684 F.Supp. 1056 (W.D.Okl. 1988), CIV-87-522, Allstate Ins. Co. v. Thomas

Docket Nº:CIV-87-522-B.
Citation:684 F.Supp. 1056
Party Name:ALLSTATE INSURANCE COMPANY, Plaintiff, v. Helen THOMAS, individually and as Mother and next friend of Marie Thomas, a minor; Greater Mount Carmel Church, Inc.; and Frank McClarety, Defendants.
Case Date:April 27, 1988
Court:United States District Courts, 10th Circuit, Western District of Oklahoma
 
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Page 1056

684 F.Supp. 1056 (W.D.Okl. 1988)

ALLSTATE INSURANCE COMPANY, Plaintiff,

v.

Helen THOMAS, individually and as Mother and next friend of Marie Thomas, a minor; Greater Mount Carmel Church, Inc.; and Frank McClarety, Defendants.

No. CIV-87-522-B.

United States District Court, W.D. Oklahoma.

April 27, 1988

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George Davis, McKinney, Stringer & Webster, Oklahoma City, Okl., for plaintiff.

Floyd W. Taylor, Miskovsky, Sullivan, Taylor & Manchester, David D. Wilson, Angela D. Ailles, Kim Taylor, Oklahoma City, Okl., for defendants.

MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT

BOHANON, District Judge.

The central controversy in this declaratory judgment action is whether the Deluxe Homeowner's Policy issued by the plaintiff provides coverage for damages occurring when the insured, Frank McClarety, allegedly molested Marie Thomas at the Greater Mount Carmel Church.

Frank McClarety was convicted on January 14, 1985, of intentionally touching and molesting a child under the age of sixteen in a lewd and lascivious manner in violation of 21 O.S. § 1123.

The criminal charge accused McClarety of sexually molesting the child at the church's daycare center where McClarety was a bus driver/maintenance man and Thomas was a pupil. The abuse allegedly occurred over a four year period from November, 1980--May, 1984. McClarety was sentenced on January 31, 1985, to eighteen months imprisonment.

Marie and Helen Thomas filed a state civil suit against the church and McClarety on April 29, 1985. The daycare center's insurer, State Farm Insurance Company, represents both defendants in the state court action. State Farm (in the name of Mr. McClarety) eventually demanded that Allstate defend and indemnify McClarety under the terms of his homeowner's policy.

Allstate then instituted this action in federal court seeking a declaratory judgment that child molestation is not an activity for which McClarety can be indemnified. Allstate has filed a motion for summary judgment.

The parties have submitted numerous briefs and authorities discussing whether Allstate is obligated to defend and indemnify McClarety in the state court case. The court also heard oral argument on the motion. After careful study, the court is now prepared to rule on the motion for summary judgment.

The undisputed facts are that Allstate issued a Deluxe Homeowner's Policy to McClarety, covering his residence at 3939 N.W. 36th Street. The homeowner's policy was in full force and effect during the time the alleged molestation occurred at the Mt. Carmel Daycare Center. The policy contains the following insuring agreement: "We will pay all sums arising from the same loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by this part of the policy." (Policy, p. 17). The following exclusions were set out in the policy:

1. We do not cover bodily injury or property damage intentionally caused by an insured person.

2. We do not cover bodily injury or property damage occurring on any premises, other than an insured premises, owned, co-owned, rented or controlled by an insured person. (Policy, pp. 17-18)

While McClarety continues to assert his innocence, he was convicted under 21 O.S. § 1123 of intentionally touching and molesting a child under the age of 16 in a lewd and lascivious manner. The state civil petition alleges that McClarety's actions were "willful, wanton, malicious, gross, outrageous, intentional and unlawful."

The plaintiff asks the court to find that child molestation is an intentional act and inherently harmful as a matter of law.

I.

The allegations in the state complaint filed by Helen and Marie Thomas will determine

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the extent of Allstate's duty to defend McClarety.

The general rule is that the insurer must defend the insured if the allegations even arguably come within the...

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