Town’s Insurance Company Says It Will Not Cover Lawsuit Against Framingham Schools

The Town’s insurance company says it will not pay for any damages in a lawsuit against the Framingham Public Schools, as school administration failed to notify the insurance company in a timely manner, per the contract.

The Town of Framingham is fighting the decision.

The insurance company notified Superintendent of Schools Stacy L. Scott in a certified letter on March 31, 2014, that it would not cover the lawsuit of Framingham vs Fox, as school administration was aware a suit likely would be filed prior to the Town’s contract with the insurance company on July 1, 2013.

If the Town loses the lawsuit, taxpayers will be liable for all legal bills and any judgement against the Framingham Public Schools and its employees involved in the case of Fox vs Framingham.

Framingham Source requested copies of the Middlesex Court documents of Town of Framingham vs Berkley Assurance Company and Versus Underwriting Mangers LLC, after seeing references to the lawsuit in the Town’s Annual Report filed as part of Framingham Town Meeting earlier this month.

Town Counsel Chris Petrini said the case is still pending in Middlesex Superior Court.

Former Framingham High guidance counselor Kevin Fox filed a civil rights and employment lawsuit against the Town of Framingham, Framingham School Committee and School Department officials on March 5, 2014.

There is no dollar value attached to the lawsuit.

“This (March 5, 2014) complaint was the first I learned of Mr. Fox’s claims,” Petrini told Framingham Source.

Fox’s suit consists of several constitutional, statutory, and civil rights complaints.

In his complaint, Fox said he was retailated against by Framingham School officials for his objection to their response to an alleged sexual assault on a female student, 15, by a male student-athlete, 18, around April 2012.

Fox, in his suit, said school administration ignored or rejected his recommendations in the aftermath of the assault and retailiated against him over the course of several months until he resigned in March 2013.

Fox spoke to several media outlets, online, newspaper, and radio stations calling himself a whistleblower before and after his resignation.

“The complaint was forwarded to me by the Town Clerk on March 5, 2014 and I provided written notice of the claim to Berkley Assurance the next day, March 6, 2014, requesting coverage and a defense for the Town and the School Department defendants,” said Petrini to Framingham Source.

“Berkley/Verus denied coverage on March 31, 2014, based on the insurer’s position that the School Department should have provided notice to the insurer based on events that occurred in December 2012 and March 2013,” said Petrini.

“It is this denial of coverage that the Town is contesting on behalf of the school department,” said Petrini.

Berkley Assurance Company, based in Iowa, alleges that school officials involved in the Fox matter were aware of circumstances that would give rise to a lawsuit under the insurance policy weeks before the July 1, 2013, the inception date of the policy, and failed to notify Berkley.

Since that March 31, 2014 letter to Scott, Berkley Assurance Company has decided not to renew its policy with the Town of Framingham.

The Town contends this is in retaliation of the Town of Framingham’s suit against Berkley on the denial of coverage. The Town amended its suit against Berkleyrecently to reflect that matter.

The Town of Framingham vs Berkley Assurance Company lawsuit is still in the discovery phase, said Petrini.

In July 2014, Petrini was able to successfully argue in Court to get the Town of Framingahm dismissed from the Fox 2014 lawsuit still pending.

Fox is seeking damages from the Framingham School Committee and the individually named school employees named in the lawsuit.

Fox alleges Superintendent of Schools Stacy Scott and Framingham High Vice Principal Jeff Convery violated his civil rights (two counts), intentionally inflicted emotional distress (five counts), and negligent infliction of emotional distress (six counts.)

Fox alleges former Framingham High School Principal Michael Welch (now Superintendent of Schools in Dedham) violated his civil rights (six ounts), intentionally inflicted emotional distress (five counts), and negligent infliction of emotional distress (six counts).

Fox alleges the Framingham School Committee  violated Massachusetts General laws and violated Title IX (three counts).

The former high school guidance counselor is looking for compensatory and punitive damages, compensation for his alledged emotional pain,and  interest, costs ad attorney’s fees associated with the suit.

“The Town, the Framingham School Committee, Scott, Convery and Welch have substantively responded to the Complaint at the expense of Framingham’s taxpayers due to the ongoing coverage dispute,” wrote the Town of Framingham in is suit against Berkley filed in Middlesex Superior Court.

