Mid-Century Ins. Co. v. L.D.G.

• Decision Date: 16 June 1992
• Docket Number: MID-CENTURY,No. WD,WD
• Citation: 835 S.W.2d 436
• Parties: INSURANCE COMPANY, Respondent, v. L.D.G., et al., Appellants. 44585.
• Court: Missouri Court of Appeals

Page 436

835 S.W.2d 436

MID-CENTURY INSURANCE COMPANY, Respondent, v. L.D.G., et al., Appellants.

No. WD 44585.

Missouri Court of Appeals Western District.

June 16, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

July 28, 1992.

Application to Transfer Denied Sept. 22, 1992.

Michael W. Manners, Kevin Blackwell, Paden, Welch, Martin & Albano, P.C., Independence, for appellants.

Lance W. LeFevre, Heilbron & Powell, Kansas City, for respondent.

Before BERREY, P.J., and ULRICH and HANNA, JJ.

ULRICH, Judge.

L.D.G., a minor, and her parents appeal from summary judgment in favor of Mid-Century Insurance Company ("Mid-Century"). Mid-Century instituted a declaratory judgment action to determine whether the homeowner's insurance policy issued by the carrier to Robert W. and Lihua McKinney, husband and wife, covered venereal disease and its resultant effects sustained by L.D.G. as a direct result of Robert McKinney raping the then two-year-old child. The policy contained a clause excluding bodily injury intentionally caused "by or at the direction of an insured or ... resulting from an occurrence caused by an intentional act where the results are reasonably foreseeable." Appellants contend the trial judge applied the wrong standard of law. The summary judgment is affirmed.

On December 29, 1986, Mrs. McKinney was baby-sitting L.D.G., a two-year-old girl, at Mrs. McKinney's home. Mrs. McKinney left L.D.G. alone with Mr. McKinney and, while his wife was away from the home, Mr. McKinney raped L.D.G. Following sexual contact with Mr. McKinney, L.D.G. contracted the sexually transmitted disease chlamydia. Mr. McKinney's deposition statement, taken in another case and filed with the trial court in this case, was that he was unaware he was a chlamydia carrier at the time of the rape. Mr. McKinney's statement was the only evidence regarding whether he knew he was infected with the disease. In the other case, L.D.G.'s father, acting as her next friend, sued the McKinneys, alleging in one of several counts that Mr. McKinney negligently transmitted chlamydia to L.D.G.

Mid-Century issued a homeowner's insurance policy to the McKinneys, which was in force on December 29, 1986. The policy provided that Mid-Century will "pay [for] all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damage covered by this policy." The policy's exclusionary provision states that coverage does not extend to "bodily injury" which is either "caused intentionally by or at the direction of an insured, or ... [results] from any occurrence caused by an intentional act of an insured person where the results are reasonably foreseeable."

After L.D.G., by her next friend, filed suit against the McKinneys, Mid-Century initiated the declaratory judgment action seeking construction of the policy's exclusionary provision and determination whether the exclusionary clause is applicable to Mr. McKinney's conduct. Mid-Century filed its motion for summary judgment in the declaratory judgment action arguing that transmission of chlamydia by Mr. McKinney to L.D.G. was either expected, intended, or the reasonably foreseeable result of Mr. McKinney's intentional act of rape. The trial court granted Mid-Century's summary judgment motion, holding that the policy's exclusionary provision is applicable because the insured, Mr. McKinney, acted with the intent or expectation that bodily injury will result, even though the bodily injury that resulted is different either in character or magnitude from the injury that was intended. The trial court cited Hanover Insurance Co. v. Newcomer, 585 S.W.2d 285, 288 (Mo.App.1979), as authority for its decision. The trial court concluded that the insurance policy did not afford insurance coverage for any liability Mr. McKinney may have to L.D.G. and her family as a result of his intentional criminal act.

Appellants cite American Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369 (Mo. banc 1991), as controlling authority in this appeal. In Pacchetti, the Missouri Supreme Court addressed the issue of whether a homeowner's insurance contract's exclusionary provision that excluded coverage for bodily injury "which is expected or intended by any insured" barred coverage of the insured's act of either injecting a sixteen-year-old boy with pure cocaine, assisting the boy to inject himself, or providing the boy cocaine knowing that he would inject himself. The youth's immediate death was caused by the injected cocaine, and the boy's family sued the insured, Mr. Pacchetti. Id. at 370. The homeowner's insurance provider, American Family Mutual Insurance Co., instituted the declaratory judgment action to determine whether the exclusionary provision in Mr. Pacchetti's homeowner's insurance policy barred recovery. Id. The court in Pacchetti decided that the insured's actions were not within the scope of the exclusionary provision. Id. The supreme court "affirm[ed] the judgment of the trial court, finding that the injury was within the liability coverage of the policy." Id.

