Berkshire off hook in sexual assault on school bus

A federal appeals court has reversed a lower court and held that a Berkshire Hathaway Inc. unit does not have to defend or indemnify the Pittsburgh Public School District or a bus company in a special needs student’s sexual assault aboard a school bus.

Pittsburgh-based Brimar Transit Inc. transported students for the Pittsburgh School District, including an adolescent girl, K.M., with developmental challenges, according to Friday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in National Liability & Fire Insurance Co. v. Brimar Transit Inc., Pittsburgh Public School District.

Traveling on the bus with her each day was a 12-year-old boy with similar challenges who had sexually assaulted K.M. multiple times, including during gym class, the ruling said.

The gym incident led the district and bus company to craft a specific plan to separate K.M. from the male student, under which K.M. sat right behind the driver while the male student sat in the rear. 

But in April 2016, a substitute driver did not follow the plan, which allowed the male student to sexually assault K.M. Despite being only several feet away during the assault, and other children’s cries, the driver did not intervene, or acknowledge the attack, the ruling said.

Berkshire unit National Liability defended Brimar in the state court action, but refused to defend the district. National sued in U.S. District Court in Pittsburgh, seeking declarations it had no duty to defend or indemnify the defendants. The district court ruled against the insurer in separate rulings.

The rulings were overturned by a three-judge appeals court panel. Under Pennsylvania law, to trigger coverage, “underlying bodily injury must be causally connected to the use of the insured vehicle as a motor vehicle,” the ruling said. 

“K.M’s allegations that her injuries resulted from use of the bus – simply because she was a passenger on the bus when the injuries occurred – fails under Pennsylvania law,” the ruling said, holding that “the complaint did not forge a strong enough link between the use of the school bus and K.M.’s injuries.”

Attorneys in the case did not respond to requests for comment.