to Mississippi on

weekends.

This evidence suggests that other priests and possibly lay personnel knew that Tichenor

travelled to Mississippi with Cinel. That concession, however, is insufficient to establish that the
 

29Tichenor testified that his relationship with Cinel was of the most personal nature and, thus,

not fodder for disclosure to others. 

 

30In fact, upon discovering the truth, they took swift action against Cinel. 

 

31Strong v. R.G. Industries, Inc., 691 F.Supp. 1017, 1018 (S.D.Miss.1988). 

 

32Miss.Code Ann. § 15-1-35. 

 

33See Guthrie v. J.C. Penney Co., 803 F.2d 202, 210-11 (5th Cir.1986). 

 

34See Mize v. Harvey Shapiro Enterprises, Inc., 714 F.Supp. 220, 224 (N.D.Miss.1989). 

defendants suspected a sexual relationship between the two. Tichenor himself testified that he and

Cinel concealed their sexual relationship from the Archdiocese and the parishioners at St. Rita's.29

Cinel did his part by fabricating the story that Tichenor was a homeless boy whom he had discovered

sleeping under a highway bypass and had taken in as an act of charity.

It is unfortunate, to say the least, that the frequency with which these cases have surfaced

suggests that the clergy at St. Rita's were naive. There is, however, nothing to indicate that the

Archdiocese or St. Rita's knew or should have known of what was taking place in Cinel's private

world.30

The burden of establishing personal jurisdiction resides with Tichenor.31 That burden he has

failed to carry.

B. Are Tichenor's Claims Time-Barred?

The district court held that Tichenor's claims against Cinelwere time-barred. Mississippi has

a one year statute of limitations which provides:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or

menace, and all actions for slanderous words concerning the person or title, for failure to

employ, and for libels, shall be commenced within one (1) year next after the cause of such

action accrued, and not after.32

Torts similar to those enumerated also are subject to the one-year limitations period.33 In addition,

the tort of invasion of privacy has been held subject to the one-year statute.34 We conclude that, in

this case, Tichenor's claim of illicit sex sufficiently resembles a claim of assault and battery to bring

it within thisstatute's ambit. Hence, the one-year limitations period is applicable to Tichenor's claims

of illicit sex, invasion of privacy, defamation, and libel.
 

35See Miss.Code Ann. §§ 15-1-59, 1-3-21. 

 

36Mississippi recognizes this doctrine and has codified its version at Miss.Code Ann. § 15-1-

49. 

 

37Much has been written on this interesting subject. See generally, Jocelyn Lamm, Easing

Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed

Discovery Rule, Yale L.J. 2189 (1991) (discussing discovery rule in an incest context). 

 

38Miss.Code Ann. § 15-1-49 provides, in pertinent part:

Limitations applicable to actions not otherwise specifically provided for. * * * (2)

In actions for which no other period of limitation is prescribed and which involve

latent injury or disease, the cause of action does not accrue until the plaintiff has

discovered, or by reasonable diligence should have discovered, the injury. (3) The

provisions of subsection (2) of this section shall apply to all pending and

subsequently filed actions. (Emphasis added). 

 

39Another way of posing this question is to ask whether the Mississippi courts would extend

the discovery rule to a claim based on illicit sex. If the tort of illicit sex is merely a novel way of

alleging assault and battery, the discovery rule does not apply. The Mississippi Supreme Court

has framed this as an inquiry into substance, not form:

Mississippi law tolls the statute of limitation until the plaintiff reaches the age of 21 years.35

Tichenor reached the age of 21 on November 12, 1986. His relationship with Cinel ended in

December 1986. Hence, Tichenor had until December 1987 to assert his claims against Cinel. He

filed suit in June 1991.

Recognizing that the numbers do not add up in his favor, Tichenor seeks refuge in the

doctrine of contra non valentem, known familiarly as "the discovery rule".36 Under this doctrine, the

accrual of a plaintiff's cause of action issuspended until the plaintiff "discovers" the injury. Although

a latent discovery could be made for a number of reasons, the catalyst often is a consultation with a

psychologist or counselor who aids the plaintiff in memory access.37

The district court rejected Tichenor's contra non valentem argument on the grounds that

Mississippi applies the discovery rule only "in actions for which no other period of limitation is

prescribed."38 The district court reasoned that, because Miss.Code Ann. § 15-1-35 (the one-year

statute of limitations) applies to all of Tichenor's claims, the discovery rule has no application in this

case. The immediate question, then, is whether all of Tichenor's claims are subject to that one-year

statute.39
There can be no escape from the bar of the statute of limitations applicable to

intentional torts by the mere refusal to style the cause brought in a recognized

statutory category and thereby circumvent [the] prohibition of the statute.

