Harleysville Preferred Ins. Co. v. Rams Head Savage Mill, LLC

Harleysville Preferred Insurance Company, et al., v. Rams Head Savage Mill LLC, et al.,
No. 2409, September Term, 2016. Opinion by Fader, J.

INSURANCE – PLEADINGS – DUTY TO DEFEND

Where plaintiffs in tort suits against insured alleged claims covered by the insurance policy,
the insurer had a duty to defend. Even if the tort plaintiffs do not allege facts that clearly
bring a claim within policy coverage, the insurer must defend if there is a potentiality that
the claim could be covered by the policy.

INSURANCE – POLICY INTEREPRETATION

Restaurant’s commercial general liability policy providing coverage for “personal and
advertising injury” arising out of “invasion of the right of private occupancy of a room,
dwelling or premises that a person occupies, committed by or on behalf of its owner,
landlord or lessor” unambiguously applied to claims of invasion of privacy caused by an
insured’s act of surreptitiously surveilling female patrons in the restaurant’s single-
occupancy restroom.

INSURANCE – POLICY INTERPRETATION

A policy provision granting coverage for “the wrongful eviction from, wrongful entry into,
or invasion of the right of private occupancy” did not require that a claimant alleging an
invasion of a right of private occupancy also allege a possessory interest in the property to
fall within the coverage grant.

DECLARATORY JUDGMENT – EXTRINSIC EVIDENCE

Where a party attempted to contest coverage by using extrinsic evidence to resolve an issue
that is to be determined in the underlying litigation, it was appropriate to defer resolution
of that issue to the underlying litigation.

INSURANCE – APPLICATION OF CRIMINAL ACTS EXCLUSION

Where allegations of an underlying complaint did not allow for the potentiality that an
insured engaged in conduct that was not criminal, coverage was barred under the policy’s
exclusion for conduct arising out of the criminal acts. Because the tort of unreasonable
intrusion upon seclusion does not require criminal intent, the exclusion did not render
coverage illusory.
Circuit Court for Howard County
4273 Case No. 13-C-15-104273
REPORTED
4273
IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2409

September Term, 2016

HARLEYSVILLE PREFERRED
INSURANCE COMPANY, et al.

v.

RAMS HEAD SAVAGE MILL, LLC, et al.

Friedman,
Fader,
Rodowsky, Lawrence F.
(Senior Judge, Specially Assigned),

JJ.*

Opinion by Fader, J.

Filed: June 28, 2018

*Judge Timothy E. Meredith did not participate
in the Court’s decision to designate this opinion
for publication pursuant to Md. Rule 8-605.1.
Appellants Harleysville Preferred Insurance Company and Nationwide Mutual

Insurance Company (collectively, “Harleysville”) ask us to decide that they had no

obligation to provide a defense for two lawsuits filed against their insured, Rams Head at

Savage Mill, LLC (“Rams Head”), and Rams Head’s general manager and majority owner,

Kyle Muehlhauser. The underlying lawsuits sought damages arising from Mr.

Muehlhauser’s surreptitious videotaping of women who were using a restroom at a

restaurant and tavern owned by Rams Head.

We conclude that Harleysville had a duty to defend Rams Head. Harleysville issued

insurance policies that provide coverage for damages Rams Head becomes legally

obligated to pay because of, among other offenses, the “invasion of the right of private

occupancy of a room . . . that a person occupies, committed by or on behalf of its owner

. . . .” Under the plain language of the coverage grant, we conclude that the underlying tort

suits alleged that Rams Head and Mr. Muehlhauser invaded the plaintiffs’ right of private

occupancy of the restroom when Mr. Muehlhauser conducted his unauthorized video

surveillance. We also conclude that an exclusion for “Recording and Distribution of

Material or Information in Violation of Law” does not preclude coverage.

Harleysville did not, however, have a duty to defend Mr. Muehlhauser because

coverage for him is excluded by the policies’ Criminal Acts exclusion. There is no version

of facts alleged in the complaints under which Mr. Muehlhauser’s alleged conduct is not

criminal. We therefore affirm in part and reverse in part.
BACKGROUND

Rams Head is a Maryland limited liability company that owns and operates the

Rams Head Tavern. Rams Head’s operating agreement designates Mr. Muehlhauser as

general manager and majority owner of the company and gives him “full, exclusive, and

complete discretion, power, and authority . . . to manage, control, administer, and operate

the business and affairs” of Rams Head.

Rams Head leases the property on which it operates the Rams Head Tavern from

Savage Mill Limited Partnership under a long-term lease that was originally entered in

1998. During the term of that lease, provided Rams Head pays its rent and abides by the

other terms of the lease, Rams Head “shall peaceably and quietly hold and enjoy the Leased

Premises . . . without hindrance or interruption by Landlord or any other person or persons

. . . .” Rams Head is permitted to make improvements, and is responsible for making

repairs, renovations, and renewals to the leased property, subject to approval by Savage

Mill. Savage Mill is permitted to make changes to the leased property only with the

approval of Rams Head. The circuit court found that Rams Head exercised “exclusive

control” over the restaurant.

The Underlying Incident

In May 2014, a Rams Head Tavern patron was using its single-occupancy women’s

restroom when a portable camera fell onto the floor from underneath the sink, close to the

toilet. She reported the incident to the police, who identified Mr. Muehlhauser as the

culprit. In July 2015, Mr. Muehlhauser pleaded guilty to two counts of conducting video

2
surveillance with prurient intent in violation of § 3-902 of the Criminal Law Article (2012

Repl.; 2017 Supp.).1

Two different sets of plaintiffs filed class action complaints in the Circuit Court for

Howard County against Rams Head and Mr. Muehlhauser. In Michelle Castle, et al. v.

Kyle C. Muehlhauser, et al. (Case No. 13-C-15-102598), the plaintiffs alleged that from

March 2, 2012 to May 9, 2014, Mr. Muehlhauser mounted a camera in the women’s

restroom at Rams Head Tavern to “conduct visual surveillance of the female patrons and

employees using the toilets . . . solely for prurient intent” in “an attempt to satiate his sexual

perversions at the expense of the privacy of the female patrons and employees.” The

complaint further alleged that Mr. Muehlhauser was “at all times . . . acting in the scope of

his employment and/or authority as a principal and employee of” Rams Head and that

Rams Head “adopted and ratified” his conduct.

1
Section 3-902(c) of the Criminal Law Article provides, in relevant part:

A person may not with prurient intent conduct . . . visual surveillance of
(1) an individual in a private place without the consent of that individual; or
(2) the private area of an individual by use of a camera without the consent
of the individual under circumstances in which a reasonable person would
believe that the private area of the individual would not be visible to the
public, regardless of whether the individual is in a public or private place.

The statute defines “visual surveillance” as “the deliberate, surreptitious observation of an
individual by any means[,]” including with “the use of cameras.” Crim. Law § 3-902(a)(6).
“Private place” includes any “room in which a person can reasonably be expected to fully
or partially disrobe and has a reasonable expectation of privacy, in,” among other places, a
“restaurant or tavern.” Id. § 3-902(a)(5)(i). “Private place” expressly includes a
“restroom.” Id. § 3-902(a)(5)(ii).

