Allstate Ins. Co. v. Jarvis

• Decision Date: 09 April 1990
• Docket Number: No. A90A0163,A90A0163
• Parties: ALLSTATE INSURANCE COMPANY v. JARVIS et al.
• Court: Georgia Court of Appeals

Page 489

393 S.E.2d 489

195 Ga.App. 335

ALLSTATE INSURANCE COMPANY v. JARVIS et al.

No. A90A0163.

Court of Appeals of Georgia.

April 9, 1990.

Kent & Barrow, R. Stephen Sims, Savannah, for appellant.

Penny J. Haas, Charles R. Ashman, Jeffrey W. Lasky, Savannah, for appellees.

DEEN, Presiding Judge.

Gene L. Jarvis entered a guilty plea to sexually molesting the minor son of one of the parishioners of the church where he served as Minister of Music and received a ten-year probated sentence. The child, through his guardian ad litem, brought an action against Jarvis for past and future physical and mental pain and suffering. Jarvis tendered the complaint to Allstate, his homeowner's insurance carrier, along with a demand that it assume his defense and pay any judgment arising from the lawsuit. Allstate filed a petition for a declaratory judgment and a motion for summary judgment, contending that it had no obligation to defend or provide coverage because the policy excluded coverage for "bodily injury ... which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by the insured person." The trial court denied the motion, holding that intent to commit bodily injury is a jury question because, while Jarvis admitted intending to commit the acts, his psychologist stated that he was a pedophile and incapable of forming the intent to inflict injury upon the child. Held:

In Roe v. State Farm Fire, etc., Co., 188 Ga.App. 368, 369, 373 S.E.2d 23 (1988), this court noted that Georgia's statutes "prohibiting child molestation (OCGA § 16-6-4) and enticement of children for indecent purposes (OCGA § 16-6-5) were promulgated by the Legislature as part of a general statutory scheme to protect children under the age of 14 from physical and psychological damage resulting from sexual exploitation. [Cit.] In adopting this legislation, the Legislature made the common-sense recognition that inherent in every act is the element of harm." In affirming at 259 Ga. 42, 376 S.E.2d 876 (1989), the Supreme Court found that the offense of child molestation carries with it a presumption of intent to inflict injury which is not rebutted by an insured's own self-serving testimony.

In the instant case, we are presented with the issue of whether a psychologist's testimony may rebut the presumption of intent to harm. This is an issue of first impression in Georgia.

In California, where this issue has been raised several times on appeal, the 9th Circuit Court of Appeals, in State Farm Fire, etc., Co. v. Estate of Jenner, 856 F.2d 1359, 1365 (9th Cir.1988), took the position that acts of child molestation "are willful as a matter of law unless the insured presents credible evidence that he did not intend to harm his victim." The court, however, reversed its position after granting a petition for rehearing and vacated its decision after Fire Ins. Exchange v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988), was decided while the rehearing petition was pending. In Abbott, 251 Cal.Rptr. at 628, the court examined the applicable case law from other jurisdictions and found that most jurisdictions favor the insurer. The Abbott court noted that most courts infer a specific intent to injure as a matter of law, and that some opinions, such as Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984), "bolster this mandatory inference by surmising that the Legislature penalized sexual misconduct with minors [because of] its inherent harmfulness. [Cit.]," and that "[s]ome of these opinions disregard not only the insured's denial of an intent to injure, but [also] psychiatric evidence to the same effect." The court then found that the psychiatric testimony as to subjective intent to injure the victim was irrelevant because "[v]irtually none of the testimony was concerned with disproving that [the] insured intended to perform the acts constituting criminal sexual misconduct or that Abbott lacked the specific intent required by [the] Penal Code." Id. 206 Cal.Rptr. at 630. In State Farm Fire, etc., Co. v. Abraio, 874 F.2d 619, 623 (9th Cir.1989), the court found that under Abbott the presumption of intent to harm is irrebuttable.

In Florida, the intermediate appellate courts were divided on the application of the subjective standard. In Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989) the issue was resolved when the court held that proof of subjective intent is not necessary to invoke an intentional acts policy exclusion. "To state that a child molester intends anything but harm and long-term emotional anguish to the child defies logic." Id. 1053. In other words, child molestation is one of those acts which is "so extreme that public policy does not permit them to be insured." State Farm Fire, etc., Co. v. Huie, 666 F.Supp. 1402, 1405 (N.D.Cal.1987).

An analysis of the relevant case law from other jurisdictions when it is applied to the public policy of Georgia, as stated in Roe v. State Farm Fire, etc., Co., supra, convinces us that the rules set forth in California and Florida also apply in sexual molestation cases in Georgia and that coverage is not afforded under Jarvis' homeowner's insurance policy. Appellants' argument ardently articulated advancing the idea that since having admitted committing the acts he nevertheless was incapable of forming criminal intent because of his status as an acknowledged pedophile has been previously rejected by this court. In the case of In the Interest of C. M., 172 Ga.App. 757, 324 S.E.2d 581 (1984) the father desired to continue an incestuous relationship because he thought it healthy and beneficial. He wanted to marry the daughter and for her to have his baby. We affirmed the trial court's termination of parental rights. Compare Grant v. State, 178 Ga.App. 398, 399, 343 S.E.2d 422 (1986) where defendant had remarked: " '[I]f the father didn't break the daughter in the stepfather should.' " His conviction was affirmed. In Burger v. State, 118 Ga.App. 328, 163 S.E.2d 333 (1968), eight judges on this court held that "A plea of chronic alcoholism is not available as a defense to a charge of drunkenness." It was further observed at 332, 163 S.E.2d 333: "And why...