Allstate Ins. Co. v. Mugavero

• Citation: 166 A.D.2d 474,561 N.Y.S.2d 35
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Edward MUGAVERO, et al., Respondents.
• Decision Date: 09 October 1990
• Court: New York Supreme Court Appellate Division

Page 35

561 N.Y.S.2d 35

166 A.D.2d 474

ALLSTATE INSURANCE COMPANY, Appellant, v. Edward MUGAVERO, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 9, 1990.

Cartiglia, Connolly & Callahan, P.C., New York City (Stroock & Stroock & Lavan [Joseph L. Forstadt and Edward G. Baily] of counsel), for appellant.

Mitchell Gittlin, Hauppauge, for respondents Edward Mugavero and Ann Mugavero.

Donner, Hariton & Berka, P.C., Bay Shore (Robert J. Zysk, of counsel), for respondent Ellen B. (Anonymous).

Before BROWN, J.P., and LAWRENCE, KOOPER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants Edward Mugavero and Ann Mugavero in an action brought against them by the defendants Ellen B., individually and on behalf of the infant defendants Christian J.B. and Teresa C.B., the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered February 1, 1989, as denied its cross motion for summary judgment and granted that branch of the motion by the defendants Edward Mugavero and Ann Mugavero which was for summary judgment declaring that the plaintiff was obligated to defend them in the aforenoted action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

The defendant Ellen B. commenced the underlying action herein on behalf of herself and her two infant children against the defendants Edward Mugavero and Ann Mugavero. The gravamen of that complaint was based upon the allegation that Edward had assaulted, sodomized and sexually abused the children while his wife, Ann was babysitting them. However, in addition to alleging intentional conduct on the part of Edward, the complaint alternatively asserted claims against Edward based on allegations that his acts were negligently committed, or were intentionally committed, but "without intending the resultant serious injuries thereby sustained" by the children; and further alleged that Ann was negligent in her supervision of the children.

The Mugaveros forwarded the summons and complaint to the plaintiff Allstate Insurance Company (hereinafter Allstate), which had issued them a homeowner's policy, on the ground that Allstate was obligated to defend and indemnify them in the underlying action.

Allstate thereafter commenced this declaratory judgment action, claiming that it had no duty to defend or indemnify either Mugavero, relying upon a provision in the homeowner's policy, which precludes coverage to any named insured for "bodily injury * * * intentionally caused by an insured person". On the parties' motion and cross motion for summary relief, the Supreme Court, in relevant part, declared that Allstate was required to defend the Mugaveros with regard to the underlying action (see, Allstate Ins. Co. v. Mugavero, 142 Misc.2d 361, 364-365, 537 N.Y.S.2d 961). We now affirm.

It is well-settled law that "[t]he duty to defend insureds * * * is derived from the allegations of the complaint and the terms of the policy. If the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend (Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 669-670 [439 N.Y.S.2d 858, 422 N.E.2d 518]. Moreover, when an exclusion clause is relied upon to deny coverage the insurer has the burden of demonstrating that the 'allegations of the complaint cast the pleading solely and entirely within the policy exclusions, and further, that the allegations, in toto, are subject to no other interpretation' (International Paper Co. v. Continental Cas. Co., 35 NY2d 322, 325 [361 N.Y.S.2d 873, 320 N.E.2d 619]" (Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 73-74, 544 N.Y.S.2d 531, 542 N.E.2d 1048).

We are cognizant of the horrific nature of sexual molestation of children. Nevertheless, that factor is not relevant nor should it govern our decision concerning insurance coverage in this case. It is not disputed by our dissenting colleague that the complaint in the underlying action herein asserts claims based upon the alleged negligence of the defendants, which are not excluded by any of the provisions in the Allstate policy. In analogous cases involving, in relevant part, the alleged sexual abuse of an adult, the courts have not looked beyond the allegations in the complaint in determining whether the insurance company which had issued a homeowner's policy had a duty to defend its insured ( see, State Farm Fire and Cas. Co. v. Irene S., 138 A.D.2d 589, 591, 526 N.Y.S.2d 171; New York Cent. Mut. Fire Ins. Co. v. Heidelmark, 108 A.D.2d 1093, 485 N.Y.S.2d 661). Allstate nevertheless claims that Edward Mugavero did not and could not have negligently committed the conduct complained of in the underlying action since the very nature of that alleged conduct, sexual abuse of children, compels an inference of intent as a matter of law. We disagree.

