97-1215 La.App. 5 Cir. 5/13/98, L.M. v. J.P.M.

• Court: Court of Appeal of Louisiana
• Writing for the Court: L.M., Individually and on Behalf of the minor children G.W.; Frank; GOTHARD
• Citation: 97-1215 La.App. 5 Cir. 5/13/98, L.M. v. J.P.M., 714 So.2d 809 (La. App. 1998)
• Decision Date: 13 May 1998
• Parties: 97-1215 La.App. 5 Cir

Page 809

714 So.2d 809

97-1215 La.App. 5 Cir. 5/13/98

L.M., Individually and on Behalf of the minor children G.W J.W., L.J.W., and J.W. v. J.P.M. and State Farm Insurance Company.

No. 97-CA-1215.

Court of Appeal of Louisiana Fifth Circuit.

May 13, 1998.

David L. Colvin, Jeffrey P. Brothers, David L. Colvin & Associates, Gretna, for Appellants/Plaintiffs.

Kathryn T. Wiedorn, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, for Appellee/Defendant.

Before DUFRESNE, WICKER and GOTHARD, JJ.

[97-1215 La.App. 5 Cir. 1] WICKER, Judge.

This appeal arises from a petition for damages filed on behalf of L.M., individually and on behalf of three minor children (plaintiffs/appellants). L.M. filed suit against J.P.M., the minors' stepfather, and an adult. Suit was also filed against J.P.M.'s homeowner's insurer, State Farm Insurance Company ¹ (State Farm), defendants/appellees, seeking damages for the alleged sexual abuse/molestation of her minor children. Both parties concede that J.P.M. pled guilty to three counts of molestation and is currently incarcerated. ² State Farm filed a motion for summary judgment arguing the homeowner's insurance policy issued to J.P.M. and in effect at the time of the alleged incidents excludes coverage for the acts alleged. State Farm contends the acts are excluded on the basis they were expected or intended by the insured, and alternatively, because they were willful and malicious. The trial judge granted the motion for [97-1215 La.App. 5 Cir. 2] summary judgment. The plaintiffs have appealed. We affirm.

The policy herein contains the following exclusion:

1. Coverage L and Coverage M ³ do not apply to:

A. Bodily injury or property damage:

(1) which is either expected or intended by an insured; or

(2) to any person or property which is the result of willful and malicious acts of an insured[.]

Two issues are presented for our review:

1. Whether this court follows the "inferred intent" rule adopted by the majority of jurisdictions. See, e.g., State Farm Fire and Cas. Co. v. Davis, 612 So.2d 458, 463 (Ala.1993) and the cases cited therein.

2. Whether J.P.M.'s alleged lack of capacity to intend to harm the children or to control deviant sexual urges because of a diagnosis of Pedophillia raises an issue of material fact which precludes the granting of summary judgment.

This court adopts the "inferred intent" rule ⁴ for the following reasons.

In Weekley v. Jameson, 221 Mich.App. 34, 561 N.W.2d 408 (1997) the court explained the "inferred intent" rule at 410:

For purposes of civil liability insurance, courts should infer the intent to injure as a matter of law when an adult sexually assaults a child. Fire Ins. Exchange v. Diehl, 450 Mich. 678, 689-690, 545 N.W.2d 602 (1996) and cases cited therein; State Mutual Ins. Co. v. Russell, 185 Mich.App. 521, 462 N.W.2d 785 (1990). See also Linebaugh v. Berdish, 144 Mich.App. 750, 762, 376 N.W.2d 400 (1985) and Auto-Owners Ins. Co. v. Gardipey, 173 Mich.App. 711, 714-715, 434 N.W.2d 220 (1988). This inference is not based on contract interpretation, Diehl, supra, p. 689, n. 3, 545 N.W.2d 602, but on public policy:

Generally, [the] courts reason that the inference of the intent to injure should be applied because the act of child molestation is inherently harmful. [97-1215 La.App. 5 Cir. 3] B.B. v. Continental Ins. Co., 8 F.3d 1288, 1293 (C.A.8, 1993). "The [inferred -intent] approach ... stands for the proposition that a person who sexually manipulates a minor cannot expect his insurer to cover his misconduct and cannot obtain such coverage simply by saying that he did not mean any harm. The courts following the majority approach have concluded that sexual misconduct with a minor is objectively so substantially certain to result in harm to the minor victim, that the perpetrator cannot be allowed to escape society's determination that he or she is expected to know that. Hence, these courts infer the intent to harm as a matter of law in sexual misconduct cases involving minors." Id., quoting Whitt v. DeLeu, 707 F.Supp. 1011, 1016 (W.D.Wis.1989). [Diehl, supra, pp. 689-690, n. 4, 545 N.W.2d 602.]

