Fire Ins. Exchange v. Abbott

Decision Date23 September 1988
Docket NumberNos. H002982,H003275,s. H002982
Citation204 Cal.App.3d 1012,251 Cal.Rptr. 620
CourtCalifornia Court of Appeals Court of Appeals
PartiesFIRE INSURANCE EXCHANGE, Plaintiff and Appellant, v. Robert ABBOTT, et al. Defendants and Respondents. FIRE INSURANCE EXCHANGE, Plaintiff and Appellant, v. Robert SHREVE, et al., Defendants and Respondents.

Raoul D. Kennedy, Stephen A. McFeely, Gloria J. Garland, Crosby, Heafey, Roach & May, Oakland, Ralph E. Mendell, Campbell, Warburton, Britton, Fitzsimmons & Smith, San Jose, for plaintiff and appellant.

Gerald Z. Marer, John F. Schuck, Marer, Marer & Schuck, Palo Alto, Richard Alexander, Alexander & Bohn, Bruce W. Nickerson, San Jose, for defendants and respondents.

AGLIANO, Presiding Justice.

1. Introduction

Was the trial court required to infer from adult criminal sexual misconduct with a child that the adult intended to injure the child? A finding of such intent precludes insurance coverage due to statutory and policy exclusions for intentionally caused injuries. In these two cases consolidated for purposes of oral argument and decision, Fire Insurance Exchange ("insurer") seeks declarations that it is not required to indemnify its insured, Robert Abbott, or defend its insured, Robert Shreve, in underlying civil actions by minors 1 seeking damages due to insureds' sexual misconduct. In both cases, the trial court found insurance exclusions inapplicable, crediting psychiatric evidence offered to show that insureds did not intend to injure the minors they sexually molested.

We explain below why we will reverse both judgments.

2. Facts
A. Abbott (H002982)

On June 17, 1983, Abbott engaged in sexual misconduct with a six-year-old girl. He reached inside her pants and fondled her thigh. She complied with his request to touch his penis, but refused his request to kiss it. Abbott testified he had become exposed when he sat in a child's chair after fixing a movie machine which a number of children were watching in his house. He acted on a sudden feeling of sexual arousal after eye contact with the girl. His penis contacted her face when he came to his senses, felt ashamed, stood up, and left the room.

On November 9, 1983, in the underlying criminal case Abbott pled no contest to a felony charge of "willfully and lewdly" committing "any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child" in violation of Penal Code section 288 subsection (a).

On December 19, 1983, the girl filed a civil case against Abbott alleging negligent and intentional sexual molestation resulting in personal injuries including emotional and mental distress. The negligence claim alleged Abbott's "mental incapacity."

Prior to the incident, Abbott purchased renter's insurance from insurer affording liability coverage up to $100,000 for accidents. The policy defines "accident" as "a sudden event ... resulting in bodily injury ... neither expected nor intended by the insured."

At Abbott's request, insurer retained counsel to defend him in the underlying civil case, but reserved its rights. At the close of the girl's case-in-chief, she withdrew her intentional tort claim. The court granted her motion for a directed verdict of negligence and instructed the jury, regarding the girl, to decide only the amount of her damages. The jury awarded her $125,000 in December 1984. 2

Insurer subsequently brought this declaratory relief action against Abbott and the girl alleging, among other things, that Abbott's conduct is not covered by his renter's insurance policy. Abbott and the girl answered insurer's complaint by alleging that Abbott's actions resulted from mental incapacity or emotional distress and were not intentional or intended to harm the girl.

One of the issues severed for court trial was whether insurer has a duty to indemnify Abbott for the judgment in the underlying civil case. 3

The evidence recited above was presented in the court trial of the declaratory relief action. Additionally, a psychiatrist and a psychologist who interviewed Abbott were called by him as expert witnesses to testify as follows. Abbott is a pedophile, a type of child molester who prefers prepubescent children to arouse or gratify his own sexual desires. Like other pedophiles, he thought sexual contact with a child was harmless or even mutually beneficial and pleasurable, not harmful. He lacked the mental capacity to govern his sexual attraction to children in accordance with reason. Denial of this sexual interest is part of his psychological makeup.

The psychologist testified that Abbott has an impulsive disorder of pedophilia. Unlike a predatory pedophile who creates situations to interact with children, Abbott is regressed and erupted in a sudden manner that surprised him. His self-control was impaired and he acted without forethought of sexual gratification. He did intend his physical acts. The psychiatrist testified that Abbott did have sufficient volitional control to satisfy his own lust by touching the child or asking the child to touch him.

After court trial, the trial judge concluded that, although Abbott's conduct had violated Penal Code section 288 subdivision (a), insurer was required to indemnify him based on the following findings. "This Court accepts the psychiatric testimony proving that Abbott is mentally ill and, in fact, had no intent to harm the ... girl.... [p] [Insurer] is obligated to provide coverage to ... Abbott for the molestation of [the girl], which this Court finds [occurred] as a result of Abbott's mental incapacity. Abbott's conduct was a sudden event which resulted in bodily injury that was neither expected nor intended by him, thereby meeting the policy's definition of accident conduct [sic ]."