3
The Castle complaint brought claims against Rams Head and Mr. Muehlhauser for

(1) violation of § 3-902 of the Criminal Law Article, which criminalizes certain visual

surveillance with prurient intent and also creates a private cause of action for individuals

subjected to unlawful surveillance, and (2) the tort of unreasonable intrusion upon

seclusion. The complaint alleged that Ms. Castle and the other putative plaintiffs incurred

damages including “expenses, mental pain and suffering, fright, nervousness, indignity,

humiliation, embarrassment and insult.”

The plaintiffs in Felicia Barlow Clar, et al. v. Kyle C. Muehlhauser, et al. (Case No.

13-C-15-102863), similarly alleged that Mr. Muehlhauser, “both individually and in his

capacity as President, General Manager, and Owner of the Rams Head . . . did plant video

recording equipment in the ladies[’] restroom for the purpose of videotaping women

patrons and employees in the restroom without their permission.” The Clar plaintiffs,

women who used the restroom at the Rams Head Tavern between January and May of

2014, alleged that “[a]t all relevant times, Defendant Muehlhauser did violate Md. Code

Ann., Crim. Law § 3-902 . . . .”

The Clar complaint brought seven causes of action: negligent hiring, retention,

supervision, selection and qualification (Count I); intrusion upon seclusion (Count II);

breach of contract and of the implied duty of good faith and fair dealing (Count III);

violation of § 3-902 of the Criminal Law Article (Count IV); negligent violation of § 3-902

of the Criminal Law Article (Count V); negligent entrustment (Count VI); and intentional

infliction of emotional distress (Count VII). Counts II, III, IV, V, and VII were brought

against Rams Head and Mr. Muehlhauser. Mr. Muehlhauser was not named as a defendant

4
in Counts I and VI. The plaintiffs alleged that, as a result of the conduct of Mr.

Muehlhauser and Rams Head, they “suffered severe humiliation, violation, anxiety, loss of

dignity, emotional distress, mental anguish, and loss of valuable consideration.” In Count

VII, they further alleged that they “sustained severe emotional distress resulting in physical

manifestations, emotional anguish, fear, anxiety, humiliation, embarrassment and other

physical and emotional injuries . . . .”

The Harleysville Policies

During the period covered by the allegations in the complaints—from March 2012

through May 2014 for the Castle complaint and from January 2014 through May 2014 for

the Clar complaint—Harleysville insured Rams Head under three one-year commercial

lines insurance policies. For policies running from December 1, 2011 through December

1, 2012 and December 31, 2012 through December 31, 2013, respectively,2 policy

provisions relevant to this dispute were supplied on Harleysville’s Commercial General

Liability Coverage Form CG 00 01 12 04 (the “04 Policy Form”). From December 31,

2013 through December 31, 2014, relevant policy provisions were supplied on Form CG

00 01 12 07 (the “07 Policy Form”). Rams Head was listed as a named insured under each

policy, and each included within the definition of “an insured” the members and managers

of the named insureds, but only to the extent of their respective roles. Because the policy

provisions were essentially identical each year, with one notable exception identified

below, we discuss them collectively.

2
The parties have not explained or raised any issues regarding the apparent gap
between the end of the first policy and the beginning of the second.

5
The policies each provided grants of coverage for bodily injury and property

damage liability (Coverage A) and personal and advertising liability (Coverage B). Under

Coverage A, Harleysville agreed to “pay those sums that the insured becomes legally

obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this

insurance applies.” Coverage A excludes property damage or bodily injury that is

“expected or intended from the standpoint of the insured.” In addition to this duty to

indemnify, the parties agreed that Harleysville would also have “the right and duty to

defend the insured against any ‘suit’ seeking those damages,” but only if such damages

would be covered by the policies.

Under Coverage B, Harleysville agreed to “pay those sums that the insured becomes

legally obligated to pay as damages because of ‘personal and advertising injury’ to which

this insurance applies,” including any such injury “caused by an offense arising out of your

business” during the policy period. “‘Personal and advertising injury’ means injury,

including consequential ‘bodily injury,’ arising out of” seven enumerated categories of

offenses. Most relevant here is “[t]he wrongful eviction from, wrongful entry into, or

invasion of the right of private occupancy of a room, dwelling or premises that a person

occupies, committed by or on behalf of its owner, landlord or lessor.” As with Coverage

A, in Coverage B Harleysville also undertook “the right and duty to defend the insured

against any ‘suit’ seeking [] damages” for personal and advertising injury covered by the

policy.

Harleysville invokes three coverage exclusions contained in the policies. First, only

with respect to the policy in place from December 31, 2013 through December 31, 2014

6
(the “2014 Policy”), the “Recording and Distribution of Material or Information in

Violation of Law” exclusion (the “Recording and Distribution exclusion”) precludes

coverage under both Coverage A and Coverage B for injuries “arising directly or indirectly

out of any action or omission that violates or is alleged to violate” three specific statutes—

the Telephone Consumer Protection Act (“TCPA”), the CAN-SPAM Act of 2003, and the

Fair Credit Reporting Act (“FCRA”)—or

[a]ny federal, state, or local statute, ordinance or regulation, other than the
TCPA, CAN-SPAM Act of 2003 or FCRA and their amendments and
additions, that addresses, prohibits, or limits the printing, dissemination,
disposal, collecting, recording, sending, transmitting, communicating or
distribution of material or information. [3]

Second, the “Criminal Acts” exclusion exempts from Coverage B injuries “arising

out of a criminal act committed by or at the direction of the insured.” Third, the “Knowing

Violation of Rights of Another” exclusion (the “Knowing Violation exclusion”) precludes

coverage under Coverage B for injuries “caused by or at the direction of the insured with

the knowledge that the act would violate the rights of another and would inflict ‘personal

and advertising injury’.”

3
The 04 Policy Form, which was applicable to the Harleysville policies in place
before December 31, 2013, had a narrower version of this exclusion, titled “Distribution of
Material in Violation of Statutes.” That exclusion, which Harleysville does not contend
applies here, precluded coverage for injuries arising from the TCPA, the CAN-SPAM Act
of 2003, or “any statute, ordinance or regulation other than the TCPA or CAN-SPAM Act
of 2003, that prohibits or limits the sending, transmitting, communicating or distribution
of material or information.”

7
The Declaratory Judgment Action

Harleysville sought a declaratory judgment that it did not owe a defense to Rams

Head or Mr. Muehlhauser with respect to either underlying action. Harleysville argued

that the complaints did not allege injuries covered under either Coverage A or Coverage B

and, with respect to the 2014 Policy, that the Recording and Distribution exclusion

precluded coverage. Harleysville further argued that Mr. Muehlhauser does not qualify as

an insured under the policies because the Criminal Acts and Knowing Violation exclusions

preclude coverage for him.