The exclusion of coverage for public policy reasons was also explained in Nodak Mut. Ins. Co. v. Heim, 1997 N.D. 36, 559 N.W.2d 846 (1997). In Nodak at 851 the Supreme Court of North Dakota stated:

It is well established an insured's sexual molestation of a child is precluded from coverage under public policy and intentionalact exclusions of insurance policies. E.g., J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal.3d 1009, 278 Cal.Rptr. 64, 804 P.2d 689, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991); Auto-Owners Ins. Co. v. Brubaker, 93 Ohio App.3d 211, 638 N.E.2d 124 (1994); American Family Mut. Ins. Co. v. Purdy, 483 N.W.2d 197 (S.D.), cert. denied, 506 U.S. 870, 113 S.Ct. 202, 121 L.Ed.2d 144 (1992). The essence of a child molestation case is the gratification of sexual desire, and an intent to harm is inferred from the act. J.C. Penney; Brubaker; Purdy.

In Davis, supra the court considered an identical exclusion as the one herein and explained at 463:

The rule applied by an overwhelming majority of courts is that, in cases involving sexual abuse of children, intent to injure is inferred as a matter of law "regardless of claimed intent." Whitt v. DeLeu, 707 F.Supp. 1011, 1016 (W.D.Wis.1989).

In explaining its holding, the Davis court adopted the reasoning of Justice Frank in his dissenting opinion. Zordan v. Page, 500 So.2d 608, 613 (Fla.Dist.Ct.App.1986), review denied, 508 So.2d 15 (Fla.1987) (Frank, J. dissenting) as follows:

I am absolutely unwilling to deny the foreseeability of injury to a child who is subjected to sexual abuse. It defies human response and sensitivity to conclude that the inevitable product of the sexual molestation of a child is not intended. That conduct inescapably inspires some response in the minor victim. Whether the response is a precocious excitation of libido, an utter [97-1215 La.App. 5 Cir. 4] revulsion or simply confusion, the child suffers grave psychological injury. Indeed, the fact that the ultimate goal of this litigation is to acquire funding to reconstruct Nicole's emotional status is a testament to the soundness of my urging that we not accord slavish adherence to a principle that simply does not fit the context. The damage Nicole suffered flowed just as surely from Page's criminal acts as if he had taken his fist or a club and struck her in the face.

Justice Frank further explained:

The nature of Page's conduct "was such that an intention to inflict injury can be inferred as a matter of law." Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn.1982). To the extent that the customary rule would bring the Zordans' claim within the policy, I part company with that rule in a matter of this kind and would follow the rule adopted in a number of states exemplified by the Minnesota Supreme Court's view: "In construing the 'intentional act' exclusion of liability insurance policies where the underlying claim is that the insured intentionally sexually assaulted the victim, an intention to inflict injury will be inferred as a matter of law." Estate of Lehmann By Lehmann v. Metzger, 355 N.W.2d 425, 426 (Minn.1984).

To claim, as is pleaded by the Zordans, that Page's acts were committed without an intention to harm is incredible. Florida's criminal code protects children from and punishes for the very specie of acts committed by Page, and implicit in the statutory scheme is the recognition that some form of harm inheres in and inevitably flows from the proscribed behavior. See Allstate Ins. Co. v. Kim W., 206 Cal.Rptr. 609, 160 Cal.App.3d 326 (1984)[footnote omitted].

Id. at 613-614.

State Farm argued below that as a matter of law child molestation is an intentional act. ⁵

[97-1215 La.App. 5 Cir. 5] The plaintiffs filed an opposition to the motion and argued that J.P.M. was incapable of intending to harm or perform acts which were willful or malicious because of his mental condition. They filed a motion seeking to compel J.P.M. to submit to a psychological evaluation and made repeated attempts to depose J.P.M. At the date of the hearing no deposition had yet been taken nor had a psychological evaluation been conducted. The plaintiffs attached an affidavit by Dr. Brian T. Jordan, Ph.D., a Clinical Psychologist, in support of their opposition. The affidavit states general findings regarding individuals suffering from sexual disorders involving deviant behavior. Dr. Jordan averred that such disorders may involve a compulsive drive which may override the individual's ability to restrain deviant sexual urges. Dr. Jordan further averred that in the case of Pedophillia there are recurrent deviant sexual urges. Furthermore, he averred that an evaluation would be needed in order to determine whether an individual was able to control such actions.

The trial judge granted the motion for summary judgment based on his interpretation of jurisprudence which held that as a matter of law intent is inferred in cases involving sexual molestation of minor children by an adult for the purpose of finding an exclusion to homeowner's insurance coverage.

Appellants further argue that the trial judge erred in granting summary judgment before the deposition and mental examination had been conducted. They assert that the outstanding discovery could have proved the existence of a material fact regarding J.P.M.'s sanity and his ability to intentionally inflict harm. In their memorandum in opposition to the motion for summary judgment they argued it was obvious that a stepparent who molested his minor children would have questionable sanity.

Appellants rely on this court's opinion in Kaufman v. Corporate Realty, Inc., 94-533 (La.App. 5th Cir. 12/14/94) 648 So.2d 1010 wherein we vacated the granting of a summary [97-1215 La.App. 5 Cir. 6] judgment because of outstanding discovery which would resolve an...