Allstate Ins. Co. v. Troelstrup

• Decision Date: 04 August 1988
• Citation: 768 P.2d 731
• Docket Number: 86CA0713
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Glenn Clark TROELSTRUP, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 731

768 P.2d 731

ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v.Glenn Clark TROELSTRUP, Defendant-Appellant.

No. 86CA0713.

Colorado Court of Appeals Div. II.

Aug. 4, 1988.

Rehearing Denied Sept. 8, 1988.

Certiorari Granted (Allstate) Feb. 6, 1989.

White and Steele, P.C., Robert A. Zupkus, Carolyn A. Boyd, Denver, for plaintiff-appellee.

Jacobson & Morrell, J. Gregory Morrell, Denver, for defendant-appellant.

SMITH, Judge.

In this declaratory judgment action to determine whether the liability portion of defendant Troelstrup's homeowner's insurance policy would cover any civil liability he might incur as a result of sexually molesting a child, the trial court entered summary judgment for the plaintiff, Allstate Insurance Company(Allstate).The court also granted Allstate's motion for summary judgment on Troelstrup's counterclaim alleging that Allstate had failed, thus far, to conduct a reasonable defense, after assuming such responsibility under a reservation of rights.We reverse and remand with directions.

Troelstrup was charged with felony sexual assault upon a child, to which charge he entered a plea of nolo contendere.He was subsequently sentenced to a prison term of three years.

Thereafter, a tort action was instigated against Troelstrup on behalf of the minor victim.In that pending action, a judgment for damages is being sought on the theories of negligence and outrageous conduct arising out of the sexual assault.

The sole issue before us is not whether Troelstrup is liable for damages, but rather, whether, as a matter of law, Allstate will be excused from satisfying any judgment which the victim may obtain against Troelstrup.

I.

In support of its summary judgment motion, Allstate argued that Troelstrup's nolo contendere plea and his admissions that he had performed homosexual acts with the child were sufficient, as a matter of law, to bring him within the policy's liability exclusion provision.That clause provides: "We do not cover bodily injury or property damage intentionally caused by the insured person."

In opposition to the motion, Troelstrup presented deposition testimony from several involved professionals, as well as from the investigating officer, all of whom, in essence, expressed the opinion that Troelstrup had no subjective intention to injure or harm the child.He also submitted a psychologist's affidavit in which the opinion was expressed that Troelstrup had formulated no conscious intent to harm the child.Troelstrup argues that this evidence raised a sufficient disputed factual issue as to his intent to withstand a summary judgment motion and to require that the court take evidence on the issue of intent to commit bodily harm.We agree.

Generally, an "intentional injury" exclusion applies if the insured acts with the intent to commit harm.Butler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934(1976).However, if the policyholder did not intend his act to cause bodily injury it is covered, even if the reasonably foreseeable consequences of the act involved great harm.Allstate Insurance Co. v. Steinemer, 723 F.2d 873(11th Cir.1984);seeButler v. Behaeghe, supra.

In Allstate v. Steinemer, supra, the United States Court of Appeals in construing essentially the same exclusion language stated:

"Under the majority rule ... an 'intentional injury' exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence."(emphasis supplied)

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