Allstate Ins. Co. v. Kim W.

• Citation: 160 Cal.App.3d 326,206 Cal.Rptr. 609
• Court: California Court of Appeals
• Decision Date: 27 September 1984
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. KIM W., a Minor, etc., Defendant and Appellant. ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. Leroy H. KORTE, Defendant and Appellant. A017083, A021685.

Page 609

206 Cal.Rptr. 609

160 Cal.App.3d 326

ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. KIM W., a Minor, etc., Defendant and Appellant.

ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. Leroy H. KORTE, Defendant and Appellant.

A017083, A021685.

Court of Appeal, First District, Division 3, California.

Sept. 27, 1984.

Hearing Denied Dec. 19, 1984.

F. Richard Lucas, Goodman, Herbert & Lucas, Honeychurch, Finkas & Villarreal, Fairfield, for defendant and appellant Kim W.

Robert W. Geandrot, Fairfield, for defendant and appellant Korte.

Walcom & Harmon, John T. Harmon, San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

Appellants Leroy Korte and Kim W. appeal from a judgment on the pleadings entered in favor of respondent Allstate Insurance Company in its action for declaratory relief. ¹ We affirm.

Appellant Kim W., a minor, filed an amended complaint through her guardian ad litem against appellant LeRoy Korte, seeking compensatory and punitive damages for injuries resulting from several acts of sexual assault. Korte was insured by respondent Allstate Insurance Company (hereafter Allstate) under a homeowner's insurance policy, which expressly excluded coverage for "bodily injury or property damage intentionally caused by an insured person." Allstate brought an action for declaratory relief against both Korte and Kim W., among others, seeking a declaration that the policy provided no coverage to Korte for the acts alleged in Kim's complaint. Paragraph VI of Allstate's complaint alleged that during the years 1978 and 1979, Korte engaged in conduct with Kim W. and others, "assaulting and battering them for his own sexual gratification and in violating [sic ] Section 288 of the Penal Code ... and subdivisions A (b)(2) and Section 288 (c) [sic ]."

Korte answered, admitting that in those years he "participated in such acts which constituted a violation of Penal Code No. 288," but denying, without explanation, the allegation that the policy afforded him no coverage. Kim W. also answered, denying most of the allegations of Allstate's complaint for lack of information and belief. However, she admitted the filing of the underlying action against Korte, and attached as an exhibit to her answer a copy of her verified complaint in that action.

Immediately prior to the commencement of trial, Allstate moved for judgment on the pleadings, relying in particular on Korte's admission of violating Penal Code section 288. After argument, and after counsel for all three parties agreed to submit the matter, the trial court granted the motion. Counsel for Korte then asked for leave to amend his answer by withdrawing the admission; that motion was denied. Judgment was entered declaring that Korte's insurance did not cover his acts of sexual molestation and assaults and batteries, and that Allstate was not required to defend him in Kim's action. Both Kim W. and Korte have appealed.

Appellants contend that judgment on the pleadings was an "improper procedural remedy" and that the trial court abused its discretion in denying appellant Korte's motion for leave to amend. In the alternative, appellants contend that notwithstanding Korte's admission, judgment on the pleadings should not have been granted because a material issue remained as to whether he intended to inflict injury on Kim. Appellants also argue that the admission of Korte should not be binding on Kim.

I

A motion for judgment on the pleadings is an appropriate means of obtaining an adjudication of the rights of the parties in a declaratory relief action if those rights can be determined as a matter of law from the face of the pleading attacked, together with those matters of which the court may properly take judicial notice. (Silver v. Beverly Hills Nat. Bank (1967) 253 Cal.App.2d 1000, 1005, 61 Cal.Rptr. 751.) A plaintiff's motion for judgment on the pleadings is analogous to a plaintiff's demurrer to an answer and is evaluated by the same standards. (See Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 840-842, 16 Cal.Rptr. 894, 366 P.2d 310; 4 Witkin, Cal. Procedure (1971) Proceedings Without Trial, § 165, pp. 2819-2820.) The motion should be denied if the defendant's pleadings raise a material issue or set up affirmative matter constituting a defense; for purposes of ruling on the motion, the trial court must treat all of the defendant's allegations as being true. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 813, 161 P.2d 449.)

