Allstate Insurance Co. v. Vose, 2004 VT 121 (VT 12/17/2004)

• Decision Date: 17 December 2004
• Docket Number: No. 2004-074, September Term, 2004,2004-074, September Term, 2004
• Citation: 2004 VT 121
• Court: Vermont Supreme Court
• Parties: Allstate Insurance Company v. Janet Vose, Jeffrey Vose and John Finlay, II, on behalf of Minor, S.C.

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2004 VT 121

Allstate Insurance Company v. Janet Vose, Jeffrey Vose and John Finlay, II, on behalf of Minor, S.C.

No. 2004-074, September Term, 2004

Supreme Court of Vermont

December 17, 2004

On Appeal from Chittenden Superior Court, Matthew I. Katz, J.

Bret P. Powell of Unsworth Powell Barra Orr & Bredice, PLC, Essex Junction, for Plaintiff-Appellee.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for Defendants-Appellants.

PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and Allen, C.J. (Ret.), Specially Assigned.

ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. Janet Vose, Jeffrey Vose, and John Finlay, II, acting as legal representative of S.C., a minor, appeal from the trial court's order granting summary judgment to Allstate Insurance Company. The Voses sought insurance coverage after being sued for claims stemming from Janet Vose's abuse of S.C., a disabled foster child in their care. Allstate filed a complaint for declaratory relief, asserting that its policy did not cover the acts alleged in the underlying complaint. The trial court agreed, and granted summary judgment in Allstate's favor. The trial court found that there had not been an "occurrence" within the meaning of Allstate's policy because Janet Vose had intended to harm S.C. Because the policy excluded coverage for injuries caused by the intentional acts of "any insured," the court found no coverage for the negligence claim raised against Jeffrey Vose. The court thus concluded that Allstate had no duty to defend or indemnify the Voses. On appeal, appellants argue that summary judgment was inappropriate because disputed issues of material fact exist, and Allstate was not entitled to judgment as a matter of law. We affirm.

¶ 2. The following facts are undisputed. The Voses were foster parents licensed by the State of Vermont. In February 2000, S.C., a blind and developmentally disabled minor, was placed in their care. In August 2000, Janet Vose put the child in the bathtub and turned on only the hot water. S.C. suffered severe burns as a result. S.C. was removed from the Voses' home, and Janet Vose subsequently pled nolo contendre to first degree aggravated domestic assault. She was sentenced to fifteen years in jail, all suspended but six years.

¶ 3. Janet Vose later acknowledged committing other acts of abuse against S.C., including swinging the child by her feet against a wall and knocking out one of her teeth, slapping her across the face so hard that the child had a mark on her face for several days, throwing S.C. across the room causing the child's mouth to bleed, pulling the child's hair, and putting the child in an empty dresser drawer and closing the drawer for approximately five minutes.

¶ 4. As to the burns inflicted on S.C., Vose testified that she placed S.C. in the bathtub, and turned on just the hot water. The bathtub drain was closed. Janet Vose then left the room. Vose testified that she acted as she did because she did not want S.C. to "be happy." S.C. suffered second degree burns as a result of Janet Vose's acts.

¶ 5. In April 2002, attorney John Finlay, II, acting as legal representative of S.C., filed a complaint against the Voses, raising claims of assault and battery and negligence. The complaint alleged that on numerous occasions between February and August 2000, Janet Vose had caused bruising, and other physical and emotional injury to S.C. that was plainly visible to others, including Jeffrey Vose. The complaint stated that S.C. had suffered serious burns after Janet Vose placed her in the bathtub, turned on the hot water, and left the room. The complaint also alleged that the Voses had breached a duty owed to S.C. by directly causing, or allowing S.C. to suffer, severe physical and emotional harm.

¶ 6. At the time of the acts alleged in the complaint, the Voses were insured under a Homeowners Insurance policy issued by Allstate. Under the terms of its policy, Allstate agreed to pay damages that "an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies . . . ." The policy defined an "occurrence" as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury . . . ." The policy excluded coverage for "any bodily injury . . . intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person."

