Friday, April 17--High Court Finds School Bd. Must Pay Defense Fees

BERLIN - The highest court in Maryland this week rejected an appeal by the Worcester County Board of Education, forcing the school board to reimburse a private insurance company for the defense of a Pocomoke High vice principal sued in 2004 for allegedly assaulting a student by brandishing a knife in his office.

The Maryland Court of Appeals this week decided Worcester County's Board of Education was responsible for paying for the defense of Pocomoke High Vice Principal James Covington in a case filed by a student accusing the administrator of threatening him with a knife back in 2004. The school board and its insurance company refused to pay for the defense because the actions he was accused of fell outside the parameters of their policy.

Covington's defense was later absorbed by a private carrier provided through the state teachers association. He was later cleared of the charges, and the private carrier brought suit against the Board of Education seeking reimbursement for providing the defense. The case winnowed its way through the system before the Court of Appeals opined this week the school board was liable for Covington's defense.

'Our holding in Board of Education v. Mann Insurance made clear there is only one test for determining whether an educator is entitled to a defense under the Education Article and to pass that test, an educator need only to establish a potentiality that the conduct at issue was undertaken in performance of the educator's duties, was within the scope of employment and was without malice,' the high court's opinion reads.

In August 2005, a Pocomoke High student filed a civil suit in Worcester County Circuit Court, alleging Covington had assaulted him back on March 17, 2004. According to the facts of the case, Covington summoned the student to his office because the student had been accused of harassing another student at the school.

According to the student's complaint, filed by a attorney at the behest of his mother, Covington 'closed the door, removed the cord from the handset of the telephone and removed from the bottom drawer of his desk a knife with a six- to seven-inch blade and brandished it directly in front of the student, placing him in fear of imminent harm,' according to the original complaint.

Covington's version of the events differed significantly. In his response to the suit, Covington indicated his duties as vice president require him to address disciplinary issues and he called the student in question to his office that day to address a problem regarding the student's harassment of another student.

Covington stated during the course of the conversation, he did show the student a knife he had confiscated from another student who had brought the weapon to school because he was being harassed by older and bigger kids. Covington indicated he showed the student the knife as an illustration of just how far harassment could go and what it could lead to. Covington denied assaulting the student and stated he only brought out the knife to reinforce his message about the dangers of harassment in school.

Covington asked the Worcester County Board of Education to provide him with a defense in the Circuit Court action, but the board refused to defend Covington because he was charged with assault and that assault could never be without malice, and thus, did not fall within the purview of the Education Article.

Like most Boards of Education, Worcester County's board self-insures through the Maryland Association of Boards of Education Group Insurance Pool, which also refused to provide a defense because it deemed the actions Covington was accused of not covered under its agreement. Ultimately, the Horace Mann Insurance Company provided Covington with a defense pursuant to a liability policy it had with the Maryland State Teachers Association.

The case was eventually tried before a Worcester County jury, which found Covington did not assault the student as charged.

A short time later, Horace Mann Insurance filed an action against the Worcester County Board of Education, suggesting the board had a duty to defend Covington against the allegations and that it breached its duty by not providing a defense for the vice principal. In the action, Horace Mann sought compensation from the Worcester County Board of Education as reimbursement for paying for Covington's defense.

The Worcester County Circuit Court ruled Horace Mann Insurance had a valid claim and agreed the Board of Education must reimburse the company for paying for the vice principal's defense. The Board of Education appealed the low court's decision, asserting the decision 'effectively imposes upon county school boards an absolute duty to defend virtually any claim against a board employee.'

After reviewing the facts of the case, the Court of Appeals last week issued an opinion penned by Judge Clayton Greene, Jr. upholding the lower court's decision and effectively forcing the board to reimburse the insurance company for paying for Covington's defense. The amount owed in reimbursement has not been made public.