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Schools Insurance Case Rejected: Mother Says Claim Denied After 5-Year-Old Allegedly Molested

Posted on: Saturday, 15 April 2006, 03:03 CDT

By Brandon Ortiz, The Lexington Herald-Leader, Ky.

Apr. 15--A Fayette judge yesterday dismissed a lawsuit over how an insurance trust handled a claim that a 5-year-old was allegedly molested by a kindergarten classmate.

But the legal fight appears far from over.

Trial lawyer J. Dale Golden says he will ask Circuit Judge Sheila Isaac to set aside her ruling. He will ask to name the Fayette County School Board and an elementary school teacher as defendants in the suit, filed last month against Kentucky School Boards Insurance Trust.

The suit says the girl was molested by another student at an undisclosed Lexington elementary school in November. The girl's mother complained to a teacher, who did not file a police report and failed to prevent the abuse from occurring again, according to the suit.

It claims that when Golden tried to negotiate a settlement, a school board attorney responded with a letter that contained what Golden perceives as an implied threat that the district would seek criminal charges against the girl.

Superintendent Stu Silberman, commenting for the first time, said Golden is purposefully distorting the letter and quoting it out of context.

"I think that anyone with any common sense will see that there is no intent to file criminal charges against the student," Silberman said. "I think also that we are at a point where this is getting pretty ridiculous. We're dealing with two 5-year-olds."

The lawsuit, as it stands now, is not directly related to the mother's allegations; rather, it says the insurance trust violated the Unfair Claims Settlement Practices Act by ignoring the mother's insurance claim.

Kentucky law requires insurance companies to investigate claims, but they can deny them if they find -- in good faith -- that the claim is meritless.

Insurance trust attorney Guy R. Colson says there's never been a finding that the school board is even liable. Until then, the mother cannot sue, he said.

Golden is trying to use a technicality to sue the trust, Colson said. "To just out of the box, sue an insurance company -- you just can't do it."

Golden disputed that interpretation, saying it renders claims-handling laws meaningless. He says it gives insurance companies the legal right to ignore injured persons until they successfully sue the insured customer, forcing them into a lengthy and expensive legal battle.

"In this case, we have a 5-year-old little girl," Golden said. "It is all the more reason to step up to the plate."

But on March 1, Fayette School Board attorney Robert Chenoweth faxed Golden a letter saying that an investigation showed the girl was not abused and that the mother's settlement demands were meritless.

Chenoweth, of Frankfort, wrote that a 5- or 6-year-old classmate touching a peer does not constitute sexual harassment. He also found it hard to believe that such a young child could form "sexual desire."

"There is, in fact, a reasonable argument to be made that the curiosity of a child of that tender age is normal," Chenoweth wrote, "and that the emotionally distressing aspect of the situation is the response of a parent, personal injury lawyer or mental health professional who 'makes a mountain out of a molehill' and manages to convince the otherwise naive child that he/she is a victim ..."

The school board's investigation showed "that your client does not come into this matter with 'clean hands,'" Chenoweth wrote. "The facts known to me indicate your minor client solicited contact from the other student and even threatened the other student if the requested touching did not occur."

If the alleged touching is indeed sexual abuse, Chenoweth said, then the girl's contact must necessarily be unlawful transaction with a minor or inducing a minor to engage in sexual activity.

Chenoweth said that if Golden filed a lawsuit against the board, the school district is prepared to take its chances with a jury.

Golden says that's a threat, and sought yesterday to link the case to a controversial lawsuit.

Last year a Fayette jury awarded $3.5 million in damages to Melinda Lewis Cobb, the former Leestown Middle School principal fired after bringing a gun to school in March 1999.

Nine jurors found that the school district violated the state's whistle-blower act and that former superintendent Peter Flynn abused his administrative powers trying to oust her.

School officials have said Cobb was fired out of legitimate public safety concerns. They are appealing the verdict.

After she filed the lawsuit, former administrators had district police charge Cobb with felony charges of possession of a weapon on school property, Golden argued then.

A grand jury dismissed the charges, "because it is a bogus claim," Golden said.

"These are not idle threats," said Golden, referring to the mother's case. "I had to go through Mr. Chenoweth for the police reports. Those police officers report directly to the superintendent. So they control all that investigation."

But Silberman said school police act independently. Administrators have no input.

He said district police investigated the incident and found no abuse. It was also reported to Child Protective Services.

"Nobody found any reason to pursue a criminal action," he said.

The Herald-Leader, which does not normally name alleged victims of sexual abuse, is not naming the girl's mother because it could identify the girl.

Reach Brandon Ortiz at (859) 231-1443, 1-800-950-6397, Ext. 1443, or bortiz@herald-leader.com [mailto:bortiz@herald-leader.com].

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Copyright (c) 2006, The Lexington Herald-Leader, Ky.

Distributed by Knight Ridder/Tribune Business News.

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Source: Lexington Herald-Leader (Lexington, Ky.)

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