“The Town itself was dismissed as a party to the Fox Action, and certain claims against Scott, Convery and Welch were voluntarily dismissed by the plaintiff in the Fox Action. However, the Framingham School Committee also was added as party to the Fox Action,” states court documents.

“The Town remains interested in the Fox Action, however, where given the coverage dispute the Town and its taxpayers may be liable for all or part of any judgment entered against the remaining defendants in the action,” states the papers filed by the Town of Framingham in court.

On June 12, 2014, the Town sent a written demand for relief pursuant to Massachusetts General Laws by Berkley and Verus. The two companies failed to tender a reasonable offer of settlement.

According to court documents, “an actual controversy exists between the Town and Berkley regarding whether Berkley has an obligation under the Policy to defend and/or indemnify the Town, the Framingham School Committee, Scott, Convery and Welch against the Fox Action.”

The Town of Framingham is requesting the Court make a binding declaration “that Berkley must defend and indemnify the Town, the Framingham School Committee, Scott, Convery and Welch against the Fox Action, award the Town its costs and attorneys fees, and order such other and further relief as this Court deems just and necessary,” according to the court papers.

Fox w0rked for the Framingham Public Schools from August 2002 to March 27, 2013.

According to the insurance company’s court documentsand Massachusetts court documents:

On May 2, 2012, a Framingham High female student, 15, disclosed to Fox that she was sexually assaulted two weeks prior by a male student-athlete in a high school stairway landing. Fox immediately contacted the school’s police resource officer and reported the sexual assault allegation to him. Fox notified the female victim’s mother, whom he met with at the school and also notified the Massachusetts Department of Children and Families of the assault.

In early June 2012, another female victim approached Fox and disclosed to him that she had also been groped by the same male student.

Fox immediately informed the school administration, including Welch and Convery, of this information.

Fox met with Welch and Convery, and following that meeting, Fox met with Scott, the newly-hired school superintendent.

Fox informed him of the assaults and how the matter had been handled to date.

At the conclusion of the meeting, Fox said Scott indicated that he would speak with Welch and get back to him with a response.

In an email on December 4, 2012, Fox again reiterated his objections and concerns over the egregious mishandling of the sexual assault incidents. Shortly after this email was sent to Welch, he began to review all of the Fox’s work records and history of employment with the high school.

On December 7, 2012, the Welch issued a formal reprimand to Fox,both verbal and written, regarding the baseless and frivolous allegation that Fox was inadequately providing counseling services to a student. The reprimand was grieved by Fox  and subsequently removed from his personnel file following a review of Welch’s disciplinary action.

A grievance was filed on December 14, 2012. The grievance states the School violated the collective bargaining agreement between parties when the School verbally reprimanded the grievant and provided written documentation of the verbal reprimand without just cause.

Following the reversal of the discipline against Fox, he reiterated his concerns to Scott that he was being bullied into silence.

The complaint states the hostile environment created by Welch ultimately made Fox’s work situation untenable.

According to court documents, “The Defendants made it abundantly clear that the Plaintiff was not wanted as an employee, and that he would be systematically retaliated against until he was no longer employed by the Town. It is stated the Defendants retaliated against the Plaintiff for his complaints regarding the school’s non-compliance with Title IX, both with respect to the Plaintiff complaining about theirdeliberate indifference to the sexual harassment that took place, as well as the school’s non-compliance with Title IX mandate.”

On March 27, 2013, Fox issued his resignation and ended his employment with the Town and Framingham High School.

“The Complaint states that this resignation was in direct response to the pervasive retaliation against him by the Defendants. The Plaintiff’semployment termination represented constructive discharge on the part of the Defendants,” stated the letter from the insurance company summarizing the Fox suit.

Berkley, and its independent counsel, both concluded the Framingham Public School administration was aware a lawsuit was likely prior to the contract of July 1, 2013, and thus denied coverage of the Framingham vs Fox suit.

The Fox lawsuit against the School Committee and School leaders could go to trial later this year.

 

Framingham Source Editor Susan Petroni

Susan Petroni Framingham Source Editor Email: editor@FraminghamSource.com Phone: 508-315-7176

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