After a hearing, the circuit court issued a memorandum opinion and declaration that

Harleysville had a duty to defend Rams Head and Mr. Muehlhauser against both

complaints. The court observed that the duty to defend “depends on whether the

allegations” in a complaint “potentially come[] within the Policy coverage,” regardless of

whether the claims have a “probability of success.” Thus, the court concluded, Harleysville

had an obligation under Coverage A to provide a defense for Rams Head to the Clar

complaint, which the court concluded “clearly set[] forth numerous ‘occurrences’” of

negligence by Rams Head that “enabled” Mr. Muehlhauser to conduct surveillance in the

restroom, causing “bodily injury” to the plaintiffs.

The court held that both defendants were entitled to a defense under Coverage B,

specifically the policy’s coverage for injuries arising from an alleged “invasion of the right

of private occupancy of a room . . . that a person occupies, committed by or on behalf of

its owner.” Finding that coverage grant to be ambiguous, the court interpreted it in the

light most favorable to the policyholder. The court further rejected Harleysville’s reliance

8
on exclusions, concluding that: (1) the Recording and Distribution exclusion is limited to

the protection of “personal and financial” information; and (2) the Knowing Violation and

Criminal Acts exclusions are invalid under Bailer v. Erie Ins. Exch., 344 Md. 515 (1997),

because applying them would render the coverage grant illusory. Because the complaints

alleged that Mr. Muehlhauser was, at all relevant times, acting on behalf of Rams Head,

the court also concluded that Harleysville owed a duty to defend Mr. Muehlhauser. In light

of the pendency of the underlying cases, the court declined to accept extrinsic evidence to

resolve whether Mr. Muehlhauser was actually acting on behalf of Rams Head.

Both underlying complaints have now been resolved finally in favor of Rams Head

and Mr. Muehlhauser.4 As a result, the sole remaining coverage issue is whether

Harleysville had a duty to defend.

DISCUSSION

“When an action has been tried without a jury, the appellate court will review the

case on both the law and the evidence. It will not set aside the judgment of the trial court

on the evidence unless clearly erroneous . . . .” Maryland Rule 8-131(c). “To the extent

this case involves questions of law, including the interpretation of a contract, we review

for legal error.” White Pine Ins. Co. v. Taylor, 233 Md. App. 479, 493 (2017); see Clickner

4
As we explained in our unreported opinion affirming the entry of summary
judgment for Rams Head and Mr. Muehlhauser in Clar, none of the named plaintiffs could
demonstrate either that they had used the restroom at the Rams Head Tavern on the only
day on which there was evidence that Mr. Muehlhauser had placed a video camera there or
that Mr. Muehlhauser had videotaped them at any other time. Clar v. Muehlhauser, No.
851, Sept. Term 2016, 2017 WL 2962816, *5 (July 12, 2017).

9
v. Magothy River Ass’n, 424 Md. 253, 266-67 (2012) (“Where a case involves both issues

of fact and questions of law, this Court will apply the appropriate standard to each issue.”).

Whether an insurer has a duty to defend “is determined by the allegations in the tort

actions. If the plaintiffs in the tort suits allege a claim covered by the policy, the insurer

has a duty to defend.” Brohawn v. Transamerica Ins. Co., 276 Md. 396, 407 (1975). We

employ a two-part test to make this determination. First, we determine the “coverage[s]

and . . . the defenses under the terms and requirements of the insurance policy.” St. Paul

Fire & Marine Ins. Co. v. Pryseski, 292 Md. 187, 193 (1981). Second, we review the

allegations of the underlying suit to determine whether they “potentially bring the tort claim

within the policy’s coverage.” Id. “Even if a tort plaintiff does not allege facts which

clearly bring the claim within or without the policy coverage, the insurer still must defend

if there is a potentiality that the claim could be covered by the policy.” Brohawn, 276 Md.

at 408. The scope of the duty to defend is broad; it applies whenever a tort plaintiff brings

an “action that is potentially covered by the policy, no matter how attenuated, frivolous, or

illogical that allegation may be.” Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 643

(1996).

To address the first part of this test, we must construe the relevant language of the

policy according to contract principles. Md. Cas. Co. v. Blackstone Int’l Ltd., 442 Md.

685, 694 (2015). “Maryland follows the law of objective contract interpretation.” Sy-Lene

of Wash., Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 166 (2003). Thus, “[i]n

construing insurance contracts in Maryland we give the words of the contract their ordinary

and accepted meaning, looking to the intention of the parties from the instrument as a

10
whole.” Taylor, 233 Md. App. at 498 (quoting Finci v. Am. Cas. Co., 323 Md. 358, 369-

70 (1991)). We must construe a contract “as a whole” and give effect “to every clause and

phrase.” Taylor, 233 Md. App. at 498 (quoting Phila. Indem. Ins. Co. v. Md. Yacht Club,

Inc., 129 Md. App. 455, 468 (1999)).

“Although Maryland does not follow the rule that insurance contracts should be

construed against the insurer . . . , any ambiguity will be ‘construed liberally in favor of the

insured and against the insurer as drafter of the instrument.’” Blackstone Int’l Ltd., 442

Md. at 695 (quoting Dutta v. State Farm Ins. Co., 363 Md. 540, 556 (2001)). We “ascertain

the intent of the parties from the policy as a whole, considering extrinsic and parol evidence

to construe any ambiguity.” Connors v. Gov’t Emps. Ins. Co., 442 Md. 466, 483 (2015).

“The court’s analysis should ‘accord words their ordinary and accepted meanings’” to

ascertain “what meaning a reasonably prudent layperson would attach to the term.” Taylor,

233 Md. App. at 499 (quoting JMP Assocs., Inc. v. St. Paul Fire & Marine Ins. Co., 345

Md. 630, 635 (1997)). “If the language in an insurance policy suggests more than one

meaning to a reasonably prudent layperson, it is ambiguous.” State Farm Mut. Auto. Ins.

Co. v. DeHaan, 393 Md. 163, 193 (2006) (quoting Sullins v. Allstate Ins. Co., 340 Md. 503,

508 (1995)).

Because “exclusions are designed to limit or avoid liability, they will be construed

more strictly than coverage clauses and must be construed in favor of a finding of

coverage.” Megonnell v. United Servs. Auto. Ass’n, 368 Md. 633, 656 (2002) (quoting Eric

Mills Holmes & Mark S. Rhodes, 2 Holmes’s Appleman on Insurance § 7.2, at 276-81

11
(Eric Mills Holmes ed., West 1996). Insurers thus must draft exclusionary provisions

“conspicuously, plainly and clearly.” Id.

I. HARLEYSVILLE HAD A DUTY TO DEFEND AGAINST CLAIMS THAT RAMS
HEAD INVADED THE UNDERLYING PLAINTIFFS’ RIGHT OF PRIVATE
OCCUPANCY OF THE RAMS HEAD TAVERN’S RESTROOM.

A. The Plain Language of the Coverage Grant

The coverage grant on which Rams Head primarily relies requires Harleysville to

provide a defense to claims for damages based on the “wrongful eviction from, wrongful

entry into, or invasion of the right of private occupancy of a room, dwelling or premises

that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Rams

Head argues that this coverage grant obligates Harleysville to defend it because the Clar

and Castle complaints alleged that (1) the plaintiffs had a right to occupy the private

restroom at the Rams Head Tavern, (2) the plaintiffs in fact occupied that room,

(3) Mr. Muehlhauser, acting on behalf of Rams Head, invaded that right of private

occupancy by his video surveillance, and (4) Rams Head, by virtue of its control over the

restroom, was its owner for purposes of this coverage grant.