City of Mound Bayou v. Johnson, 562 So.2d 1212, 1215 (Miss.1990) (citations omitted). 

 

40See Staheli v. Smith, 548 So.2d 1299, 1303 (Miss.1989) (discovery rule applies to "that

limited class of libel cases in which, because of the secretive or inherently undiscoverable nature

of the publication the plaintiff did not know, or with reasonable diligence could not have

discovered, that he had been defamed"). 

 

41Other states have struggled with this approach. See Comment, Accrual of Statutes of

Limitations, California's Discovery Exceptions Swallow the Rule, 68 Calif.L.Rev. 106 (1980). 

 

42Tichenor testified at his deposition that his relationship with Cinel was soothing. He received

companionship, love, and security, all of which he had been denied in his difficult early years. 

(Tichenor's father was jailed for raping Tichenor's sister and abusing Tichenor's mother. Unable

to care for her children, Tichenor's mother dropped him off at a shelter for runaway youths.) 

 

43Tichenor does not contend that he had blocked out any memory of his relationship of Cinel; 

he asserts only that he did not develop an understanding of how his relationship with Cinel was

injurious until after consulting a psychologist. The facts betray that understanding. 

The Mississippi Supreme Court has applied the discovery rule to what it has termed

"inherently undiscoverable" intentional torts.40 This patchwork approach requires some guessing as

to what that court would do.41 We can leave this question for the Mississippi courts, however: In

the present matter, Tichenor's evidence that he experienced a latent discovery isinsufficient to invoke

the discovery rule.

Tichenor asserts that he did not perceive that his relationship with Cinel was injurious until

he entered therapy in May 1991. Until then, Tichenor had perceived his relationship with Cinel as

a positive aspect of his life, even though Cinel made Tichenor feel increasingly inadequate towards

the end of their relationship.42 He faulted himself for the problems in the relationship and lamented

his inability "to satisfy someone as kindhearted and loving as a priest".

Tichenor has provided no evidence to counter the fact that he should have known of the basis

for this suit at least by May 1989 when Sgt. Tolar notified him that the New Orl eans District

Attorney's office was investigating Cinel. Sgt. Tolar put Tichenor on notice that Cinel was being

investigated for wrongdoing and that he may have broken the law. More, Tichenor was told that

another boy upon whom Cinel foisted himself had already filed suit.43 The discovery rule does not
 

44See Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 242 (Miss.1987). 

 

45See Young v. Jackson, 572 So.2d 378, 382 (Miss.1990). 

 

46This court's inquiry is limited to the summary judgment record before the trial court and

parties may not advance new theories or raise new issues on appeal. Topalian v. Ehrman, 954

F.2d 1125, 1131 n. 10 (5th Cir.), reh'g denied, 961 F.2d 215 (5th Cir.), cert. denied, --- U.S. ----,

113 S.Ct. 82, 121 L.Ed.2d 46 (1992). 

 

47Originally, Cinel sought both his costs of defense and indemnification for damages. He has

since abandoned his claim for indemnification. 

help Tichenor.

 The district court determined that Tichenor's defamation and libel claims were time-barred

as well. The statute of limitations for defamation and libel begins to run from the date that the

allegedly libelousstatement was published to a third person.44 Hence, unlike Tichenor's other causes

of action, the limitations period for these claims did not begin when Tichenor'srelationship withCinel

ended in December 1986. The same is true for Tichenor's invasion of privacy claim which did not

accrue until there was a public disclosure of private facts.45

Although Tichenor now contends that the district court failed to address the point at which

these actions accrued, it was Ticheno r who failed to raise them at the summary judgment stage.

