State Auto Mut. Ins. Co. v. McIntyre

• Decision Date: 27 January 1987
• Docket Number: Cv. No. 86-HM-5290-NW.
• Citation: 652 F. Supp. 1177
• Parties: STATE AUTO MUTUAL INSURANCE COMPANY, Plaintiff, v. Edward McINTYRE, Daisy McIntyre, and Dawn Marie Yoder, by and through her next friend Terry Buck, Defendants.
• Court: U.S. District Court — Northern District of Alabama

652 F. Supp. 1177

STATE AUTO MUTUAL INSURANCE COMPANY, Plaintiff, v. Edward McINTYRE, Daisy McIntyre, and Dawn Marie Yoder, by and through her next friend Terry Buck, Defendants.

Cv. No. 86-HM-5290-NW.

United States District Court, N.D. Alabama, Northwestern Division.

January 27, 1987.

David K. Howard, Almon, McAlister, Tuscumbia, Ala., Ashe, Baccus & Tanner, for plaintiff.

Jimmy Sandlin, Schuessler & Sandlin, and Cindy Sandlin Schuessler, Lindsey G. Mussleman, Holt, McKenzie, Holt & Mussleman, Florence, Ala., for defendants.

MEMORANDUM OF DECISION

HALTOM, District Judge.

This is an action for declaratory judgment brought by plaintiff State Automobile Mutual Insurance Company ("State Auto Mutual") against defendants Edward McIntyre and wife, Daisy McIntyre (insureds), and Dawn Marie Yoder, minor granddaughter of defendant Edward McIntyre, to determine coverage under a homeowner's liability insurance policy issued by State Auto Mutual to the McIntyres for assault and battery on two separate occasions in the form of nonviolent sexual abuse by the defendant grandfather of his minor granddaughter, Dawn Marie, during her 1983 and 1984 summer visitations at the McIntyre home in Lauderdale County, Alabama.¹

At all times herein relevant State Auto Mutual insured Edward McIntyre and wife, Daisy McIntyre, against personal liability for bodily injury or property damage in amount of $100,000 for each occurrence with express Section II exclusion applicable to Coverage E — Personal Liability and Coverage F — Medical Payments to Others which provided that Coverage E and Coverage F do not apply to bodily injury or property damage:

(a) which is expected or intended by the insured.

Defendant's Exhibit 1, Homeowners Policy Issued by State Automobile Mutual Insurance Company.

The plaintiff insurance company seeks a declaratory judgment in this case that the above referenced policy exclusion applies in the instant case so as to exclude coverage for Dawn Marie Yoder's claim for damages against her grandfather McIntyre arising out of his sexual abuse of her in the summers of 1983 and 1984. Counsel for the McIntyre and Yoder defendants assert that the bodily harm alleged to have been sustained by the minor child, Dawn Marie Yoder, as the result of her sexual abuse by her grandfather was neither expected or intended by him as one of the insured parties under the State Auto Mutual homeowner's policy, thus requiring the plaintiff insurer to provide coverage for the minor granddaughter's bodily injury claim against her grandfather for sexual abuse.

In an underlying tort action tried before a jury at the Federal Courthouse in Florence, Alabama this 11-year old minor on October 23, 1986 recovered judgment against her grandfather McIntyre in total amount of $125,000.00 compensatory damages in amount of $50,000.00 and punitive damages in amount of $75,000.00 for and on account of the sexual abuse referenced in the within declaratory judgment action.² Final judgment was duly entered by the Court in the tort action in favor of the minor plaintiff and against the defendant Edward McIntyre in conformity with the jury verdict. Defendant Edward McIntyre's motion for judgment notwithstanding the verdict and alternative motion for remittitur or new trial was denied by this Court without opinion on November 3, 1986. On November 28, 1986 Defendant Edward McIntyre gave Notice of Appeal to the United States Court of Appeals for the Eleventh Circuit. This appeal in the tort action is now pending.

Pursuant to Rule 52, Fed.R.Civ.P., the Court now finds the facts specially and states separately its conclusions of law thereon in this declaratory judgment action.