Harleysville disagrees that the coverage grant applies to these allegations. Relying

heavily on the fact that it is paired in the policy with the concepts of “wrongful eviction”

and “wrongful entry,” Harleysville argues that to have a “right of private occupancy in a

room,” one must have a possessory interest in the room. Because the plaintiffs lacked any

such interest, Harleysville contends that their claims do not fall within the coverage grant.

Harleysville also argues that Rams Head was not the “owner” of the restroom because it

was merely a lessee of the premises, which were instead owned by non-party Savage Mill.

12
To determine who is correct, we turn to the plain meaning of the relevant policy

terms. JMP Assocs., Inc., 345 Md. at 635. We start with the specific policy language

under which Rams Head claims an entitlement to coverage, an “invasion of a right of

private occupancy in a room.” “Occupancy,” as commonly understood, is “the action or

fact of occupying a place.” New Oxford American Dictionary, “occupancy,” at 1213 (3d

ed. 2010); see also Merriam-Webster’s Collegiate Dictionary, “occupancy,” at 858 (11th

ed. 2014) (“the fact or condition of holding, possessing, or residing in or on something”).

Common meanings of “occupy” similarly include “to take up (a place or extent in space),”

“to take or hold possession or control of,” and “to reside in as an owner or tenant,” all in

Merriam-Webster’s Collegiate, “occupy,” at 858; and “reside or have one’s place of

business in,” “fill or take up,” or “be situated in or at,” all in New Oxford American,

“occupy,” at 1213. Although each of these sets of definitions of “occupy” includes one

that references “resid[ing]” in a place, the others reference more generic concepts of taking

up space or having temporary possession of a place. Indeed, the use of variants of “occupy”

and “occupied” specifically to identify one’s temporary possession of a restroom (e.g., on

an airplane) are common.

The word “occupancy” appears as part of the phrase “right of private occupancy.”

The question is thus not just whether a person claims to have been occupying a particular

“room, dwelling or premises,” but whether that person claimed a “right” to occupy that

location in private. We conclude that, in Maryland, a patron of a business using that

business’s restroom stall for its intended purpose has a right to do so in private. We need

look no further than § 3-902 of the Criminal Law Article, the statute under which Mr.

13
Muehlhauser was convicted and on which the underlying plaintiffs relied, to find a

statutory embodiment of this right. Section 3-902(a) prohibits a person from conducting

nonconsensual visual surveillance of an individual in a private place with prurient intent.

The statute defines “private place” to mean “a room in which a person can reasonably be

expected to fully or partially disrobe and has a reasonable expectation of privacy,”

including a “restroom” in, among other places, a “restaurant or tavern.” Crim. Law

§ 3-902(a)(5)(i) and (6). We conclude that the plain meaning of the phrase “right of private

occupancy” covers the right of an individual who is occupying a single-occupancy

restroom in a restaurant or tavern for its intended purpose to do so in private.

We also have no trouble in concluding that video surveillance of the activities of an

individual who is using a restroom stall in a restaurant or tavern for its intended purpose

constitutes an “invasion” of that right. That is, again, conclusively established by the

criminal penalties and private right of action created by § 3-902 itself. Maryland also

recognizes a cause of action for intrusion upon seclusion, which is “the intentional intrusion

upon the solitude or seclusion of another or his private affairs or concerns that would be

highly offensive to a reasonable person.” Pemberton v. Bethlehem Steel Corp., 66 Md.

App. 133, 163 (1986) (citing Restatement (Second) of Torts § 652B (1977)).5 As with other

privacy torts, whether conduct is “highly offensive” is based on a test of reasonableness.

See Beane v. McMullen, 265 Md. 585, 600-01 (1972) (stating that “rea[s]onableness under

the facts presented is the determining factor” for invasion of privacy claims generally).

5
Harleysville argues that privacy torts require publication. Intrusion upon seclusion
has no such requirement. Restatement (Second) of Torts § 652B (1977).

14
Thus, “we ask whether there has been an ‘intrusion into a private place or the invasion of

a private seclusion that the plaintiff has thrown about his person or affairs.’” Furman v.

Sheppard, 130 Md. App. 67, 73 (2000) (quoting Pemberton, 66 Md. App. at 163). Video

surveillance of a person’s activities in a private restroom stall easily meets that standard.

We conclude that the plain meaning of the phrase “invasion of the right of private

occupancy of a room, dwelling or premises that a person occupies,” if construed on its

own: (1) is unambiguous; and (2) encompasses allegations that an insured conducted video

surveillance of individuals using a restroom stall on its premises. We now turn to examine

whether other language in the policies compels a different conclusion.

B. The Plain Language of the Coverage Grant in Context

Because we do not analyze contractual language in isolation, Taylor, 233 Md. App.

at 498, we must look at the broader context of the coverage grant to determine the scope of

coverage, Moscarillo v. Prof’l Risk Mgmt. Servs. Inc., 398 Md. 529, 540 (2007) (“Maryland

Courts should examine the character of the [insurance] contract, its purpose, and the facts

and circumstances of the parties at the time of the execution.”) (quoting Litz v. State Farm

Fire & Cas. Co., 346 Md. 217, 224-25 (1997). Harleysville correctly points out that the

language “invasion of the right of private occupancy of a room” does not appear alone in

the policy. In particular, Harleysville highlights that this phrase appears with two others,

“wrongful eviction from” and “wrongful entry into,” each of which requires the claimant

to allege that she or he has a possessory interest in the property at issue. Based on the

doctrine of ejusdem generis, Harleysville argues that this construction requires that a

15
claimant alleging an invasion of a right of private occupancy must also allege a possessory

interest in the property to fall within this coverage grant.

Ejusdem generis, meaning “of the same kind or class,” is a “canon of construction

holding that when a general word or phrase follows a list of specifics, the general word or

phrase will be interpreted to include only items of the same class as those listed.” Black’s

Law Dictionary, “ejusdem generis,” at 631 (10th ed. 2014). Maryland courts have applied

this doctrine to the construction of statutes when: (1) there is “an enumeration by specific

words”; (2) “the members of the enumeration suggest a class”; (3) “the class is not

exhausted by the enumeration”; (4) the enumeration is supplemented, and generally

followed, by a “general reference”; and (5) the statute does not “clearly manifest[] an intent

that the general term be given a broader meaning than the doctrine requires.” Tribbitt v.

State, 403 Md. 638, 657 (2008) (quoting In re Wallace W., 333 Md. 186, 190 (1993)). The

doctrine “is based on ‘the supposition that if the legislature had intended the general words

to be construed in an unrestricted sense, it would not have enumerated the specific things.’”

In re Wallace W., 333 Md. at 190 (quoting State v. One Hundred & Fifty-Eight Gaming

Devices, 304 Md. 404, 429 n.12 (1985)). The legislature is thus saved from having to

“spell[] out in advance every contingency in which the statute could apply.” Id. at 190-91

(quoting 2A Sutherland Statutes & Statutory Const. § 47.17, at 188 (5th ed. 1992)). “The

doctrine is applicable to contracts as well as to statutes, and has been applied to insurance

policies.” Neuman v. Travelers Indem. Co., 271 Md. 636, 646 (1974).