Except in rare circumstances, we must dismiss legal theories raised for the first time on appeal.46

We address one finalstatute of limitations question. In response to the district court's ruling,

the Archdiocese and St. Rita's argue that, if the limitations period had run on Tichenor's claims

against Cinel, it must also have run on Tichenor's claims against them. Accordingly, they seek to

"expand" that ruling to include them. In the light of our holding that the Archdiocese and St. Rita's

were not within the jurisdictional reach of the court, we need not pass on this proposition.

II. CINEL v. USF & G

We turn now to the second half of this consolidated appeal. Cinel seeks from USF & G his

costs of defense in connection with the Tichenor suit. Cinel argues that, in the main action, Tichenor

stated a claim of vicarious liability against the Archdiocese and St. Rita's which sought to establish

their liability for Cinel's wrongdoing. Because USF & G has a duty to defend the Archdiocese, Cinel

argues, USF & G must have a concomitant duty to defend him.47 The terms of the policy convince
 

48841 F.2d 600 (5th Cir.1988). 

us otherwise.

We start with the policy issued by USF & G to insure the Archdiocese. That policy states

in part (our emphasis):

[USF & G] shall have the right and duty to defend any suit against the Insured seeking

damages ... even if any of the allegations of the suit are groundless, false or fraudulent....

The question presented is whether Cinel is an "insured" for the purposes of this clause or, in the

alternative, whether he can claim entitlement on some other basis.

The policy is plain on its face as to the "named insured". Under a heading with that title, it

reads: "ARCHDIOCESE OF NEW ORLEANS AND ITS PARISHES AND INSTITUTIONS AND

RELIGIOUS ORGANIZATIONS". Beyond the named insured, the policy also contains a section

entitled "Persons Insured" which expands the definition of who is covered. That section provides,

in part:

[I]f the Named Insured is designated in the declarations as other than an individual,

partnership or joint venture, [then] the organization so designated and any executive officer,

director or stockholder thereof while acting within the scope of his duties as such [are

covered]. (Emphasis in original).

Cinel was not an officer, direct or, or a stockholder in the Archdiocese. Hence, he cannot claim

coverage under this section.

There is, however, another section where Cinel hopes to find a safe haven. It addresses

whether employees of the named insured are covered:

X. ADDITIONAL PERSONS INSURED

(B) Employee—Any employee (other than executive officers) of the named insured

while acting within the scope of his duties as such....

Under the terms of thissection, Cinel is entitled to coverage only for conduct within the scope of his

duties. We expressly hold in the preceding part of this opinion, however, that the allegations in his

complaint involve conduct well outside those parameters. Hence, USF & G had no duty to defend

Cinel.

Cinel strenuously argues that our decision in Jensen v. Snellings48 requires that we decide
 

49Cinel argues that Tichenor's respondeat superior claims against the Archdiocese and St.

Rita's plainly allege that Cinel acted within the scope of his duties. 

 

50Id. at 612 (emphasis added) (citations omitted). When Jensen applies, we liberally interpret

the allegations in the plaintiff's complaint. Hence, if "the pleadings, taken as true, allege both

coverage under the policy and the liability of the insured, the insurer is obligated to defend,

regardless of the outcome of the suit or the eventual determination of actual coverage". Id. 

this issue solely on the face of the complaint and the policy without resort to the facts as they have

been developed. Hence, he argues, Tichenor's allegations that Cinel acted within the scope of his

employment are sufficient to trigger the duty to defend.49 Cinel is only partially correct, for Jensen

applies only to suits against an insured.

It is well-settled in Louisiana that an insurer's duty to defend suits filed against its insured

is determined by a comparison of the allegations of the plaintiff's complaint and the terms of

the policy, with the insurer having a duty to defend unless the allegations in the complaint

unambiguously exclude coverage.50

Jensen, then, goes to the duty of an insurance company to defend its insured.

In the case at hand, as we have explained, the policy upon which Cinel relies is not between

him and USF & G, it is between USF & G and the Archdiocese. In this structure, Cinel is a third

party beneficiary who receives coverage only when he acts within his duties. We do no violence to

the Jensen rule in looking beyond the complaint to ascertain whether he was an additional person

insured. Summary judgment was proper for USF & G.

III.

District Judge Martin Feldman wrote a careful, well-reasoned opinion supporting his

judgments. We AFFIRM both judgments of the district court.