Victim can’t force abuser’s insurer to defend him against her lawsuit – 11th Circ

A minor who is suing her sexual abuser for damages cannot force his insurance company to provide him with a defense, a federal appeals court held.

The 11th U.S. Circuit Court of Appeals on Tuesday said the girl, “A.B.,” lacks standing to appeal a declaratory judgment that Nationwide Mutual has no duty to defend her abuser, David J. Barrow, because she has not been injured by that ruling.

Nationwide’s refusal to pay for Barrow’s defense “helps rather than harms” A.B.’s underlying lawsuit against Barrow because she wants his defense to be “weak...not strong,” Chief Circuit Judge William Pryor wrote for the 11th Circuit, paraphrasing a 1995 decision by the 7th Circuit.

Also, the declaratory judgment only affects Nationwide’s relationship with Barrow, Pryor wrote. Since A.B. cannot appeal the ruling, it has "no preclusive effect" on any third-party claim she may have against Nationwide.

Senior Circuit Judge R. Lanier Anderson joined Pryor’s opinion. Circuit Judge Adalberto Jordan concurred in the judgment, saying he could see some “cracks” in its analysis of potential harm but that it was consistent with the only other published cases on point, from the 6th and 7th Circuits.

“I have my doubts about the result in this case, but they are not strong enough to advocate that we create a circuit split,” Jordan wrote.

A.B.’s attorney Gregory Reeves said he does not intend to seek a rehearing.

“I anticipate seeking to establish coverage after obtaining a verdict against Barrow,” Reeves wrote in an email.

Nationwide and its lawyers did not immediately respond to requests for comment.

Barrow did not participate in the action or appeal. He is serving a 30-year sentence as a result of a 2016 plea bargain in Madison County, Alabama, arising out of his abuse of A.B. and another girl.

A.B.’s father sued Barrow on her behalf in state court in 2018. The suit alleged the girl’s mother allowed her to “model” for Barrow in 2014, when A.B. was 10, and that Barrow took sexually explicit photos of A.B. and molested her multiple times.

Nationwide filed a declaratory judgment action in federal court in Northern Alabama after A.B.’s lawyer notified it of her lawsuit. Nationwide argued it had no duty to defend or indemnify Barrow for intentional acts, crimes, or any claim “relating to” sexual misconduct, and that Barrow violated the policy by failing to notify it of A.B.’s claims.

U.S. District Judge Annemarie Carney Axon ruled that Nationwide clearly had no duty to defend Barrow based on the notice requirement, and that it was premature to consider the duty to indemnify.

The 11th Circuit dismissed A.B.’s appeal without reviewing Axon’s rulings.

The case is Nationwide Mutual Insurance Co et al. v. David J. Barrow et al., 11th U.S. Circuit Court of Appeals No. 21-11221.

For Nationwide: Felicia Abernathy Long and David Henderson of Hill, Hill, Carter, Franco, Cole & Black

For Barrow: No appearance

For A.B., a minor, by and through J.B.: Gregory Reeves of Reeves Law Firm

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