Perreault v. Maine Bonding & Cas. Co.

• Decision Date: 16 January 1990
• Citation: 568 A.2d 1100
• Parties: Wilfred PERREAULT et al. v. MAINE BONDING & CASUALTY CO. et al.
• Court: Maine Supreme Court

Page 1100

568 A.2d 1100

Wilfred PERREAULT et al. v. MAINE BONDING & CASUALTY CO. et al.

Supreme Judicial Court of Maine.

Submitted on Briefs Jan. 3, 1990.

Decided Jan. 16, 1990.

Robert M. Knight, Daniel R. Warren, Bean, Jones & Warren, Scarborough, for plaintiffs.

Martica S. Douglas, Hewes, Douglas, Whiting & Quinn, Portland, for defendants.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, HORNBY and COLLINS, JJ.

McKUSICK, Chief Justice.

In this declaratory judgment action in Superior Court, Wilfred Perreault and his wife seek a declaration that their insurer under a homeowner's policy, Maine Bonding & Casualty Company, has the duty to defend Wilfred in a civil damages action brought by the young victim ¹ of unlawful sexual contact for which Wilfred had been convicted. ² The Superior Court (York County, Perkins, J.) granted Maine Bonding's motion for summary judgment on Perreault's complaint, finding that despite Perreault's argument that he did not intend to harm the child, the harm necessarily followed from the intentional sexual abuse and that the insurance policy's exclusion for "injury ... expected or intended by the insured" absolved Maine Bonding of any duty to defend. ³ Perreault appeals that decision, but we affirm.

In the underlying three-count complaint, the victim pleads offensive touching constituting a battery (causing psychological injury and emotional distress), intentional infliction of emotional distress, and actual or implied malice justifying punitive damages. There is no implied negligence or recklessness in any of these claims as pleaded. The battery alleged in the first count is by definition an intentional tort. See W. Prosser, Law of Torts § 10, at 35-36 (4th ed. 1971) ("Mere negligence, or even recklessness, which creates only a risk that the contact will result, may afford a distinct cause of action in itself, but under modern usage of the term is not enough for battery"). See also Restatement (Second) of Torts § 20, at 35 (1965). The second and third counts clearly allege that Perreault intended to harm the child.

Perreault relies heavily on Burns v. Middlesex Ins. Co., 558 A.2d 701 (Me.1989), and Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888 (Me.1981), in contending that because he did not subjectively intend the injury pleaded by the victim in her complaint, the "expected or intended injury" exclusion in his homeowner's policy does not apply. Under those cases we have held that if there is any possibility that the evidence at trial could establish that the tort in question was not intentional, the insurance companies have a duty to defend an insured accused of tortious conduct. See Burns, 558 A.2d at 702; Merrimack Mut. Fire Ins. Co. v. Brennan, 534 A.2d 353, 354 (Me.1987); Patrons-Oxford, 426 A.2d at 891.

The crime for which Perreault was convicted, however, cannot support a finding of injury other than the expected or intended injury excluded by the homeowner's policy. To be convicted of unlawful sexual contact, the actor must have perpetrated the contact "for the purpose of arousing or gratifying sexual desire." 17-A M.R.S.A. §§ 255, 251(1)(D) (Supp.1989). By definition, Perreault was not convicted of any inadvertent or negligent touching of the victim's genitals. He makes no such claim, nor could he in view of his criminal conviction. He, however, asserts that he did not "expect" or "intend" any injury to the young child as a result of the criminal sexual contact. We cannot, however, accept that any factfinder could rationally give any credit to Perreault's assertion. On any objective basis, anyone intentionally committing the offense of unlawful sexual contact against a child is bound to expect that psychological and emotional harm will result. Harm from the sexual abuse of a child is so highly likely to occur that the intent to commit the act inherently carries with it the intent to cause the resulting injury. We rule as a matter of law that any injury produced by a criminal act of sexual abuse against a child is "injury--expected or intended by the insured" within the meaning of the homeowner's exclusion.

Our decision today is consistent with the holding of the overwhelming majority of courts that "because injury always ensues, the offender is deemed to intend any injury resulting from the act as a matter of law." Whitt v. DeLeu, 707 F.Supp. 1011, 1015 (W.D.Wis.1989). ⁴ As the court in Whitt summarized,

a person who sexually manipulates a minor cannot expect his insurer to cover his misconduct and cannot obtain such coverage simply by saying that he did not mean any harm. The courts following the majority approach have concluded that sexual misconduct with a minor is so substantially certain to result in harm to the minor victim, that the perpetrator cannot be allowed to escape society's...