IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0692

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GuideOne Elite = Insurance Co.=20 f/k/a

Preferred = Abstainers=20 Insurance Co., Petitioner,

Fielder Road = Baptist Church,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Second = District of=20 Texas

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Argued October 20,=20 2005

Justice Hecht, joined by = Justice Wainwright, Justice = Brister and=20 Justice Willett, = concurring in=20 the judgment.

Fielder Road=20 Baptist Church and its insurer, GuideOne Elite Insurance Co., have = reached a=20 stipulation about the nature and duration of the Church=92s relationship = with a=20 former youth worker, Charles Patrick Evans, alleged to have sexually = abused Jane=20 Doe. GuideOne argues that the stipulation should be considered in = determining=20 whether it has a duty to defend the Church against Doe=92s lawsuit, and = the Court=20 rejects that argument. The Church argues that even if the stipulation = were=20 considered, Doe=92s pleadings would still invoke GuideOne=92s duty to = defend.=20 Because the Church is correct, the Court=92s discussions of the = so-called=20 =93eight-corners rule=94, and whether there should ever be exceptions to = it, is=20 unnecessary. I would not address these difficult issues in a case in = which they=20 cannot affect the result. Accordingly, I join only in the Court=92s = judgment.

Doe = sued the=20 Church and Evans, alleging in her petition the following:

At all times material herein, Charles Patrick Evans = was an=20 associate youth minister. At all times material herein, Charles Evans = remained=20 under the retention, direct supervision, agency and control of Defendant = Church.

From approximately early 1992 to 1994, Defendant = Evans was an=20 associate youth minister at Fielder Road Baptist Church in Arlington, = Texas.=20 During this period Fielder Road knew or should have known that Evans = engaged in=20 forbidden sexual conduct which was both actually and potentially = damaging to=20 other persons including Plaintiff. . . . Fielder Road had = knowledge=20 that Evans had made inappropriate sexual advances to other young girls = in the=20 church. Despite these reports, Fielder Road continued to place Evans in = a=20 position as a youth minister with access and authority over young=20 girls.

From approximately 1992 to 1994, Evans sexually = molested Jane=20 Doe at church functions and church sponsored trips, as well as at her = own=20 home.

* * *

Despite allegations of previous incidents, Fielder = Road failed=20 to warn parents of the children in the church youth ministry of the = sexual=20 tendencies of Defendant Evans.

* * *

At all times material herein from 1992 to 1994, = Evans was=20 employed as an associate youth minister and was under Fielder Road=92s = direct=20 supervision and control when he sexually exploited and abused Plaintiff. = Defendant Evans came to know Plaintiff and gained access to her because = of his=20 status as a youth minister. Defendant Evans engaged in this wrongful = conduct=20 while in the course and scope of his employment with Defendant Fielder = Road.=20 Therefore, Defendant Fielder Road is liable for the wrongful conduct of=20 Defendant Evans. Plaintiff therefore pleads Respondeat Superior, = agency,=20 apparent agency and agency by estoppel, vicarious and derivative=20 liability.

Defendant Fielder Road negligently selected, hired = and/or=20 continued the employment of Defendant Evans in a position of trust, = confidence=20 and authority as a youth minister in direct contact with minors when it = knew or=20 should have known of his dangerous sexual propensities.

Fielder Road failed to warn Plaintiff or her family = of Evans=92=20 dangerous sexual propensities.

Fielder Road failed to provide reasonable = supervision of=20 Evans.

Fielder Road, as a religious organization, is = granted special=20 privileges and immunities by society and is in a special fiduciary = relationship=20 with Plaintiff. Defendant owed Plaintiff the highest duty of trust and=20 confidence and is required to act in Plaintiff=92s best interest. = Defendant=20 knowingly violated the relationship. Defendant knowingly breached = Plaintiff=92s=20 trust when Fielder Road failed to act with the highest degree of trust = and=20 confidence to protect Plaintiff from its sexually predatory minister. = This=20 knowing breach of fiduciary duty proximately caused injury to=20 Plaintiff.

* * *

Fielder Road also committed fraud by = misrepresentation that=20 proximately caused Plaintiff=92s damages. Fielder Road committed fraud = when it=20 represented that Evans was sexually safe, when it knew or should have = known of=20 his pedophilic tendencies.

* * *

Plaintiff alleges that the actions of these = Defendants have=20 inflicted emotional distress upon Plaintiff.

Plaintiff alleges that the negligence of Fielder = Road resulted=20 in bodily injury to Plaintiff.

The = Church=20 has stipulated that the petition=92s allegation that =93Evans was an = associate youth=20 minister=94 at the Church from =93approximately early 1992 to 1994=94 is = false.=20 Specifically, the Church has stipulated:

Charles Patrick Evans became a part-time intern in = the youth=20 department of Defendant FRBC on November 14, 1991. On January 1, 1992, = Charles=20 Patrick Evans was hired as a part-time associate in the youth department = of=20 Defendant FRBC. Charles Patrick Evans left employment with Defendant = FRBC on or=20 about December 15, 1992. Charles Patrick Evans never served, nor was he = ever=20 authorized to so act, as an officer or director of Defendant FRBC. = Charles=20 Patrick Evans did not serve, nor was he ever authorized to act, as an = employee,=20 or volunteer of Defendant FRBC at any time after December 1992. Charles = Patrick=20 Evans was officially removed as a member of Defendant FRBC in February = of=20 1993.

From March=20 31, 1993, to March 31, 1994, GuideOne insured the Church against = =93legal=20 liability for damages because of bodily injury . . . to any = person=20 arising out of sexual misconduct which occurs during the policy = period=94 and=20 agreed to =93defend any suit brought against [the Church] seeking = damages, even if=20 the allegations of the suit are groundless, false or fraudulent=94. = GuideOne=20 argues that because the Church did not employ Evans or authorize him to = act on=20 its behalf during that period, Doe=92s accusations are not covered by = the policy.=20 That is simply incorrect.

Doe = alleges=20 that Evans=92 sexually molested her =93[f]rom approximately 1992 to = 1994=94 =97 within=20 the policy period. Doe further alleges that she suffered bodily injury = because=20 of Evans=92 sexual misconduct, for which the Church is liable. If the = Church is=20 correct that it did not employ Evans within the policy period, then = Doe=92s claim=20 against the Church for vicarious liability would fail. But that is = clearly not=20 Doe=92s only claim. She claims that the Church knew or should have known = of Evans=92=20 sexual misconduct from =93approximately early 1992 to 1994=94 and should = have warned=20 her and her family. She also claims that Evans was the Church=92s = apparent agent,=20 that the Church breached its fiduciary duty to her, and that the Church = made=20 misrepresentations to her. Whether those and other claims have merit, = legally or=20 factually, they assert liability against the Church that may not depend = on the=20 period of Evans=92 association with the Church and thus invoke the duty = to defend.=20 GuideOne concedes that if it has a duty to defend any of Doe=92s claims, = it has a=20 duty to defend them all.[1]

The = =93eight-corners=94 rule applies whether the Church=92s stipulation is = considered or=20 not. Thus, we have no need to consider what exceptions the rule might = have, and=20 given the importance of this difficult issue, I would express no opinion = on=20 it.

Accordingly,=20 I concur only in the judgment.

&n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; =20

Nathan L. Hecht

Justice

Opinion=20 delivered: June 30, 2006

^[1] Maryland Cas. Co. v. Moritz, 138 = S.W.2d 1095,=20 1097 (Tex. Civ. App.CAustin 1940, writ ref=3Dd).