In In re Wallace W., the Court of Appeals applied the doctrine to a statute

proscribing the unauthorized use of “any horse, mare, colt, gelding, mule, ass, sheep, hog,

16
ox or cow, or any carriage, wagon, buggy, cart, boat, craft, vessel, or any other vehicle

including motor vehicle as defined in the laws of this State relating to such, or property

whatsoever.” 333 Md. at 190. The Court held that because the enumerated items fell into

only two categories—livestock and “vehicles that travel on land or water”—the phrase

“property whatsoever” should be construed as limited to property falling into one of those

two categories. Id. at 191. Similarly, in State v. Sinclair, the Court construed “other thing

of value” in the phrase “money, credit, goods, wares, or other thing of value,” to be limited

to the class of things “having intrinsic value measurable in money.” 274 Md. 646, 650,

659 (1975).

By contrast, the Court has declined to apply the doctrine when doing so would not

further legislative intent. Thus, in One Hundred & Fifty-Eight Gaming Devices, the Court

declined to hold that “other object,” as used in the phrase “any piece of money, coin, token

or other object representative of [or] convertible into money,” was limited to “tangible

things.” 304 Md. at 429 n.12. And in Tribbitt, the Court declined to interpret the general

term “sexual abuse” as being limited by the specific examples identified in the statute. 403

Md. at 656-58.

In contrast to In re Wallace W. and Sinclair, it is not at all clear from the structure

of the provision at issue here that “invasion of the right of private occupancy” is intended

to be limited by the terms “wrongful eviction” and “wrongful entry,” as opposed to

constituting a broader type of claim with independent significance. The provision itself is

one of seven listed categories of offenses that comprise the definition of “personal and

advertising injury.” The full list is:

17
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right
or private occupancy of a room, dwelling or premises that a person occupies,
committed by or on behalf of its owner, landlord or lessor;
d. Oral or written publication, in any manner, of material that slanders or
libels a person or organization or disparages a person’s or organization’s
goods, products or services;
e. Oral or written publication, in any manner, of material that violates a
person’s right of privacy;
f. The use of another’s advertising idea in your ‘advertisement’; or
g. Infringing upon another’s copyright, trade dress or slogan in your
‘advertisement’.

Nothing about this list suggests that “invasion of the right of private occupancy” is intended

to be limited in scope by the two terms that precede it. Indeed, none of the other categories

of offenses follow that structure. To the contrary, categories (a), (b), (f), and (g), simply

list specific offenses. And categories (d) and (e) identify broad categories, but without any

specific examples.

We also find it notable that “invasion of the right of private occupancy” is not

preceded by the word “other,” which is a standard grammatical cue that a term is meant to

encompass what came before it. See, e.g., Sinclair, 274 Md. at 659 (referencing “other

thing of value”). Instead, the provision simply lists three items, separated by an “or” that

is not paired with “other,” which is the standard grammatical cue that an additional listed

item is to follow. By contrast, several of the cases from other jurisdictions on which

Harleysville relies construed coverage grants that did include the cue “other.” Thus, in

Groshong v. Mut. of Enumclaw Ins. Co., the Oregon Supreme Court interpreted a coverage

18
grant addressing the “wrongful entry or eviction, or other invasion of the right of private

occupancy.” 985 P.2d 1284, 1289-90 (Or. 1999). And in Liberty Mut. Ins. Co. v. East

Cent. Okla. Elec. Coop., the personal injuries included “wrongful entry or eviction or other

invasion of the right of private occupancy.” 97 F.3d 383, 389 (10th Cir. 1996). Indeed,

the United States Court of Appeals for the Third Circuit observed that “[a]lmost all of the

precedent invoking the Latin maxim involve insurance policies that include the phrase

‘other invasion of the right of private occupancy.’” New Castle County v. Nat’l Union Fire

Ins. Co., 243 F.3d 744, 752 (3d Cir. 2001). That linguistic difference is significant.6

Harleysville asserts that “courts nationwide” have “uniformly characterized” the

“right of private occupancy” in such a coverage provision “as requiring proof of a

possessory interest in real property that is the subject of interference by its owner, typically

in cases involving the dispossession of a tenant.” Harleysville’s contention is overstated.

First, as just noted, many of those cases were interpreting policy language that differed in

an important respect from that here. Id. Second, other cases relied on by Harleysville did

not need to, and so did not, interpret the language “invasion of a right of private occupancy”

because they specifically concerned claims of wrongful eviction. E.g., STK Enters., Inc.

v. Crusader Ins. Co., 14 P.3d 638, 642 (Or. App. 2000); Century Sur. Co. v. Seductions,

6
We decline to read the language of these other policies into the Harleysville policy.
To the extent the language of the Harleysville policies differs from others, the use of
different language is presumptively purposeful and meaningful. See Aragona v. St. Paul
Fire & Marine Ins. Co., 281 Md. 371, 375 (1977) (“Insurance contracts, like other
contracts, must be read as a single document and construed as a whole . . . . [T]he primary
purpose in construing insurance contracts is to ascertain and effectuate the intention of the
parties.”). We reach no conclusion here regarding how we would interpret a different
insurance policy that used different language.

19
LLC, 609 F. Supp. 2d 1273, 1278-81 (S.D. Fla. 2009); Westfield Ins. Grp. v. J.P.’s Wharf,

Ltd., 859 A.2d 74 (Del. 2004); Zelda, Inc. v. Northland Ins. Co., 56 Cal. App. 4th 1252,

1263-66 (1997).

Third, Harleysville’s claim of uniformity is simply incorrect. In New Castle County,

the Third Circuit observed that courts interpreting similar policy language had reached

inconsistent conclusions. There, New Castle County was a defendant in suits alleging that

it had frustrated development plans by denying a building permit and voiding a recorded

plan for the property at issue. 243 F.3d at 747-48. The court surveyed other cases

interpreting similar policy provisions, finding that some concluded that the provision

requires a possessory interest in real property and others, admittedly smaller in number,

did not. Id. at 750-54. Observing that insurance companies had stubbornly refused to

clarify the policy language in response to these varied interpretations, the court found the

language ambiguous and, as a result, held that New Castle County was entitled to coverage.

Id. at 756. The court rejected the use of ejusdem generis, reasoning that applying the

doctrine to reach the conclusion that the policy language was unambiguous “would fly in

the face of commonsense.” Id. at 747; accord Nautilus Ins. Co. v. BSA Ltd. P’ship, 602 F.

Supp. 2d 641, 653 (D. Md. 2009) (finding the phrase “invasion of the right of private

occupancy” ambiguous in light of the many varying interpretations of it, and thus

construing it against the insurer under Maryland law); see Town of Goshen v. Grange Mut.

Ins. Co., 120 N.H. 915, 917 (1980) (finding that a “tangible interference with [] physical

property” was not required to find an invasion of private right of occupancy).

