Allstate Ins. Co. v. Troelstrup

• Decision Date: 09 April 1990
• Docket Number: No. 88SC489,88SC489
• Citation: 789 P.2d 415
• Parties: ALLSTATE INSURANCE COMPANY, Petitioner, v. Glenn Clark TROELSTRUP, Respondent.
• Court: Colorado Supreme Court

Page 415

789 P.2d 415

ALLSTATE INSURANCE COMPANY, Petitioner, v. Glenn Clark TROELSTRUP, Respondent.

No. 88SC489.

Supreme Court of Colorado En Banc.

April 9, 1990.

Zupkus & Ayd, P.C., Patricia M. Ayd, Denver, Sonnenschein, Carlin, Nath & Rosenthal, Paul E.B. Glad, San Francisco, Cal., and Alan M. Posner, Chicago, Ill., for petitioner.

Steven L. Zimmerman, P.C., J. Gregory Morrell, Denver, for respondent.

Richard W. Laugesen, Denver, for amicus curiae State Farm Fire & Cas. Co.

Justice ROVIRA delivered the Opinion of the Court.

The question before us is whether a person who has been convicted of sexual assault on a child and is subsequently sued by the child can look to his homeowner's insurance policy for coverage, when the policy excludes coverage for "bodily injury ... intentionally caused by an insured person."

The petitioner, Allstate Insurance Company (Allstate), seeks a declaration that it has no duty to defend or indemnify the respondent, Glenn Troelstrup. ¹ Troelstrup filed a counterclaim alleging that Allstate had improperly handled the child's claim against him. ² The trial court granted Allstate's motions for summary judgment on both the coverage issue and on Troelstrup's counterclaim. The court of appeals reversed, holding that an unresolved question of fact existed as to whether Troelstrup intended to harm the victim in the underlying action. Allstate Ins. Co. v. Troelstrup, 768 P.2d 731 (Colo.App.1988). We reverse.

I

In the related criminal proceeding, Troelstrup entered a plea of nolo contendere to the charge of sexual assault upon a 12-year-old boy, W.M.L., ³ and received a three-year prison term. In determining the appropriate sentence, the trial court noted that Troelstrup had gone to extraordinary lengths to obtain the confidence of the victim and that these actions were undertaken to "satisfy his own sexual gratification."

Subsequently, a civil suit was brought on behalf of W.M.L. alleging, in part, that Troelstrup engaged in various homosexual acts with W.M.L.; committed the crime of sexual assault on a child; and photographed and developed nude and erotic photographs of W.M.L. The complaint also alleged that W.M.L. experienced pain, shock, and mental suffering as a result of Troelstrup's acts. Monetary relief was sought based upon theories of negligence and extreme and outrageous conduct.

Troelstrup tendered defense of the civil action to Allstate, under his homeowner's insurance policy in effect at the time of the molestations. Allstate accepted the defense under a reservation of rights and retained the services of independent counsel to defend Troelstrup. ⁴ Subsequently, Allstate filed a declaratory judgment action, asserting that it was not required to indemnify or defend Troelstrup in W.M.L.'s civil action because the homeowner's policy excluded coverage for "bodily injury or property damage intentionally caused by an insured person." ⁵ After Troelstrup filed his answer and counterclaim, Allstate moved for summary judgment.

In support of its summary judgment motion, Allstate submitted the deposition testimony of Troelstrup, in which he admitted to taking nude photographs of W.M.L.; massaging W.M.L.'s body, including his groin, with an electric vibrator; sleeping nude with W.M.L.; touching his male organs to W.M.L.'s body while they slept; and proposing oral sex to W.M.L. Further, Troelstrup does not contend that he did not intend to commit these acts. ⁶

Troelstrup then filed a cross-motion for summary judgment, claiming that the intentional injury exclusion was inapplicable because he did not intend to harm W.M.L. In support of this contention, he submitted the deposition testimony of various individuals who had been involved in the treatment of the victim, and the police official who conducted the investigation in the related criminal proceeding. He also submitted the affidavit of Dr. John D. Glismann, a psychiatrist, who stated that "[c]onsciously and overtly [Troelstrup] saw himself as a paternal surrogate and sincerely felt that he was encouraging and supporting the growth and development of male children.... In any event, conscious awareness or conscious intent to produce bodily or emotional injury is not present." Glismann also stated that Troelstrup "consciously and overtly views the use and abuse of [children] as a tragedy and a disgrace."

