State Farm Fire and Cas. Co. v. Brown

• Decision Date: 27 April 1995
• Docket Number: CA-CV,No. 1,1
• Citation: 905 P.2d 527,183 Ariz. 518
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, Plaintiff-Appellee, Cross-Appellant, v. Jack BROWN, formerly listed as John Doe, individually, Defendant-Appellant, Cross-Appellee, and H.B.H., a single person, 1 and T.H., a minor child, Defendants-Appellants, Cross-Appellees. 93-0146.
• Court: Arizona Court of Appeals

Page 527

905 P.2d 527

183 Ariz. 518

STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, Plaintiff-Appellee, Cross-Appellant, v. Jack BROWN, formerly listed as John Doe, individually, Defendant-Appellant, Cross-Appellee, and H.B.H., a single person, ¹ and T.H., a minor child, Defendants-Appellants, Cross-Appellees.

No. 1 CA-CV 93-0146.

Court of Appeals of Arizona,

Division 1, Department D.

April 27, 1995.

Review Denied Nov. 21, 1995.

Stinson & Sever, P.A. by William G. Stinson, Jr., Dennis A. Sever, Phoenix, for plaintiff-appellee, cross-appellant.

Steven J. Wells & Associates by Timothy L. Moulton, Edwin R. Roberts, Tempe, for plaintiff-appellee, cross-appellant.

Renaud, Cook, Videan, Geiger & Drury, P.A. by William W. Drury, Jr., Charles A. Struble, Phoenix, for defendants-appellants, cross-appellees.

Broening, Oberg & Woods, P.C. by James B. Broening, Neal B. Thomas, Phoenix, for amicus curiae Farmers Ins.

OPINION

CONTRERAS, Judge.

State Farm Fire and Casualty Company ("State Farm") brought a declaratory judgment action against both its insureds, Jack Brown and his wife ("Brown"), and a child molestation victim and her mother. The child and her mother previously had filed a civil tort action against Brown for injuries suffered from molestations perpetrated by Brown. Brown held a State Farm homeowner's insurance policy, and State Farm defended Brown in the tort action under a reservation of rights provision. In the present declaratory judgment action, State Farm contended that Brown's acts of molestation were intentional acts and therefore excluded from insurance coverage.

After a bench trial in the superior court, the judge found that Brown did not act intentionally in molesting the victim and, thus, that State Farm's policy covered Brown's acts. State Farm filed a motion for new trial and for judgment in its favor. A pro tem judge granted the motion for new trial only. ² The victim and her mother appeal from the grant of a new trial; State Farm cross-appeals from the denial of judgment in its favor. Although we find no abuse of discretion in the grant of a new trial, we conclude that State Farm was entitled to judgment. Accordingly, we reverse the granting of the motion for new trial and remand for entry of judgment for State Farm.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in the summer of 1986 and continuing until March or April 1987, Jack Brown sexually molested a six-year old female child. The child and her mother sought damages in tort from Brown. See H.B.H. v. State Farm Fire and Cas. Co., 170 Ariz. 324, 823 P.2d 1332 (App.1991). In the present declaratory judgment action brought by State Farm, however, the sole issue is whether Brown's mental condition deprived him of the capacity to "intend" his actions under the test adopted in Globe Am. Cas. v. Lyons, 131 Ariz. 337, 641 P.2d 251 (App.1981). ³

In a bench trial to Judge Philip W. Marquardt, the evidence established that Brown became acquainted with the victim and her mother in 1981. He continued a friendship with the child and her mother over the next five or six years that permitted him to spend time alone with the child and to take her swimming and horseback riding. He also occasionally asked her to give him a massage or back rub and played a guessing game about the color of his or her underwear. ⁴ In private, he fondled the child, digitally penetrated her vagina, and had the child masturbate him; he also extracted promises of secrecy to hide his actions.

On the question of Brown's intent, Phillip W. Esplin, Ed.D., State Farm's expert, testified that although Brown was very bright and intelligent, he was also cunning and manipulative. He diagnosed Brown as a regressed pedophile who admitted that he was sexually attracted to the child victim and "likely had a sexual interest in age-inappropriate youngsters for quite some time." Dr. Esplin found the lack of sexual intimacy between Brown and his wife, that began six months after their marriage and continued over a number of years, relevant to determining the strength of his sexual interest in age appropriate individuals and significant in light of Brown's request that his wife wear clothing during sex and his desire to "play games ... [and] act like a small child" as a prelude to sexual activity. These acts suggested an interest in children "going back quite some time," according to Dr. Esplin.

