Rodriguez v. Williams, 52535-8

• Citation: 107 Wn.2d 381,729 P.2d 627
• Decision Date: 11 December 1986
• Docket Number: No. 52535-8,52535-8
• Parties: Daylette M. RODRIGUEZ, Petitioner, v. Darrell Wade WILLIAMS, Defendant, American States Insurance Company, Respondent.
• Court: United States State Supreme Court of Washington

Page 381

107 Wn.2d 381

729 P.2d 627

Daylette M. RODRIGUEZ, Petitioner, v. Darrell Wade WILLIAMS, Defendant, American States Insurance Company, Respondent.

No. 52535-8.

Supreme Court of Washington,

En Banc.

Dec. 11, 1986.

Gregory Boos, Bellingham, for petitioner

Keller, Rohrback, William Smart, Seattle, for respondent.

Winston & Cashatt, Robert Whaley, Feltman, Gebhardt, Eymann & Jones, John Glassman, Bryan Harnetiaux, Spokane, amici curiae for petitioner Washington Trial Lawyers Ass'n.

Reed, McClure, Moceri, Thonn & Moriarty, Karen Southworth Weaver, Seattle, amici curiae on behalf of State Farm Fire and Cas. Co.

Bertha Fitzer, Tacoma, amici curiae for respondent Washington Ass'n. of Defense Counsel.

DORE, Justice.

An incest victim is seeking recovery for damages from her stepfather's homeowner's insurance policy. We uphold the Court of Appeals decision affirming the trial court's summary judgment order denying coverage.

FACTS

On February 11, 1981, Darrell Williams had sexual intercourse with Daylette Rodriguez, his 15-year-old stepdaughter. He was later convicted of incest for this act. Rodriguez has sued Williams for damages resulting from this incident.

At the time of the incident, Williams had a homeowner's insurance policy with American States Insurance Company. This policy covered "damages because of personal injury," but contained an exclusion for personal injury:

which is expected or intended by the insured, but this exclusion does not apply to any act committed by or at Clerk's Papers, at 54. Rodriguez believed this exclusion did not apply and sought a declaration of coverage under the policy. American States denied coverage on the basis of the exclusion for intentional injuries, and moved for summary judgment.

the direction of the insured not intended to cause serious bodily injury ...

In response to the summary judgment motion Williams submitted an affidavit stating that "at no time did I, in any of my actions expect or intend to cause serious bodily injury ... to Daylette Rodriguez. I did not, in any way, intend or expect that she would be harmed by any of my actions." Clerk's Papers, at 25. Rodriguez also filed an affidavit by a clinical psychologist who had treated Williams for over a year. The psychologist found no indication "of any intent by [Williams] to cause physical or psychological harm to Daylette." Clerk's Papers, at 27. This affidavit was stricken from the record because the trial court believed it conclusory and inadmissible at trial. Rodriguez has challenged this decision.

Nevertheless, the trial court ruled that even if the psychologist's affidavit were considered, it "would not find it of sufficient credibility to change or affect its opinion herein." Clerk's Papers, at 5. We agree with this ruling. Williams' affidavit alone establishes a genuine question of fact as to his actual subjective intent, and the psychologist's affidavit does not alter the disposition of this case once Williams' actual intent is determined to be unresolvable at summary judgment. We therefore need not address the issue of whether the affidavit was admissible.

The trial court granted American States' motion for summary judgment, holding that the insurance policy did not cover incest irrespective of Williams' actual intent. Rodriguez appealed, but the Court of Appeals in a published opinion, affirmed the trial court's dismissal. Rodriguez v. Williams, 42 Wash.App. 633, 713 P.2d 135, review granted, 105 Wash.2d 1019 (1986).

COVERAGE

Williams' affidavit raises a factual question about his subjective intent at the time of the incident. For the purpose of this opinion, we will assume that Williams did not intend to harm his stepdaughter by his actions. We nevertheless rule that his actual subjective intent is irrelevant, and that the insurance policy did not provide coverage.

In this case, the homeowner's policy purports to cover all personal injury other than that specifically denied in the exclusion section of the policy. Clerk's Papers, at 89. In this regard, the policy differs from numerous cases cited to us by both parties in which coverage for personal injuries only applies to "accidental occurrences." See, e.g., Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 579 P.2d 1015 (1978); Western Nat'l Assur. Co. v. Hecker, 43 Wash.App. 816, 719 P.2d 954 (1986); Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn.1982). We believe this distinction is important. Were this an "accidental occurrence" policy, we would simply deny that coverage existed under the policy because the act of committing incest could not be described as an accidental occurrence. Instead, we must rely solely on the exclusion section of the policy.

As this case thus involves the interpretation of an exclusionary clause several rules of construction apply. First, the clause should be strictly construed against the insurer. Phil Schroeder, Inc. v. Royal Globe Ins. Co., 99 Wash.2d 65, 659 P.2d 509 (1983). Furthermore, the interpretation of the policy is a question of law and should be construed the way an average layman would interpret it. Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 549 P.2d 9 (1976). The relevant clause states that personal injury liability will not apply to injury "which is expected or intended by the insured, but this exclusion does not apply to any act committed by ... the insured not intended to cause serious bodily injury ..." Clerk's Papers, at 89.

Courts in other jurisdictions, when considering similar exclusionary clauses, have adopted a variety of approaches.

                Some courts have held that the subjective intent of the policyholder was not relevant in sexual abuse cases despite the plain language of the policy which indicates that this intent is significant.   In  CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984), the Arkansas Supreme Court rejected a policyholder's claim that he did not intend to harm his stepdaughter during numerous molestations occurring over a period of nearly 10 years.   Significantly, the court proposed an objective test for determining what is an "expected or intended" act.  "The test is what a plain ordinary person would expect and intend to result from a mature man's deliberately debauching his six-year-old stepdaughter ..." (Italics ours.)  McGinnis, at 93, 666 S.W.2d 689.   Similar results were reached, construing similar policies, though not in the context of sexual abuse, in  Mutual Serv.  Cas. Ins. Co. v. McGehee, --- Mont. ----, 711 P.2d 826 (1985),  Truck Ins. Exch. v. Pickering, 642 S.W.2d 113 (Mo.Ct.App.1982)
                

American States Insurance Company also claims that the first Washington case considering the terms of this type of insurance policy also adopted this objective standard. In Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 579 P.2d 1015 (1978) an 11-year-old boy intentionally set fire to a trash can, which accidentally burned down a school building. The boy's parents had homeowner's insurance covering personal liability for "accidents," with an exclusion for expected or intended injuries. The Court of Appeals denied coverage, principally because the policy covered "accidents", a term which does not include the deliberate act of setting fire to a trash can. Even though Unigard is an "accident" case, American States believes it relevant because the court held in dicta that the fire damage could be objectively described as "the expected or intended result of a clearly intentional act." Unigard, at 265, 579 P.2d 1015. This language implies that once the act causing the injury was intentional, if objectively the injury could be expected by the intentional act, then it would fit within the exclusion in the...