B. Shreve (H003275)

Shreve commenced a sexual relationship with a 14-year-old boy in mid-June 1983. The boy was a ninth-grade public school student in a class taught by Shreve during the 1982-1983 school year. On the last day of that school year, the boy was discussing girls with Shreve when Shreve said if worse came to worse, the boy could always take this out and wave it at them. Shreve illustrated his remark by grasping the boy's penis through his pants. The boy was surprised, but felt it was a friendly gesture and continued talking with Shreve for a while. At the time, the boy felt that Shreve was his only friend and was very supportive.

Their relationship became overtly sexual during the summer of 1983 when Shreve called the boy to help him with a school project. While they were alone together in a classroom, Shreve masturbated the boy. Shreve felt driven to do so and intended to do so.

Shreve massaged and masturbated the boy several more times during summer vacation. At least once they engaged in mutual oral copulation. This sexual relationship continued throughout the boy's tenth-grade school year, 1983-1984. Shreve often masturbated the boy in his office during the lunch hour, sometimes through his pants. (Shreve minimized the frequency of these contacts.) According to the boy, Shreve sodomized him once in October 1983 in a classroom after school. On this occasion, Shreve furnished blankets and lotion. Shreve denied sodomy.

On February 19, 1985, in the underlying criminal case, Shreve pled guilty to a felony charge of being a "person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age" in violation of Penal Code section 288a, subdivision (b)(2).

On August 15, 1985, the boy and his family filed a civil case against Shreve alleging negligent sexual molestation resulting in personal injuries including mental and emotional distress. The negligence claim alleged Shreve's mental incapacity and disturbance and psychological disability.

Prior to commencement of this sexual relationship, Shreve purchased homeowner's insurance from insurer affording liability coverage up to $100,000 for accidents. The policy definition of "accident" is the same as in Abbott's policy (p. 3 above.) It also excludes coverage of bodily injury "[a]rising as a result of intentional acts of an insured."

At Shreve's request, insurer retained counsel to defend him in the underlying civil case. Pursuant to a reservation of rights, on November 19, 1985, insurer filed this declaratory relief action against Shreve, the boy and his family, alleging that Shreve's conduct is not covered by his homeowner's insurance policy because it was intentional. Shreve answered insurer's complaint by alleging that his conduct was caused by a mental disease or defect depriving him of the capacity to cause the resulting damage or harm and was not intentional. The boy and his family answered insurer's complaint by alleging that due to mental incapacity and emotional distress, Shreve never expected or intended to harm them.

The evidence recited above was presented in a court trial of this declaratory relief action. Additionally, Shreve testified that he did not intend to harm the boy in any way. The same psychologist who testified about Abbott interviewed and testified about Shreve as follows. Shreve has been basically homosexual since adolescence but has repressed it and is unhappy about it due to a fundamentalist background. He married and had children in hopes of ending his homosexual orientation. He is also compulsive and bottles up his feelings, which occasionally overwhelm his control. He feels comfortable with adolescent boys because he himself is a teenager emotionally. He lacked the mental capacity to govern his sexual attraction to the boy in accordance with reason. He believed the sexual contact was enjoyable and not harmful to the boy. Even though the relationship continued over a year, Shreve was acting impulsively and compulsively....

To continue reading

Request your trial
76 cases
  • Esparza v. Burlington Ins. Co.
    • United States
    • U.S. District Court — Eastern District of California
    • August 5, 2011
    ...than its duty to indemnify, "where there is no possibility of coverage, there is no duty to defend." Fire Ins. Exchange v. Abbott, 204 Cal.App.3d 1012, 1029, 251 Cal.Rptr. 620 (1988). Determination "whether the insurer owes a duty to defend usually is made in the first instance by comparing......
  • Horace Mann Ins. Co. v. Fore
    • United States
    • U.S. District Court — Middle District of Alabama
    • January 29, 1992
    ...the dissent of Zordan v. Page ... and certified this conflict for review by the Florida Supreme Court. Fire Ins. Exc. v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (Cal.App.1988). The prescience of those remarks of the Abbott court is apparent when one reads the comments of a federal di......
  • People v. Rudd
    • United States
    • California Court of Appeals Court of Appeals
    • April 28, 1998
    ...115 P. 210; Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 134, 65 Cal.Rptr.2d 280; Fire Ins. Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1022, 251 Cal.Rptr. 620.)** See footnote *, ...
  • Worcester Ins. Co. v. Fells Acres Day School, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 22, 1990
    ...of Appeal have disagreed on the issue, and the California Supreme Court is now considering it. Compare Fire Ins. Exch. v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988) (following majority rule), with J.C. Penney Casualty Ins. Co. v. M.K., 209 Cal.App.3d 1208, 220 Cal.App.3d 484, 257......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT