Farmers Union Mut. Ins. v. Kienenberger

• Decision Date: 25 February 1993
• Docket Number: No. 92-180,92-180
• Citation: 847 P.2d 1360,257 Mont. 107
• Parties: FARMERS UNION MUTUAL INSURANCE, Plaintiff and Respondent, v. Ron KIENENBERGER, Patti Kienenberger, Jaret Kienenberger, and J.L., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1360

847 P.2d 1360

257 Mont. 107

FARMERS UNION MUTUAL INSURANCE, Plaintiff and Respondent, v.Ron KIENENBERGER, Patti Kienenberger, Jaret Kienenberger and J.L., Defendants and Appellants.

No. 92-180.

Supreme Court of Montana.

Submitted on Briefs Nov. 24, 1992.

Decided Feb. 25, 1993.

Patrick F. Flaherty, Great Falls, for Kienenberger.

John E. Seidlitz, Jr., Great Falls, for J.L.

William J. Gregoire, Smith, Walsh, Clarke & Gregoire, Great Falls, for Farmers Union Mut. Ins.

HARRISON, Justice.

This is an appeal from the District Court of the Eighth Judicial District, County of Cascade, State of Montana, the Honorable John M. McCarvel presiding.The Kienenbergers and J.L. appeal from an order granting the respondent, Farmers Union Mutual Insurance (Farmers Union) summary judgment on the basis that it owed no duty to defend or indemnify its insured, Ron Kienenberger, in the underlying action.We affirm.

The underlying action arose in January 1991, when Ron Kienenberger's son Jaret, age 13, raped J.L., age 28.In the ensuing criminal proceedings, Jaret pled guilty to sexual intercourse without consent.J.L. then sued Jaret's parents on a theory of negligent supervision.She alleged in her complaint that the Kienenbergers owed a duty to her and to others to provide appropriate supervision to their child, Jaret Kienenberger, and that they had negligently supervised his upbringing "to the point where it was reasonably foreseeable that he would be a danger to himself and to third parties."The District Court dismissed J.L.'s action in April, 1992, on the Kienenbergers' motion, and J.L. appealed.Her appeal has not been decided.

The case before the Court is a declaratory judgment action instituted in District Court in October 1991 by Farmers Union.Farmers Union sought an order that it owed no duty to its policy holder, Ron Kienenberger, even though it had retained counsel for the Kienenbergers in J.L.'s action.The District Court held that under Ron Kienenberger's Farm and Ranch Liability Policy, Farmers Union was not obligated either to indemnify or to defend the Kienenbergers against J.L.'s claim for damages.

The dispositive issue on appeal is whether the District Court erred in finding that Kienenbergers' insurance policy precluded coverage because J.L.'s injuries were not caused by an "occurrence" as defined in the policy.Appellants also question whether the District Court erred in finding that coverage was precluded by a clause in the policy that expressly excluded injuries caused by sexual molestation.We do not decide this issue because we affirm the District Court on the first issue.Appellants also raise another issue: whether negligent supervision by Jaret Kienenberger's parents is an "occurrence" for which Farmers Union was obligated to provide coverage.The District Court did not address this issue and we will not decide it here.

The policy provided that Farmers Union would pay damages for bodily injury or property damage caused by an "occurrence," defined as "an accident ... neither expected nor intended from the standpoint of the insured"(emphasis added).An intentional act cannot be an "occurrence" because it is not an accident and because it is intended or expected by the insured.Therefore, injuries caused by an insured person's intentional act are not covered.New Hampshire Insurance Group v. Strecker(1990), 244 Mont. 478, 481, 798 P.2d 130, 132.

It is undisputed that as a member of Ron Kienenberger's household Jaret was an insured, and that Jaret's sexual assault of J.L. was intentional.Summary judgment is proper when the record discloses no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Rule 56(c), M.R.Civ.P.;also seeTruck Insurance Exchange v. Waller(1992), 252 Mont. 328, 331, 828 P.2d 1384, 1386.Since it is undisputed that J.L.'s injuries were caused by an insured person's intentional act, and the insurance contract clearly and unambiguously excludes coverage for intentional torts, Farmers Union is entitled to summary judgment as a matter of law.

AFFIRMED.

TURNAGE, C.J., and GRAY, WEBER and McDONOUGH, JJ., concur.

TRIEWEILER, Justice, concurring in part and dissenting in part.

I concur with the result of the majority opinion because I conclude that Jaret's conduct constituted sexual molestation and that damages for such conduct were specifically excluded by the terms of the policy.

I dissent from the majority's conclusion that J.L.'s injuries were not an occurrence within the meaning of the policy.

J.L.'s claim against the parents is not based upon intentional conduct by the parents.It is based upon their alleged negligent failure to supervise their son, Jaret.Therefore, the authority relied upon by the majority is not on point and should not control the disposition of this case.

In New Hampshire Insurance Group v. Strecker(1990), 244 Mont. 478, 798 P.2d 130, the insured sought coverage for his own sexual assault and molestation of his daughter.We held that under those circumstances his conduct was not an "occurrence" within the meaning of the policy because it was not an accident and because the consequences of his conduct were intended.

In this case, even though the Kienenbergers are accused of negligently failing to supervise their son, there is no allegation, nor is it reasonable to conclude that by their negligent conduct they ever intended that their son would sexually assault J.L. or any other person.The circumstances in this case are much more similar to, and therefore, controlled by our decision in Lindsay Drilling and Contracting v. United States Fidelity and Guaranty Company(1984), 208 Mont. 91, 676 P.2d 203.In that case, the plaintiff claimed that among other things, Lindsay negligently allowed its employees to interfere with samples taken from drilled test holes at the site of mining claims.USF & G insured Lindsay, and like the insurer in this case, sought a declaratory judgment to the effect that the conduct of its insured which was complained of did not fall within the risks covered by its policy of insurance.In that case, USF & G relied on the same definition of "occurrence" that is found in the policy that we construe in this case and contended that since intentional conduct was the basis for the plaintiff's complaint, there was no occurrence within the meaning of the policy.We disagreed and held as follows:

A covered occurrence, as defined in the policy, is one whose consequences were neither expected nor intended by the insured.In Northwestern National Casualty Co. v. Phalen(1979), 182 Mont. 448, 597 P.2d 720, we held that an insurance policy with the same definition of "occurrence" covered an intentional act whose consequences were neither expected nor intended.Here, the counterclaim alleges in part that Lindsay negligently allowed bystanders to tamper with the core samples.This scenario does not include intended or expected consequences.Therefore, the counterclaim sets forth a covered "occurrence" as...