Subject: IN THE SUPREME COURT OF TEXAS
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Date: Mon, 12 Mar 2007 20:17:29 -0500

IN THE SUPREME COURT OF TEXAS

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No. 04-0692

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GuideOne Elite Insurance Co.
f/k/a

Preferred Abstainers
Insurance Co., Petitioner,

v.

Fielder Road Baptist Church,
Respondent

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On Petition for Review from the

Court of Appeals for the Second District of
Texas

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Argued October 20,
2005

Justice Hecht, joined by Justice Wainwright, Justice Brister and
Justice Willett, concurring in
the judgment.

Fielder Road
Baptist Church and its insurer, GuideOne Elite Insurance Co., have reached a
stipulation about the nature and duration of the Church’s relationship with a
former youth worker, Charles Patrick Evans, alleged to have sexually abused Jane
Doe. GuideOne argues that the stipulation should be considered in determining
whether it has a duty to defend the Church against Doe’s lawsuit, and the Court
rejects that argument. The Church argues that even if the stipulation were
considered, Doe’s pleadings would still invoke GuideOne’s duty to defend.
Because the Church is correct, the Court’s discussions of the so-called
“eight-corners rule”, and whether there should ever be exceptions to it, is
unnecessary. I would not address these difficult issues in a case in which they
cannot affect the result. Accordingly, I join only in the Court’s judgment.

Doe sued the
Church and Evans, alleging in her petition the following:

At all times material herein, Charles Patrick Evans was an
associate youth minister. At all times material herein, Charles Evans remained
under the retention, direct supervision, agency and control of Defendant
Church.

From approximately early 1992 to 1994, Defendant Evans was an
associate youth minister at Fielder Road Baptist Church in Arlington, Texas.
During this period Fielder Road knew or should have known that Evans engaged in
forbidden sexual conduct which was both actually and potentially damaging to
other persons including Plaintiff. . . . Fielder Road had knowledge
that Evans had made inappropriate sexual advances to other young girls in the
church. Despite these reports, Fielder Road continued to place Evans in a
position as a youth minister with access and authority over young
girls.

From approximately 1992 to 1994, Evans sexually molested Jane
Doe at church functions and church sponsored trips, as well as at her own
home.

*   *   *

Despite allegations of previous incidents, Fielder Road failed
to warn parents of the children in the church youth ministry of the sexual
tendencies of Defendant Evans.

*   *   *

At all times material herein from 1992 to 1994, Evans was
employed as an associate youth minister and was under Fielder Road’s direct
supervision and control when he sexually exploited and abused Plaintiff.
Defendant Evans came to know Plaintiff and gained access to her because of his
status as a youth minister. Defendant Evans engaged in this wrongful conduct
while in the course and scope of his employment with Defendant Fielder Road.
Therefore, Defendant Fielder Road is liable for the wrongful conduct of
Defendant Evans. Plaintiff therefore pleads Respondeat Superior, agency,
apparent agency and agency by estoppel, vicarious and derivative
liability.

Defendant Fielder Road negligently selected, hired and/or
continued the employment of Defendant Evans in a position of trust, confidence
and authority as a youth minister in direct contact with minors when it knew or
should have known of his dangerous sexual propensities.

Fielder Road failed to warn Plaintiff or her family of Evans’
dangerous sexual propensities.

Fielder Road failed to provide reasonable supervision of
Evans.

Fielder Road, as a religious organization, is granted special
privileges and immunities by society and is in a special fiduciary relationship
with Plaintiff. Defendant owed Plaintiff the highest duty of trust and
confidence and is required to act in Plaintiff’s best interest. Defendant
knowingly violated the relationship. Defendant knowingly breached Plaintiff’s
trust when Fielder Road failed to act with the highest degree of trust and
confidence to protect Plaintiff from its sexually predatory minister. This
knowing breach of fiduciary duty proximately caused injury to
Plaintiff.

*   *   *

Fielder Road also committed fraud by misrepresentation that
proximately caused Plaintiff’s damages. Fielder Road committed fraud when it
represented that Evans was sexually safe, when it knew or should have known of
his pedophilic tendencies.

*   *   *

Plaintiff alleges that the actions of these Defendants have
inflicted emotional distress upon Plaintiff.

Plaintiff alleges that the negligence of Fielder Road resulted
in bodily injury to Plaintiff.

The Church
has stipulated that the petition’s allegation that “Evans was an associate youth
minister” at the Church from “approximately early 1992 to 1994” is false.
Specifically, the Church has stipulated:

Charles Patrick Evans became a part-time intern in the youth
department of Defendant FRBC on November 14, 1991. On January 1, 1992, Charles
Patrick Evans was hired as a part-time associate in the youth department of
Defendant FRBC. Charles Patrick Evans left employment with Defendant FRBC on or
about December 15, 1992. Charles Patrick Evans never served, nor was he ever
authorized to so act, as an officer or director of Defendant FRBC. Charles
Patrick Evans did not serve, nor was he ever authorized to act, as an employee,
or volunteer of Defendant FRBC at any time after December 1992. Charles Patrick
Evans was officially removed as a member of Defendant FRBC in February of
1993.

From March
31, 1993, to March 31, 1994, GuideOne insured the Church against “legal
liability for damages because of bodily injury . . . to any person
arising out of sexual misconduct which occurs during the policy period” and
agreed to “defend any suit brought against [the Church] seeking damages, even if
the allegations of the suit are groundless, false or fraudulent”. GuideOne
argues that because the Church did not employ Evans or authorize him to act on
its behalf during that period, Doe’s accusations are not covered by the policy.
That is simply incorrect.

Doe alleges
that Evans’ sexually molested her “[f]rom approximately 1992 to 1994” — within
the policy period. Doe further alleges that she suffered bodily injury because
of Evans’ sexual misconduct, for which the Church is liable. If the Church is
correct that it did not employ Evans within the policy period, then Doe’s claim
against the Church for vicarious liability would fail. But that is clearly not
Doe’s only claim. She claims that the Church knew or should have known of Evans’
sexual misconduct from “approximately early 1992 to 1994” and should have warned
her and her family. She also claims that Evans was the Church’s apparent agent,
that the Church breached its fiduciary duty to her, and that the Church made
misrepresentations to her. Whether those and other claims have merit, legally or
factually, they assert liability against the Church that may not depend on the
period of Evans’ association with the Church and thus invoke the duty to defend.
GuideOne concedes that if it has a duty to defend any of Doe’s claims, it has a
duty to defend them all.[1]

The
“eight-corners” rule applies whether the Church’s stipulation is considered or
not. Thus, we have no need to consider what exceptions the rule might have, and
given the importance of this difficult issue, I would express no opinion on
it.

Accordingly,
I concur only in the judgment.

Nathan L. Hecht

Justice

Opinion
delivered: June 30, 2006

[1] Maryland Cas. Co. v. Moritz, 138 S.W.2d 1095,
1097 (Tex. Civ. App.CAustin 1940, writ ref=d).