¶ 7. Allstate entered into a reservation of rights and nonwaiver agreement with the Voses, and it retained counsel to defend them in the underlying action. In September 2002, Allstate filed a complaint for declaratory relief, seeking to be relieved of any obligation to defend and indemnify the defendants in the underlying action. It alleged that the injuries to S.C. were not caused by an occurrence; that they were intended or were reasonably expected to result from Janet Vose's actions; and that coverage was also barred by a professional services exclusion and an exclusion barring recovery for bodily injury to a regular resident of the premises. Allstate later moved for summary judgment, asserting that the undisputed facts demonstrated that the acts alleged in the underlying complaint were not covered under its policy.

¶ 8. In February 2004, the court granted summary judgment in Allstate's favor, concluding that Allstate had no duty to defend the Voses because there had not been an "occurrence" within the meaning of its policy. The court compared the allegations in the underlying complaint with the terms of the policy. In conducting its analysis, the court did not consider the negligence claim raised against Janet Vose, finding it unsupported by the facts alleged in the complaint. The court recognized that an "accident" could occur despite the intentional nature of the insured's conduct. The critical inquiry, the court explained, was whether the injury was intended or expected. The court found that, in this case, Vose's acts were so likely to result in injury that, as a matter of law, it could infer her intent to harm from the nature of her acts. As the court explained, the undisputed facts established that Janet Vose's actions-including throwing the four-year-old blind and developmentally delayed child across a room; kicking; slapping; pulling the child's hair; swinging the child into a wall; placing the child in the bathtub knowing that only the hot water was running and leaving the room; and knocking the child onto the ground-were all done, as Janet Vose admitted, to make the child "unhappy."

¶ 9. Because the court inferred Janet Vose's intent to harm as a matter of law, it rejected her assertion that she had not intended to harm S.C. through her actions. The court also rejected the argument that Janet Vose lacked the mental capacity to control her actions. In support of this assertion, counsel for S.C. had pointed to Janet Vose's testimony regarding her lack of intent, and a document entitled "Family Life Services Staff Review Sheet," which noted, presumably with respect to Janet Vose, "mental stability?" as one issue to be addressed. The court explained that there were no supporting affidavits showing who had created this document, when it was created, how it was used, or how to interpret this one brief notation. The court found that, even accepting the facts put forth by counsel as true, they merely raised a suggestion that, at one point, someone thought that it might be a good idea to question Janet Vose about her mental stability. The court found these facts insufficient to create a triable issue as to whether Janet Vose lacked the mental capacity to govern her conduct or to establish that she was not acting under her own free will in carrying out her stated intent to cause the child "unhappiness" through physical abuse. The court thus concluded, as a matter of law, that the undisputed facts demonstrated that Janet Vose intended to harm S.C. The court noted that it would also find that the harm to S.C. was "reasonably expected to result" from Janet Vose's actions.

¶ 10. The court turned next to the negligence claim against Jeffrey Vose, which was based on an allegation that he knew or should have known that Janet Vose was injuring S.C. The court noted that counsel for S.C. acknowledged that Jeffrey Vose had not committed the underlying physical injuries complained of, nor did counsel argue that S.C. had suffered injuries that were separable from those caused by Janet Vose's acts. The court explained that Allstate's policy excluded coverage for bodily injuries that were "intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person." Thus, the court reasoned, because S.C.'s injuries were the result of Janet Vose's intentional acts, there was no coverage for the allegation of negligence against Jeffrey Vose. Thus, the court found that Allstate had no duty to indemnify the Voses as a matter of law, and it therefore granted summary judgment to Allstate. This appeal followed.

¶ 11. Appellants first argue that Janet Vose is entitled to coverage under the policy because the underlying complaint alleges an "occurrence" within the meaning of the policy, and coverage is not excluded under the intentional or criminal acts exclusion. According to appellants, Janet Vose's acts were an "accident" because they stemmed from "her inability to control her own conduct due to her mental capacity." Appellants assert that Janet Vose did not intend to injure S.C., and the injuries suffered by S.C. were certainly "unusual" and "not to be expected" by S.C.

¶ 12. As discussed below, we conclude that the intentional acts of child abuse alleged in the underlying complaint are not "occurrences" within the meaning of Allstate's policy. Therefore, Allstate had no duty to defend or indemnify Janet...