The trial court granted Allstate's summary judgment motion, holding that Allstate had no duty to indemnify or defend Troelstrup. Subsequently, Allstate filed a second motion for summary judgment regarding Troelstrup's counterclaim which was also granted by the trial court. The court of appeals reversed, holding that "the decision whether Troelstrup acted with intent to harm, so as to invoke the policy exclusion, in light of his proffered evidence is one for the trier of fact, not one to be decided as a matter of law by the trial court on a summary judgment motion." Allstate Ins. Co. v. Troelstrup, 768 P.2d 731, 732 (Colo.App.1988). The court of appeals also held that, because of its resolution of the intent issue, dismissal of Troelstrup's counterclaim was premature.

II

The granting of summary judgment is appropriate only in those instances in which there is no dispute as to material factual issues. See, e.g., Huydts v. Dixon, 199 Colo. 260, 606 P.2d 1303 (1980). Troelstrup argues that the intentional injury exclusion is inapplicable, because he did not subjectively intend to harm the victim. He admits that in some child molestation cases it would be appropriate to infer an intent to harm the victim as a matter of law. He argues, however, that the facts of this case are not "extreme" enough to warrant such a conclusion. ⁷

Allstate, however, argues that an intent to cause injury should be inferred as a matter of law from the nature of the act of sexual misconduct with a child. It points out that Troelstrup has admitted to various acts of child molestation and does not contend that he did not intend to commit these acts. Allstate concludes, therefore, that evidence of Troelstrup's subjective intent to harm the victim is irrelevant.

Generally, an intent to harm is a prerequisite to the application of an intentional injury exclusionary provision. For example, in Butler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934 (1976), the court held that coverage was precluded by an intentional injury exclusion contained in the defendant's homeowner's insurance policy because the evidence presented at trial showed that the defendant intended to harm the plaintiff. Butler involved a dispute between two neighbors which culminated with the defendant's striking the plaintiff in the head with a steel pipe, causing serious injury.

Similarly, in Allstate Insurance Co. v. Steinemer, 723 F.2d 873 (11th Cir.1984), the court applied an intentional injury exclusion to a situation in which the defendant injured a friend by shooting him with a BB gun, holding that summary judgment was not appropriate because there was a genuine issue of material fact regarding the defendant's intent to harm the victim. The Steinemer court noted that:

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.

Id. at 875.

A substantial majority of courts which have considered this issue, however, have declined to apply this "general rule" ⁸ to child molestation cases. ⁹ Some have adopted an "objective test" to evaluate the insured's conduct, while others have held that an intent to cause injury can be inferred as a matter of law in cases involving child molestation.

The "objective test" considers "what a plain ordinary person would expect and intend to result [from the offender's sexual misconduct]." CNA Ins. Co. v. McGinnis, 282 Ark. 90, 94, 666 S.W.2d 689, 691 (1984). See also Mutual Serv. Casualty Ins. Co. v. McGehee, 219 Mont. 304, 711 P.2d 826 (1985). This approach, however, has been criticized as being overbroad, rendering "meaningless the plain [policy] language providing for coverage for certain intentional acts." Rodriguez v. Williams, 107 Wash.2d 381, 385, 729 P.2d 627, 630 (1986).

Most jurisdictions have, instead, inferred an intent to injure as a matter of law in situations in which the insured has engaged in sexual misconduct with a minor. See, e.g., Fire Ins. Exch. v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988); Altena v. United Fire & Casualty Co., 422 N.W.2d 485 (Iowa 1988); Lehmann v. Metzger, 355 N.W.2d 425 (Minn.1984); Rodriguez v. Williams, 107 Wash.2d 381, 729 P.2d 627 (1986). In effect, these courts have taken judicial notice that some harm inevitably results from sexual assaults on children.

Both of these approaches recognize that child molestation is inherently harmful, making consideration of the insured's subjective intent irrelevant. For example, in Allstate Insurance Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984), the court stated that:

[I]mplicit in the determination that children must be protected from such acts [of molestation] is a determination that at least some harm is inherent in and inevitably results from those acts.... "The harm may be manifested in many different mental, emotional and physical ways, leaving a child with possible lasting and debilitating fears."

Id. at 334, 206 Cal.Rptr. at 613 (quoting People v. Austin, 111 Cal.App.3d 110, 114-15, 168 Cal.Rptr. 401, 407 (1980)). See also Allstate Ins. Co. v. Thomas, 684 F.Supp. 1056 (W.D.Okla.1988); Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985); Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 524, 517 A.2d 800, 802-03 (1986) ("the assaults were inherently injurious in the most obvious sense that they could not be performed upon a boy without appalling effects on his mind as well as forbidden contacts with his body.").

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