20
Indeed, in the case that is most directly on point, the United States Court of Appeals

for the Fifth Circuit, applying Mississippi law, concluded that nearly identical policy

language afforded coverage for a similar claim. Am. Guarantee & Liab. Ins. Co. v. The

1906 Co., 273 F.3d 605 (5th Cir. 2001). There, the underlying allegations were that a

“male employee had surreptitiously videotaped female customers changing clothes in a

women’s dressing room on the insured’s premises.” Id. at 607. The policy provided

coverage for personal injury, including “[w]rongful eviction from, wrongful entry into, or

invasion of the right of private occupancy of a room, dwelling or premises that a person

occupies by or on behalf of its owner, landlord or lessor.” Id. at 611 (emphasis supplied

by Fifth Circuit). Construing the applicable terms according to their plain and ordinary

meanings, the court concluded “that an average purchaser of insurance could reasonably

understand” the policy to cover “the invasion of a room that is secluded from the sight,

presence, or intrusion of others,” and that the video surveillance alleged “falls within this

definition.” Id. at 619. Moreover, although the court found the provision to be

unambiguous, it further noted that even if it were ambiguous, it would need to be

interpreted in favor of coverage under Mississippi law. Id. at 619-20 (acknowledging that

“[w]ell reasoned opinions of other courts” had found the phrase to be “highly ambiguous”).

We join the Fifth Circuit in declining to read into the phrase “invasion of the right

of private occupancy” a requirement that a claimant asserting such a right have a possessory

interest in the property at issue. As already noted, we do not consider the doctrine of

ejusdem generis to be implicated by either the grammatical structure of the provision or

the context of the list in which it appears. We do not believe the coverage grant to be

21
ambiguous. But even if it were, in the absence of any extrinsic evidence that would support

Harleysville’s interpretation, we would be required to interpret the provision in favor of

the reasonable interpretation proffered by Rams Head. We thus conclude that, for purposes

of the duty to defend under the Harleysville policies, video surveillance of individuals

using a restroom in a tavern or restaurant for its intended purpose is an invasion of the right

of private occupancy of the restroom.

C. Rams Head as the Owner of the Restroom

Harleysville also contends that the underlying complaints do not allege “personal

and advertising injury” under the policy because they do not allege that the invasion of the

right of private occupancy at issue was committed by or on behalf of the “owner, landlord

or lessor” of the restroom. The facts are not in dispute. Rams Head leases the property on

which the Rams Head Tavern is located from Savage Mill pursuant to a long-term lease.

Provided Rams Head complies with its obligations under the lease, it is entitled to

“peaceably and quietly hold and enjoy the Leased Premises . . . without hindrance or

interruption by Landlord or any other person or persons . . . .” The circuit court found that

Rams Head exercises “exclusive control” over the restaurant.

In essence, Harleysville asks that we strictly construe the term “owner” to be limited

to the legal ownership of the real property on which the building is located. Rams Head

counters that the use of “owner” in the provision is more flexible and encompasses Rams

Head’s exclusive control over the restroom located in the business it owns and operates.

To resolve this issue, we look to the common and popular understanding of the word

“owner.” See generally Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 781

22
(1993) (observing that courts afford policy terms the meanings “as used and understood by

reasonably prudent laypersons in daily life”). Of course, “owner” is not used in a vacuum,

but it appears as part of the phrase “of a room, dwelling or premises that a person occupies,

committed by or on behalf of its owner, landlord or lessor.” Given that we are focused on

a “right of private occupancy” in the restroom, the question is whether Rams Head was the

“owner” of that room.

A common definition of “own” is “have (something) as one’s own; possess.” New

Oxford American, “own,” at 1253; accord Merriam-Webster’s Collegiate, “own,” at 887

(“to have or hold as property: POSSESS”). There is no indication in the policies that

“owner” was intended to reference fee simple ownership of real property as opposed to this

common, everyday understanding of the term. It is uncontested here that Rams Head

possessed the entire Rams Head Tavern, including its women’s restroom; indeed,

Harleysville’s counsel expressly conceded that at oral argument. We conclude that, for

purposes of this coverage grant, Rams Head was the “owner” of the restroom in the Rams

Head Tavern.

We consider it confirmation of our interpretation of the plain language of the policy

that coverage would be rendered illusory if we were to instead accept Harleysville’s

interpretation. This category of personal and advertising injury insurance provides

coverage for claims that an insured who has granted someone a right to possess or occupy

privately a “room, dwelling or premises” has wrongfully diminished or destroyed that right.

Interpreting “owner, landlord or lessor” as proposed by Harleysville would effectively

eliminate coverage for any owner of a business that, like Rams Head, does not own in fee

23
simple the property on which the business operates. In light of the structure of many

modern businesses, that would effectively wipe out coverage for many business owners

even for wrongful eviction or wrongful entry claims. For example, a hotel that is operated

by a company that does not own the underlying property would be denied coverage for a

claim that it improperly evicted a patron from a room she or he had rented.

Rams Head, not Savage Mill, possessed and had control over the restroom. And

Rams Head, not Savage Mill, was empowered to grant its customers the right to occupy

the restroom while they were patronizing the restaurant. We therefore conclude that Rams

Head was the owner of the restroom for purposes of the coverage grant. We now turn to

the exclusions Harleysville invokes.7

D. The Recording and Distribution Exclusion

Harleysville contends that even if Rams Head otherwise would be entitled to a

defense, coverage is precluded under the 2014 Policy by the Recording and Distribution

exclusion.8 Under that exclusion, coverage is not available for “‘personal and advertising

injury’ arising directly or indirectly out of any action or omission that violates or is alleged

to violate” three specific statutes—the Telephone Consumer Protection Act (“TCPA”), the

7
In light of our conclusion that Harleysville owed a duty to defend Rams Head with
respect to both underlying complaints under Coverage B of the policies, we do not address
Rams Head’s contention that Harleysville also had a duty to provide coverage for the Clar
complaint under Coverage A.
8
The Castle complaint alleged conduct going back to 2012. The Clar complaint
alleged conduct only in 2014. The Recording and Distribution exclusion applies only to
the 2014 Policy. If the Recording and Distribution exclusion were applicable, it would
thus preclude coverage entirely for the Clar complaint, but Harleysville would still owe a
defense for the Castle complaint under the policies in effect during 2012 and 2013.

24
CAN-SPAM Act of 2003,9 and the Fair Credit Reporting Act (“FCRA”)—or “[a]ny

federal, state or local statute, ordinance or regulation, other than the TCPA, CAN-SPAM

Act of 2003 or FCRA and their amendments and additions, that addresses, prohibits, or

limits the printing, dissemination, disposal, collecting, recording, sending, transmitting,

communicating or distribution of material or information.”

Unlike the listing of offenses covered as personal and advertising injury, this

appears to be a paradigmatic case for application of ejusdem generis, as it satisfies all of

the In re Wallace W. criteria. 333 Md. at 190. Here, we have (1) an enumeration by

specific words of statutes intended to be covered; (2) the enumeration suggests a class of

statutes directed at protecting consumers from either unwanted solicitations (TCPA and

CAN-SPAM) or the collection and distribution of financial information (FCRA); (3) a class

that is not exhausted by these references; (4) a reference to a general category; and (5) no

manifestation of an intent to give a broader meaning to the general category than the

doctrine requires. Thus, we interpret the Recording and Distribution exclusion to cover

conduct that is alleged to violate, in addition to the specified statutes, other statutes or

regulations that protect consumers from the types of harm addressed by the enumerated

statutes: unwanted solicitations and the improper collection and distribution of financial

information.