In concluding that the molestations were intentional, rather than impulsive or opportunistic, Dr. Esplin considered the number of molestations (Brown admitted to either three or four while the child estimated as many as seventeen); that they occurred over an extended period, at different times and places, on occasions when Brown was able to be alone with the child; and that they were followed by pacts of secrecy. The pacts of secrecy also showed that however he might rationalize the acts to himself, Brown knew that his actions would be perceived by others as harmful.

Dr. Esplin stated that Brown "made a conscious, reasoned decision" to become sexually involved with the child and in order to accomplish that goal, "formulated and executed a series of complex acts ... that ... would require the capacity ... to reason, to judge potential outcome. And ... they would have been rational, logical and goal-oriented." He found no evidence from the psychological tests, observations of other individuals who were around Brown during the time of the molestations, or the manner in which the molestations took place that they could be classified as irrational impulses.

Dr. Esplin stated that stress from marital or financial difficulties might lessen Brown's self-control and act as a disinhibitant but that whatever stress Brown felt "by no means deprived him of [his reasoning]." Dr. Esplin also strongly stated that stress short of catastrophic levels does not destroy judgment and reasoning. In determining that Brown was not suffering from a mental derangement which deprived him of his capacity to govern his conduct with reason, Dr. Esplin pointed to Brown's pre-molestation actions of ingratiating himself, desensitizing the child to physical contact, finding or creating occasions to be alone with her, and forming the type of relationship which would lessen the probability of disclosure.

Dr. Esplin also testified that none of the psychological tests performed by Dr. Mazen indicated a significant thought disorder, psychosis, or organic brain syndrome which would affect Brown's ability to reason.

S. David Mazen, Ed.D., defendants' expert, had counseled Brown and his wife for marital problems between March and October 1986. He began treating Brown again in April 1987 after the molestations came to light. Dr. Mazen testified that he would have diagnosed Brown with a generalized anxiety disorder ⁵ during 1986 based on Brown's low self-esteem and his marital and employment difficulties. Dr. Mazen stated that when he returned for treatment in 1987, Brown's stress levels were even higher due to his fear of legal action and of loss of contact with his daughter after he and his wife divorced.

Dr. Mazen acknowledged that Brown did not suffer from any psychosis or organic brain disorder. He testified, nevertheless, that during the time Brown was molesting the child, he suffered a derangement of the intellect and a generalized anxiety disorder. The latter was a contributing factor in the deprivation of Brown's capacity to govern his conduct with reason and led him to act on an irrational impulse, thus satisfying the Globe test.

Dr. Mazen diagnosed Brown as a "regressed child molester," as defined by the DSM-III-R, but not a pedophile. ⁶ He testified that it was a generally accepted theory within the field of psychology that stress can precipitate a regressed child molester. He did not say, however, that stress caused Brown's actions, only that it contributed to his actions. Dr. Mazen stated that to compensate for the stress, Brown engaged in the molestations just as others might use to an excess sleep, drugs, alcohol, or sex; all of these behaviors, he stated, "are out of the conscious control of the individual."

He contended that the preseduction and grooming acts, as well as the molestations themselves, were out of Brown's control, although Brown was not out of control at all times. ⁷ Based on work with other sex offenders, he believed that Brown suffered lack of control just before and during each molestation. The pacts of secrecy showed that Brown knew what he had done and that it was wrong immediately after each act of molestation. He also stated that he assumed that Brown had sexual thoughts during the molestations but was uncertain that Brown had sexual thoughts about the child.

State Farm objected to much of Dr. Mazen's testimony on foundational grounds and moved to strike his testimony. It contended that no scientific evidence demonstrated that stress or generalized anxiety disorder either causes sexual deviancy or deprives one of the ability to govern one's conduct with reason. State Farm also objected that Dr. Mazen, not a forensic psychologist, lacked the expertise to determine Brown's state of mind at the time of the molestations and had failed to adequately investigate that issue before giving an opinion.

Judge Marquardt denied State Farm's motion to strike Mazen's testimony and ruled that State Farm's objections went more to weight than admissibility. At the conclusion of the trial, Judge Marquardt found that: the generalized anxiety disorder precipitated in Brown a condition of a regressed child molester who was deprived of the capacity to act rationally; the intentional acts exclusion did not apply; and thus, State Farm's policy covered the molestations.

Judge Udall granted State Farm's motion for a new trial. He found neither the law nor the evidence supported a finding that Brown suffered a "derangement of his intellect" which deprived him of the capacity to govern his conduct...