Respondent's motion for judgment on the pleadings was based both on the policy's exclusionary clause and on Insurance Code section 533, which provides that an insurer is not liable for a loss caused by the willful act of the insured. "Section 533 ... is a part of every insurance contract and is equivalent to an exclusionary clause in the contract itself. [Citation.]" (Evans v. Pacific Indemnity Co. (1975) 49 Cal.App.3d 537, 540, 122 Cal.Rptr. 680.) The public policy underlying section 533 is to prevent encouragement of a willful tort. (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 648, 39 Cal.Rptr. 731, 394 P.2d 571.) In granting the motion for judgment on the pleadings, the trial court in effect concluded that the pleadings established that Korte's acts were willful within the meaning of section 533, and that he intentionally caused injury within the meaning of the policy exclusion.

II

First, appellants contend that the court abused its discretion in denying appellant Korte leave to amend his answer by withdrawing his admission. That contention is unpersuasive. The general rule is that an amendment which contradicts an admission in an original pleading will ordinarily not be allowed unless a showing is made of mistake or other excuse for changing the allegations. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939, 119 Cal.Rptr. 82.) No such showing was made here.

III

Appellants then argue that even if the court did not abuse its discretion in denying leave to amend, judgment on the pleadings was inappropriate, because while Korte may have admitted that his acts were willful, the pleadings presented a triable issue as to whether he also intended harm or damage to Kim W. They rely on the line of cases which hold that even an act which is "intentional" or "willful" within the meaning of traditional tort principles does not necessarily exonerate an insurer from liability under Insurance Code section 533, if the resulting damage or injury is not intentional and is unexpected. (See, e.g., Walters v. American Ins. Co. (1960) 185 Cal.App.2d 776, 783, 8 Cal.Rptr. 665 [willful act within meaning of section 533 "connotes something more blameworthy than ... ordinary negligence, and something more than the mere intentional doing of an act constituting such negligence"; if insured acts in self-defense, although he intended the act, he "acted by chance and without a preconceived design to inflict injury just as though he were acting intentionally, although negligently, and injured someone"]; see also Meyer v. Pacific Employers Ins. Co. (1965) 233 Cal.App.2d 321, 327, 43 Cal.Rptr. 542 [although an act which causes an injury is intentional, if the consequence that is the damage or injury is not intentional and is unexpected, it is accidental in character].)

However, appellants cite no case applying this principle and obligating an insurer to pay for damages resulting from a willful sexual assault by its insured. ² In construing exclusionary clauses similar to that in this case, some courts have held that under certain circumstances, the nature of the intentional act of the insured is such that an intent to cause at least some harm can be inferred as a matter of law, and that as long as some harm is intended, it is immaterial that harm of a different magnitude from that contemplated actually resulted. (See Annot., Liability Insurance--Wilful Injury (1965) 2 A.L.R.3d 1238, 1245-1246, and later cases (1983 pocket supp.) pp. 106-107.) We conclude that an act which constitutes a violation of Penal Code section 288 is such an act. One who admits that his conduct violated section 288 has admitted (1) a lewd or lascivious act upon a part of the body (2) of a child under the age of 14 (3) with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either the perpetrator or the child. (People v. Nothnagel (1960) 187 Cal.App.2d 219, 225, 9 Cal.Rptr. 519.) Section 288 is intended not just to punish individuals for violating the moral standards of the community, but also to protect infants and children from lewd and lascivious assaults. (People v. Meacham (1984) 152 Cal.App.3d 142, 156, 199 Cal.Rptr. 586; People v. Gutierrez (1978) 80 Cal.App.3d 829, 834-836, 145 Cal.Rptr. 823; People v. Toliver (1969) 270 Cal.App.2d 492, 496, 75 Cal.Rptr. 819; People v. Hobbs (1952) 109 Cal.App.2d 189, 192, 240 Cal.Rptr. 411.) Implicit in the determination that children must be protected from such acts is a determination that at least some harm is inherent in and inevitably results from those acts. As the court stated in People v. Austin (1980) 111 Cal.App.3d 110, 168 Cal.Rptr. 401, "Significant harm may occur to a child who is caused to engage in or submit to the lustful intendments of a person seeking sexual self-gratification. The range of proscribed potentially harmful acts is limited only by the imagination of the perpetrator. The harm may be manifested in many different mental, emotional and physical ways, leaving a child with possible lasting and debilitating fears." (Id., at pp. 114-115, 168 Cal.Rptr. 401.) Accordingly, we conclude that an act which is a violation of Penal Code section 288 is a willful act within the meaning of Insurance Code section 533. ³

In the alternative, even if an insured's admission of conduct violating section 288 does not foreclose a claim that the conduct was not willful within the meaning of section 533, appellant Korte's answer in this case...