Peerless Ins. Co. v. Viegas

• Decision Date: 13 December 1995
• Docket Number: No. 93-624-A,93-624-A
• Citation: 667 A.2d 785
• Parties: PEERLESS INSURANCE CO. v. Sebastaio VIEGAS et al. ppeal.
• Court: Rhode Island Supreme Court

Page 785

667 A.2d 785

PEERLESS INSURANCE CO. v. Sebastaio VIEGAS et al.

No. 93-624-Appeal.

Supreme Court of Rhode Island.

Dec. 13, 1995.

David J. Szerlag, Warwick, for Plaintiff.

James P. Howe, Providence, Anthony S. Buglio, Warwick, for Defendant.

OPINION

BOURCIER, Justice.

This case is before the court on the appeal of the plaintiff, Peerless Insurance Co. (Peerless), from a Superior Court denial of its motion for summary judgment. It has long been established in Rhode Island that as a general rule only final judgments are appealable to this court. Murphy v. Charlie's Home Improvement Co., 117 R.I. 324, 327, 366 A.2d 809, 811 (1976); D'Angelo v. Ventura, 72 R.I. 120, 48 A.2d 247 (1946); McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912); 1 Kent, R.I. Civ. Prac. § 56.12 (1969). An order of the Superior Court denying summary judgment is not a final order and is not appealable.

Because of the particular importance of the issue raised by Peerless in its motion for summary judgment, we will, however, consider its appeal as a petition for certiorari and address the merits of the issue raised below. Meehan v. Meehan, 603 A.2d 333, 334 (R.I.1992). Cf. Murphy, 117 R.I. at 326-27, 366 A.2d at 811; Johnson v. Johnson, 111 R.I. 46, 49-50, 298 A.2d 795, 797 (1973) (certiorari treated as direct appeal).

I Case Travel--Facts

On December 5, 1986, Sebastaio Viegas (Viegas) pled guilty to two first-degree and three second-degree child molestation charges and one charge of the abominable and detestable crime against nature. His victim was Jane Doe, ¹ a minor child, and the grandniece of Viegas. Some of or all the sexual assaults took place between September 20, 1981, and September 20, 1986. During that period Viegas was insured under a homeowner's policy issued by Peerless.

In 1990 John and Mary Doe, the parents of Jane, filed a civil action against Viegas in the Providence County Superior Court (P.C. 90-4313). In that civil action, still pending, they seek damages resulting from the criminal acts of sexual abuse for which Viegas was convicted. They claim therein that Viegas breached his duty of care owed to Jane and negligently inflicted emotional distress upon her and that his actions were both negligent and wanton.

On September 25, 1991, Peerless commenced an independent civil action against Viegas and John and Mary Doe in the Providence County Superior Court (C.A.91-6533). In that action it sought declaratory relief in regard to whether it was required to defend Viegas in P.C. 90-4313 and/or indemnify Viegas against the claims made by the Does in that action.

On April 30, 1992, Peerless filed a motion for summary judgment on its complaint for declaratory relief. After hearing, on October 19, 1993, the motion calendar justice in the Superior Court, relying upon this court's previous opinions in Angelone v. Union Mutual Insurance Co. of Providence, 113 R.I. 230, 231, 319 A.2d 344, 345 (1974); Grenga v. National Surety Corp., 113 R.I. 45, 48, 317 A.2d 433, 435 (1974), and Employers' Fire Insurance Co. v. Beals, 103 R.I. 623, 631, 240 A.2d 397, 402 (1968), concluded that Peerless's duty to defend was mandated by the allegations of negligence contained in the C.A. 90-4313 complaint. We reverse.

Viegas's homeowner's policy that is in issue here provides coverage for personal liability to others "if a claim is made or a suit is brought against an insured [Viegas] for damages because of bodily injury caused by an occurrence." That homeowner's policy also provides that coverage for "personal liability and * * * medical payments to others" does not apply if that bodily injury or property damage was "expected or intended by the insured." (Emphasis added.) Peerless relies upon that specific liability exclusion provision in its policy of insurance with Viegas in asserting that it has no duty to defend or to indemnify Viegas. We agree.

II An Insured's Intent to Cause Harm--Inferred as a Matter of Law

Peerless asserts here that in child sexual assault cases, the perpetrator's intent (in this case, Viegas's) to cause harm should be inferred as a matter of law, thereby relieving Peerless of its duty to defend pursuant to the intentional injury by the insured exclusion provision in its policy of insurance. That contention presents an issue of first impression in this state and permits us to address the duty of an insurer to defend against liability claimed as a result of an insured's intentional sexual molestation of a child. In general, the duty to defend an insured in this jurisdiction is determined by applying the "pleadings test." Employers' Fire Insurance Co. v. Beals, 103 R.I. 623, 240 A.2d 397 (1968). See also Angelone v. Union Mutual Insurance Co. of Providence, 113 R.I. 230, 319 A.2d 344 (1974); Grenga v. National Surety Corp., 113 R.I. 45, 317 A.2d 433 (1974). That test requires the trial court to look at the allegations contained in the complaint, and "if the pleadings recite facts bringing the injury complained of within the coverage of the insurance policy, the insurer must defend irrespective of the insured's ultimate liability to the plaintiff." Beals, 103 R.I. at 632, 240 A.2d at 402. That duty, when blindly applied, may certainly result in the defense of "groundless, false or fraudulent" suits, but the insurer is duty bound nonetheless. Id. at 631, 240 A.2d at 402.

If that pleadings test were applied to the case at bar, Peerless would have a duty to defend in C.A. 90-4313 because the complaint in that case alleges bodily injury resulting from negligent conduct. That was the conclusion reached by the Superior Court motion hearing justice when he denied Peerless's motion for summary judgment despite his acknowledgment that plaintiffs would probably not ultimately recover against Peerless on Viegas's homeowner's policy since "it would be a highly unusual result if the victims of this incident can show that Mr. Viegas did not intent [sic ] to do harm." The Superior Court justice recognized the inextricable connection between an act of child sexual abuse and the resulting harm, but he denied Peerless's motion because he felt bound by our holdings in Beals, Grenga, and Angelone. It is precisely for that reason that we choose, at this time, to treat Peerless's appeal as a petition for writ of certiorari so as to reconsider our position with respect to the duty of an insurer to defend in cases involving child sexual abuse by an insured.

In Whitt v. DeLeu, 707 F.Supp. 1011 (W.D.Wis.1989), a child victim's parents brought suit against a school employee who allegedly sexually molested children entrusted to his care. The Federal District Court found that the intentional act exclusion provision in the applicable insurance policy relieved the insurer of its duty to defend against a damage claim resulting from the sexual molestation of minors, concluding that the insured's intent to harm would be inferred as a matter of law. There was no policy language in Whitt that specifically excluded coverage for any harm and damages resulting from child sexual assaults or caused by any other violations of penal statute. Notwithstanding, the Federal District Court held that there was no duty to defend, pursuant to a general intentional injury exclusion policy provision, because

"the alleged sexual contact is so substantially certain to result in some injury, or so inherently injurious, 'that the act is considered a criminal offense for which public policy precludes a claim of unintended consequences, that is, a claim that no harm was intended to result from the act.' " Id. at 1014-15 (quoting Horace Mann Insurance Co. v....