9
This use of “spam” comes from a sketch by the British comedy troupe Monty
Python about a group of Vikings singing “a chorus of ‘spam, spam, spam . . . ’” about the
meat product SPAM “in an increasing crescendo, drowning out other conversation.” Thus,
“the analogy applied because [spam email] was drowning out normal discourse on the
Internet.” MaryCLE, LLC v. First Choice Internet, Inc., 166 Md. App. 481, 496 n.14
(2006) (internal quotations omitted).

25
The history of this provision supports our interpretation. The 04 Policy Form

contained a “Distribution of Material in Violation of Statutes” exclusion, which was similar

to the Recording and Distribution exclusion except that it did not: (1) list the FCRA as a

specific statute covered; or (2) include “printing, dissemination, disposal, collecting, [or]

recording” in the general category that followed the listing of specific statutes. The

addition of the FCRA was thus linked to the addition of these new terms in the general

category when the new exclusion appeared by endorsement in the 2014 Policy. The FCRA

is intended to promote fair and accurate credit reporting by, among other things, regulating

the creation, collection, dissemination, disposal, and reporting of credit information, see

generally 15 U.S.C. §§ 1681 – 1681x. Especially considering the structure of this

exclusion, it is apparent that the additional terms, including “recording,” were intended to

bring within the scope of the exclusion claims alleging the violation of laws similar to the

FCRA. We discern no basis for reading such a provision so broadly as to encompass the

type of “recording” at issue here.

II. HARLEYSVILLE DID NOT HAVE A DUTY TO DEFEND AGAINST CLAIMS
THAT MR. MUEHLHAUSER INVADED THE UNDERLYING PLAINTIFFS’
RIGHT OF PRIVATE OCCUPANCY OF THE RAMS HEAD TAVERN’S
RESTROOM.

Our analysis with respect to the general applicability of Coverage B and the lack of

application of the Recording and Distribution exclusion applies equally to Mr.

Muehlhauser’s claim for coverage as it does to Rams Head’s claim for coverage. However,

Harleysville raises additional defenses to Mr. Muehlhauser’s claims, including that:

(1) Mr. Muehlhauser is not an “insured” under the policy for purposes of the underlying

26
claims; and (2) the Knowing Violation and Criminal Acts exclusions preclude coverage.

We disagree as to the first argument, but agree that the Criminal Acts exclusion applies

and bars coverage for Mr. Muehlhauser.

A. Mr. Muehlhauser Was an Insured Under the Policy for Purposes
of the Duty to Defend.

The policies define an insured to include the members of a named insured, “but only

with respect to the conduct of your business,” as well as the managers of a named insured,

“but only with respect to their duties as your managers.” Harleysville contends that Mr.

Muehlhauser was not an insured for purposes of the Clar and Castle claims because the

activities he is alleged to have engaged in were not “with respect to the conduct of [Rams

Head’s] business.” Mr. Muehlhauser responds that, at least for purposes of the duty to

defend, he qualifies as an insured because both complaints expressly alleged that he was

acting within the scope of his duties as a manager and owner of Rams Head.

Before we address the merits of this claim we must first address Harleysville’s

contention that the circuit court erred in refusing to consider evidence outside the pleadings

that would have established conclusively that Mr. Muehlhauser was not acting with respect

to the conduct of Rams Head’s business. Harleysville argues that the parties to a

declaratory judgment action regarding the duty to defend are not restricted to the

allegations of the underlying complaints when considering who is an insured under the

policy. Although that is true in certain circumstances, those are limited to cases in which

the resolution of the question of who an insured is would not affect the defense of the

underlying claims. That is not the case here.

27
As already discussed, the general rule is that whether an insurer has a duty to defend

is determined exclusively by comparing the coverage provisions of the policy against the

allegations of the claim. Blackstone Int’l Ltd., 442 Md. at 696. Where coverage questions

are entirely separate and distinct from the defense of the underlying action, such as the

resolution of an ambiguity in policy language, they may be resolved while the underlying

action is pending. Pryseski, 292 Md. at 194. In such circumstances, the court must resolve

the coverage questions “in favor of the insured before it can conclude that the insurer has

or had an obligation to provide a tort defense.” Id. On the other hand, where an insurer

contests coverage based on a contention that is to be resolved in the underlying litigation—

i.e., where the coverage and underlying liability issues are in some way intertwined—it is

inappropriate to resolve that issue in a separate coverage action while the underlying action

remains pending.

This rule serves the important purpose of preventing an insurer that is attempting to

avoid a coverage obligation from prejudicing the defense of its insured in the underlying

action in the process. Thus, as the Court of Appeals observed in Brohawn, where an

insurance company’s claim is that there is no coverage because the insured failed to comply

with the requirements of the policy, a preliminary declaratory judgment action to determine

coverage issues may be appropriate. 276 Md. at 405. “But where, as here, the question to

be resolved in the declaratory judgment action will be decided in pending actions, it is

inappropriate to grant a declaratory judgment.” Id. at 406. In Brohawn, because the issue

of whether the tort defendant/coverage claimant acted “with intent to cause injury” was

28
relevant to both the coverage determination and the underlying action, it could not be

resolved through the declaratory judgment action. Id. at 400, 405-06.

If the circuit court here were to have taken evidence to determine whether Mr.

Muehlhauser really had acted within the scope of his duties for Rams Head, as alleged in

the underlying complaints, it would have been deciding an issue that still needed to be

resolved in the underlying actions. That it was not permitted to do.10 As the circuit court

correctly observed, if that issue had remained unresolved by the underlying litigation, it

could have been litigated in a separate, later declaratory judgment action. See, e.g., Allstate

Ins. Co. v. Atwood, 319 Md. 247, 263 (1990). The court thus did not err in declining to

consider matters outside the “eight corners” of the underlying complaints and the policies.

See Montgomery Cty. Bd. of Educ. v. Horace Mann Ins. Co., 154 Md. App. 502, 511

(2003), aff’d, 383 Md. 527 (2004) (under the “eight corners rule,” a court is required “to

analyze only the complaint and the insurance policy when determining whether a claim

could potentially come within the coverage and, consequently, [to] disregard any extrinsic

evidence”).

Turning to the merits, we also concur with the circuit court’s conclusion that, based

on the allegations of the underlying complaints and the policies’ definition of an insured,

Mr. Muehlhauser was an insured for purposes of the duty to defend. Both sides rely on the

10
The Court of Appeals has recognized a further exception allowing courts to
entertain declaratory judgment actions prior to trial of the underlying action “where the
allegations in the underlying tort claims ‘obviously constitute a patent attempt to
recharacterize, as negligent, an act that is clearly intentional . . . .’” Pettit v. Erie Ins. Exch.,
349 Md. 777, 780 (1998) (quoting Allstate Ins. Co. v. Atwood, 319 Md. 247, 253 (1990)).
Harleysville does not contend that this exception applies here.