The supreme court held in Pacchetti that "[i]t remains for the insurer to show that this particular insured expected or intended the result which occurred." Id. at 371. The court concluded that "what Pacchetti intended or expected is a question of fact for the trial court." Id. The insurance policy pertaining to this appeal, unlike the policy in Pacchetti, contains an additional provision excluding coverage for injuries resulting from the intentional acts of the insured which are reasonably foreseeable. Therefore, the summary judgment in favor of Mid-Century will be upheld if the record supports the finding that Mr. McKinney intended to transfer chlamydia to L.D.G. or that the transmission of chlamydia is a reasonably foreseeable result of the rape.

The current record does not support a finding that Mr. McKinney intended to transmit chlamydia to L.D.G. Mr. McKinney testified, by deposition in the civil action initiated by L.D.G.'s next friend, that he did not know he had chlamydia when he raped L.D.G. Mr. McKinney's deposition testimony was the only evidence presented regarding whether he intended to infect L.D.G. with a venereal disease. Thus, Mid-Century has failed to show that the insured, Mr. McKinney, intended L.D.G. to contract chlamydia from the rape. Id.

However, the absence of proof that Mr. McKinney intended the specific harm sustained by L.D.G. is not dispositive. The present appeal is distinguishable from Pacchetti in that Mr. McKinney's homeowner's insurance policy contains the provision excluding coverage for bodily injuries "resulting from an occurrence caused by an intentional action [by the insured] where the results are reasonably foreseeable." This clause requires a determination, which was not made by the trial court, of whether the transmission of a venereal disease, such as chlamydia, is a reasonably foreseeable result of rape. ¹ A reasonably foreseeable event is one "that a reasonable person would recognize ... could or might occur and that steps should be taken to prevent it." Rogger v. Voyles, 797 S.W.2d 844, 847 (Mo.App.1990). In Rogger, the lengthy discussion of foreseeability explains that "[F]oreseeability is not to be measured by what is more probable than not, but includes what is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct." Id. (Citation omitted). Accordingly, the transmission of a venereal disease, as a matter of law, is a reasonably foreseeable consequence of rape, which Mr. McKinney should have foreseen. Therefore, the trial court's summary judgment is proper and is affirmed.

BERREY, J., concurs.

HANNA, P.J., concurs in part and concurs in result in separate concurring opinion.

HANNA, Judge, concurring.

I concur in the result reached by the majority, but would take a different legal route to arrive there. I agree that the majority's "reasonably foreseeable" exclusion is applicable, but disagree that the other exclusion, "caused intentionally" is not. The majority would find coverage if the insurance policy's only exclusion was where the injury was "caused intentionally" by the insured. In the majority's view, American Family Mut. Ins. v. Pacchetti, 808 S.W.2d 369 (Mo. banc 1991), first requires that the harm intended must be the specific disease or injury which in fact results and second, the insured's intent to cause that specific injury must be judged by a subjective standard. Absent the broader "reasonably foreseeable" exclusion, the majority would provide insurance coverage for one who commits a sexual assault against a minor. This should not be the law of this state. Neither the facts of this case nor Pacchetti should lead to such an interpretation.

I believe the issue is whether Mr. McKinney intended to cause "bodily injury," not whether he intended to transmit chlamydia or any other venereal disease. Mr. McKinney's subjective intent to pass chlamydia is irrelevant to the disposition of this case.

The facts are simple. While in the custody of Mr. McKinney's wife, the two year old child was raped by Mr. McKinney. Subsequently it was determined, and it appears to be undisputed, that in the course of the assault McKinney transmitted the disease of chlamydia to the child. McKinney pleaded guilty to a criminal charge of rape and was placed on probation.

In the underlying civil action, the petition prays for damages, which include severe physical and emotional distress and the transmission of chlamydia. After the civil action was filed, the McKinneys sought indemnity from their insurance company, Mid-Century, for any damages recovered in that action and insisted the insurer defend the claim, based on their homeowner's insurance policy. McKinney claimed he was unaware he had chlamydia prior to raping the child and, therefore, the insurance policy should provide...