Initially, we note that "[i]f Allstate * * * believed that some acts are so certain to cause injury that an intent to harm should be inferred to the insured, then the exclusion clause should have provided for this expressly. * * * The fact that the exclusion clause does not provide for an inference of * * * harm counsels against this court's imposition of such a clause" (Allstate Ins. Co. v. Jack S., 709 F.Supp. 963, 966-967; see, Baldinger v. Consolidated Mut. Ins. Co., 15 A.D.2d 526, 222 N.Y.S.2d 736, affd. 11 N.Y.2d 1026, 230 N.Y.S.2d 25, 183 N.E.2d 908). As conceded by Allstate, no New York case has held that in an insurance context, an intent to injure may be inferred as a matter of law simply from the nature of the alleged conduct. In any event, " '[i]ntent is not established merely because an individual has suffered severe emotional distress as the proximate result of another's actions' (Minzer, Damages in Tort Actions, § 6.12[1], at 6-45)" (Richard L. v. Armon, 144 A.D.2d 1, 5, 536 N.Y.S.2d 1014). Whether an inference should be drawn that Edward had intended to harm the children from the nature of his acts alone is a determination to be made by the trier of fact (see, Richard L. v. Armon, supra, at 5, 536 N.Y.S.2d 1014).

Further, in Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 399-400, 442 N.Y.S.2d 422, 425 N.E.2d 810, the Court of Appeals addressed the question of whether the public policy of this state precluded insurance coverage where the insured had been convicted of sexual abuse of the adult complainant. In determining that the public policy of this State did not preclude coverage, the court stated that "[w]hether such coverage is permissible depends upon whether the insured, in committing his criminal act, intended to cause injury. One who intentionally injures another may not be indemnified for any civil liability thus incurred. However, one whose intentional act causes an unintended injury may be so indemnified" (Public Serv. Mut. Ins. Co. v. Goldfarb, supra, at 399, 442 N.Y.S.2d 422, 425 N.E.2d 810) Neither Allstate nor our sister states in the cases relied upon by our dissenting colleague has "provided us with any reason in principle to apply a different rule of public policy when liability is claimed to arise from acts of sexual assault" involving children (MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 471 A.2d 1166, 1168 [NH]. Contrary to Allstate's contention, the ruling in MacKinnon v. Hanover Ins. Co. (supra) was not overruled by the decision in Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800 (see, Allstate Ins. Co. v. Jack S., 709 F.Supp. 963, supra, at 967, fn. 1; cf., Fire Ins. Exchange v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620, 628, n. 10, 629-630).

Since we find that Allstate has a duty to defend the Mugaveros under the homeowner's policy purchased by them, the other contention raised by Allstate need not be addressed.

BROWN, J.P., and LAWRENCE and KOOPER, JJ., concur.

BALLETTA, Justice dissents and votes to reverse the order insofar as appealed from and to grant the plaintiff's motion for summary judgment declaring that it has no duty to defend the defendants Ann and Edward Mugavero, with the following memorandum:

Despite what it concedes to be the "horrific nature of [the] sexual molestation of children", the majority concludes that an insurer has a duty under a homeowner's insurance policy to defend the insured in a suit brought against the insured to recover damages for child sexual abuse. I do not agree and vote to grant summary judgment to the plaintiff Allstate declaring that it has no duty to defend the Mugaveros in the personal injury action.

Briefly, the defendant Ellen B. commenced an action against the defendants Mugavero based on allegations that Edward Mugavero had sodomized and sexually abused the infant defendants Christian B. and Teresa B. while his wife, Ann Mugavero, was babysitting the children. The complaint set forth five causes of action to wit: (1) That Edward Mugavero "intentionally and without provocation assaulted, sodomized and sexually abused" Christian and Teresa B.; (2) That Edward Mugavero "did intentionally assault, sodomize and sexually abuse" the infants "without intending the resultant serious injuries thereby sustained" by the infants; (3) That Edward Mugavero "did negligently and carelessly, and with wanton disregard of others, assault, sodomize and sexually abuse" the infants; (4) That Ann Mugavero was negligent in allowing her husband to assault the children and in failing to properly safeguard the children; and (5) That Ellen B., the infant's mother, had expended money to relieve the infants' pain and suffering caused by the Mugaveros' conduct.

The bill of particulars submitted by the infants indicates that the abuse took place between 1979 and April 1984 (with respect to the boy) and...