FINDINGS OF FACT

At all times pertinent in this litigation the minor child, Dawn Marie Yoder, lived with her mother, Terry Buck (Huffstutler), in the State of Indiana.³ Subsequent to her 1984 Alabama summer visit with her grandfather McIntyre the child was enrolled as a 4th grade student at Walt Disney School in South Bend, Indiana. On October 31 of that year a "Big Bear-Little Bear" play was presented at Dawn's school which depicted Little Bear's "private spot" being touched by a grown bear.⁴ Little Bear told a responsible adult bear of this episode. The thrust of the play was to encourage school children to report similar instances in which they had been sexually abused. Thus motivated, Dawn promptly told her teacher of her sexual abuse by her grandfather. The teacher instructed Dawn to tell one of the ladies in the play. This lady told the child to tell her mother. Dawn immediately told her mother of the Alabama summer visit incidents. The mother reported these alleged sexual molestations to the local Indiana police. The end result was an Alabama grand jury investigation and an indictment by the Lauderdale County, Alabama grand jury on March 4, 1985 charging the defendant Edward McIntyre with two Class C felony counts of sexual abuse in the first degree under 13A-6-66, Ala. Code 1975, as amended, and a third felony count of child abuse under the Alabama Child Abuse Act, 26-15-1, et seq., Ala. Code 1975, as amended (Count III), all involving Dawn Marie Yoder.

On April 17, 1985 the defendant grandfather, represented by counsel, entered a plea of not guilty and not guilty by reason of mental disease or defect to the charges in the indictment in the Lauderdale County Circuit Court. At that time counsel made known to the court that Mr. McIntyre was just recently released from the hospital and was under psychiatric treatment. The case was set for trial on May 28, 1985 with settlement conference on May 23, 1985 before Circuit Judge Ned Michael Suttle. For reasons not disclosed of record, these May 1985 trial and settlement conference settings were continued for approximately one month.

On June 20, 1985 defendant Edward McIntyre, represented by Attorneys Donald E. Holt and Lindsey Mussleman, appeared before Judge Suttle in the Lauderdale County Circuit Court in Florence, Alabama. The State was represented by two special prosecutors from the District Attorney's Office in Franklin County, Alabama. The court announced that there was a request by the defendant McIntyre to enter a guilty plea and that a plea bargain had been effected in the case. The indictment, which did not specify the period of time in which the offense was alleged to have occurred, was amended by consent. The State with of record consent by defendant and counsel moved for dismissal of Counts I and III of the indictment and further moved to amend Count II by specifying that the offense of sexual abuse in the first degree therein charged occurred in August 1984. The court thereupon proceeded to orally question defendant for the purpose of establishing of record that the defendant's proferred plea of guilty to Count II of the indictment was knowingly, voluntarily and understandingly entered. The Court observed of record in the presence and hearing of defendant McIntyre with counsel by his side that the plea agreement provided that the State would recommend a 6-year sentence and that there would be no further indictments in the future involving Dawn Marie Yoder, Amanda McIntyre or Deborah Jones.⁵ The defendant thereupon acknowledged of record his understanding of such plea agreement and his knowledge that he faced a maximum penalty of up to 6 years if his guilty plea was accepted.⁶ After further extensive litany required by Alabama guilty plea procedure, the court then inquired of record of the defendant whether he pled guilty or not to Count II of the indictment charging sexual abuse in the first degree. Counsel for McIntyre then apprised the court on the record that the defendant McIntyre had noted in his Request To Enter A Guilty Plea that he requested to plead guilty under the provisions of the Alford case,⁷ that defendant suffered a psychotic episode about the time he was charged and received electric shock treatments; that the medical evidence, if offered, would show that shock treatments affect memory somewhat; that he (counsel) had explained to defendant all of the evidence of which he (counsel) was aware that the State would offer against him if the case went to trial; that he (counsel) had advised defendant there was a substantial likelihood of conviction; that defendant had responded (to counsel) that due to his health condition and the shock treatments and psychosis he suffered he had no independent recollection of the acts charged against him; but that based on counsel's representations to him of what the evidence was and would be he felt he would be convicted and that it was to his best interests to enter a plea under the plea bargain agreement. Accordingly, stated counsel to the court, the defendant offered to enter his guilty plea under the provisions of the Alford case. Thereupon, defendant McIntyre formally proferred his plea of guilty to amended Count II of the indictment. The special prosecutors were then asked by the court to state of record the substance of the case against the defendant. In response Special Prosecutor McDowell informed the court that the substance of the case would be that on or about August of 1984 Dawn Yoder, then 9 years old, was at the house of the defendant Edward McIntyre and that at such time and place defendant fondled or touched her private parts, specifically, her vagina. Moreover, asserted the prosecutor, the State would offer evidence of statements made by defendant corroborating his commission of the criminal act charged against him and would attempt to offer other evidence of other sexual molestation by the defendant of Deborah Jones and Amanda McIntyre. Other intensive question and answer interrogation of defendant by the court followed, including a statement of record by Mr. McIntyre that he believed it would be a likelihood he would be convicted and that he was entering into the plea agreement because he thought it was in his best interest to take the plea agreement...