29
Court of Appeals’s decision in Pryseski, which we agree is dispositive. There, a plaintiff

filed suit against an insurance broker whose “duties included the collection of monthly

premiums” at customers’ residences. 292 Md. at 190. The plaintiff alleged in relevant part

that “in the course of his employment as an agent,” Mr. Pryseski entered her home “for the

purpose of collecting” a premium before making sexual advances on her. Id. She alleged

that this incident occurred “during the course of and while acting in the scope of [Mr.

Pryseski’s] employment,” which his employer then ratified. Id. The employer’s insurer

refused to provide a defense for Mr. Pryseski and initiated a declaratory judgment action

to contest coverage on the ground that Mr. Pryseski had not acted within the scope of his

employment. Id. at 191. The Court of Appeals held that, for the purpose of the declaratory

judgment action, the lower courts should have construed the policy language at issue,

including the meaning of policy terms, but that it would have been inappropriate to decide

in the declaratory judgment action whether Mr. Pryseski was acting in the scope of his

employment. Id. at 196.

As with Mr. Pryseski, whether Mr. Muehlhauser was actually acting within his

scope of employment was a question for the factfinder in the underlying tort actions. See

Sawyer v. Humphries, 322 Md. 247, 254-61 (1991) (discussing factors to be considered in

determining whether an employee’s conduct was within the scope of employment). The

tort plaintiffs alleged that he was acting within the scope of his employment, and made

claims that, if true, had the potentiality to establish Mr. Muehlhauser as an insured. The

circuit court thus did not err in treating Mr. Muehlhauser as an insured for purposes of the

duty to defend.

30
B. The Criminal Acts Exclusion Bars Coverage for Mr.
Muehlhauser.

We now turn to our one point of departure from the thorough analysis of the circuit

court, the applicability of the Criminal Acts exclusion. Coverage B does not apply to

injuries “arising out of a criminal act committed by or at the direction of the insured.”

Harleysville contends that this exclusion bars coverage for Mr. Muehlhauser because the

acts he is alleged to have committed are criminal. Mr. Muehlhauser argues that the

application of this exclusion would render meaningless the coverage grant and run afoul of

the rule established in Bailer, which prohibits giving effect to an exclusion that would

swallow the coverage grant. 344 Md. at 525. Harleysville disagrees, asserting that, unlike

the “expected or intended” exclusion at issue in Bailer, giving force to the Criminal Acts

exclusion would not negate the coverage provided by Coverage B. We agree with

Harleysville.

The starting point for our analysis is Bailer. The Bailers’ au pair, after learning that

Mr. Bailer had secretly videotaped her while she showered, sued for invasion of privacy.

Id. at 518. The Bailers called upon their personal catastrophe liability policy for a defense.

The policy covered “invasion of privacy” as a “[p]ersonal injury,” but excluded “personal

injury . . . expected or intended by anyone we protect.” Id. at 520-21. Based on that

exclusion, the insurer denied coverage. Id. at 521. The Court of Appeals, construing the

au pair’s claim as one for unreasonable intrusion on seclusion, id. at 526, held that the

insurer could not rely on the expected or intended exclusion to deny coverage, id. at 533-34.

That is because an “[i]ntrusion upon seclusion must always be intentional in order to be

31
tortious.” Id. at 534. As a result, applying the expected or intended exclusion to that claim

would render the coverage grant itself illusory. Id. at 525. The Court thus refused to give

effect to the exclusion. Id. at 533-34.

Although a claim for an unreasonable intrusion upon seclusion can, as here, be based

on conduct that is criminal, it need not be.11 Such a claim involves an intentional intrusion,

“physical[] or otherwise, upon the solitude or seclusion of another or his private affairs or

concerns.” Id. at 526 (quoting Restatement (Second) of Torts § 652B); see Pemberton, 66

Md. App. at 163 (defining intrusion upon seclusion without requiring criminal intent);

Furman, 130 Md. App. at 73 (same). Criminal intent is not required. Thus, nonconsensual

video surveillance in a private place without prurient intent may still constitute an

unreasonable intrusion upon seclusion while not running afoul of Criminal Law § 3-902.

Such a claim would thus trigger Coverage B without being precluded by the Criminal Acts

exclusion. As a result, the exclusion does not render coverage illusory and we are not

permitted to disregard it. Harleysville “contracted to underwrite” coverage for its insured

that excluded coverage for criminal acts; it will “not subsequently be expected to assume

11
The Court in Bailer examined the potential conflict between the coverage grant
and the exclusion at the level of the particular type of coverage potentially implicated. The
policy provided coverage for “personal injury,” one component of which was “invasion of
privacy.” Id. at 520. Under Maryland law, invasion of privacy itself encompasses four
different claims, one of which is unreasonable intrusion upon seclusion. Id. at 525-26. In
examining the application of the exclusion, the Court examined only whether it would
negate coverage for unreasonable intrusion upon seclusion claims, not all invasion of
privacy claims, much less all personal injury claims. Id. at 533-34.

32
liability for a risk” that it has “expressly excluded.” Parker v. State Farm Mut. Auto. Ins.

Co., 263 Md. 206, 216 (1971).12

Because the Criminal Acts exclusion cannot be disregarded, it precludes coverage

under the policies for the claims against Mr. Muehlhauser. The complaints both allege that

Mr. Muehlhauser acted with prurient intent in surreptitiously videotaping women who were

using the restroom. Neither complaint includes any alternative factual allegations under

which Mr. Muehlhauser’s conduct might not be criminal. This is not a case in which the

allegations of the complaints allow the possibility that there was tortious-but-not-criminal

conduct by Mr. Muehlhauser that would give rise to a potentiality of coverage for him.

Harleysville thus did not have a duty to defend Mr. Muehlhauser in connection with the

Castle and Clar complaints.

For the foregoing reasons, we affirm the circuit court’s order as to Harleysville’s

duty to defend Rams Head, but reverse its determination that Harleysville had a duty to

defend Mr. Muehlhauser. We remand to the circuit court for entry of a declaratory

judgment that is consistent with this opinion.

12
Harleysville’s declaratory judgment complaint argued that the Knowing Violation
exclusion precluded coverage for both Rams Head and Mr. Muehlhauser. On appeal,
Harleysville has limited its argument regarding that exclusion to Mr. Muehlhauser.
Because we find coverage for Mr. Muehlhauser precluded by the Criminal Acts exclusion,
we need not separately address the Knowing Violation exclusion. If we were to address
that exclusion, we would conclude that it does not apply for the same reasons that the
“expected or intended” exclusion did not apply in Bailer. Although an action that
constitutes an unreasonable intrusion upon seclusion need not be criminal, it must, by
definition, be intentional. See Pemberton, 66 Md. App. at 163 (defining tort as “the
intentional intrusion upon the solitude or seclusion of another . . .”).

33
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED IN
PART AND REVERSED IN PART. CASE
REMANDED FOR ENTRY OF A
DECLARATORY JUDGMENT
CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID 80% BY
APPELLANTS AND 20% BY APPELLEES.

34