State Farm Fire & Cas. Co. v. D.T.S., No. 62751

Citation867 S.W.2d 642
Decision Date23 November 1993
Docket NumberNo. 62751
PartiesSTATE FARM FIRE & CASUALTY CO., Plaintiff/Respondent, v. D.T.S., Jr., D.T.S., Sr., E.A.S., and L.K., Defendants/Appellants.
CourtCourt of Appeal of Missouri (US)

Robert F. Summers, Andrea L. Weiss, Leonard J. Frankel, St. Louis, for defendants, appellants.

Sam P. Rynearson, Martin J. Buckley, St. Louis, for plaintiff, respondent.

CARL R. GAERTNER, Judge.

Defendants, D.T.S., Jr., D.T.S., Sr., E.A.S., and L.K., appeal from a declaratory judgment in favor of the plaintiff, State Farm Fire & Casualty Company. The trial court ruled that L.K.'s homeowners insurance policy, issued by State Farm, did not cover L.K.'s liability to D.T.S., Jr., or his parents. We affirm.

L.K. was a fifth grade teacher in the Parkway School District during the 1987/1988 school year. D.T.S., Jr., was one of her students through the course of that year. During the summer after the school year ended, D.T.S., Jr., frequently telephoned L.K. At first, these conversations centered around D.T.S., Jr.'s family problems but then became sexual in nature. In August of 1988, L.K. brought D.T.S., Jr., to her home while both her children and her husband were away. While in the home, D.T.S., Jr., and L.K. kissed and fondled each other. She performed an act of fellatio, and they unsuccessfully attempted sexual intercourse. In October, L.K. brought D.T.S., Jr., to her parents' home while they were away on vacation. L.K. and D.T.S., Jr., twice engaged in sexual intercourse that afternoon. Following their discovery of these incidents, D.T.S., Sr., and E.A.S., along with their son, brought a suit seeking money damages against L.K. State Farm brought an action for declaratory judgment to determine if L.K.'s homeowners policy covered any liability which L.K. might incur from these incidents.

L.K.'s homeowners policy contained the following pertinent language:

COVERAGE L--PERSONAL

LIABILITY

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:

1. pay up to our limit of liability for the damages ...; and

2. provide a defense ...

The policy included a section of definitions. The policy defined "occurrence" as an accident. Specifically, it stated:

7. "occurrence", when used in Section II of this policy, means an accident, including exposure to conditions, which results in:

a. bodily injury; or

b. property damage

The policy excluded coverage for damage which the insured "intended or expected" and for damages resulting from the insured's "willful and malicious acts."

In its pleadings, State Farm argued any harm to D.T.S., Jr., was not covered under the homeowners policy because such harm was not a result of an accident and did not constitute bodily injury. State Farm also asserted that the policy excluded liability arising from these incidents because any injury was intended or expected. Finally, State Farm maintained that harm to D.T.S., Jr., resulted from L.K.'s willful and malicious actions.

At trial, evidence was adduced from several different psychiatrists and psychologists. L.K. submitted evidence from four experts. Although they disagreed on the exact diagnosis, they all agreed L.K. suffered from a psychological disorder, could not control her actions, and did not intend or expect to harm D.T.S., Jr. State Farm's expert, Dr. Wayne Stillings, testified that L.K. did not suffer from a psychological disorder. He believed L.K. was capable but unwilling to control her behavior. He further testified that L.K. realized harm to D.T.S., Jr., could be expected to result from her relationship with him.

The trial court ruled that the defendants failed to prove harm to D.T.S., Jr., fell within the policy's coverage. The defendants did not establish that D.T.S., Jr.'s damages resulted from an accident. The defendants did not show that D.T.S., Jr.'s injuries included bodily injury. The trial court also held L.K.'s intent to injure D.T.S., Jr., was inferred as a matter of law because she engaged in sexual relations with a minor. The trial court found that the law would infer this intent regardless of L.K.'s subjective intent or mental incapacity. Therefore, the policy specifically excluded coverage for this incident.

Defendants, the parties seeking to establish coverage under the insurance policy, have the burden of proving that the claim is within the coverage afforded by the policy. Truck Insurance Exchange v. Heman, 800 S.W.2d 2, 3-4 (Mo.App.1990). The burden of proving coverage remains on those who are seeking coverage even though they are denominated as defendants in a declaratory judgment action. Auto-Owners Insurance Company v. McGaugh, 617 S.W.2d 436, 444 (Mo.App.1981). On the other hand, an insurance company seeking to avoid coverage by reason of a policy exclusion has the burden of proving the applicability of the exclusion. Truck Insurance Exchange v. Heman, 800 S.W.2d at 4. The trial court found that defendants had failed to sustain their burden of proving coverage and that State Farm had proved the applicability of the exclusion. We agree.

Specifically, the trial court found that defendants failed to prove that D.T.S., Jr., sustained any bodily injury caused by accident. D.T.S., Jr., "clearly and unequivocally" denied that he had sustained any bodily injury and no evidence to the contrary was introduced. Whether the policy language providing coverage for "bodily injury", which is defined in the policy as "bodily harm, sickness, or disease", could be contorted to include the psychological and emotional harm inevitably inflicted upon a twelve-year old boy as a result of the protracted sexual experiences to which he was subjected by his thirty-nine year old school teacher need not be decided in this case. Rather, the dispositive issue is the failure of defendants to prove that whatever harm may have been sustained was the result of an accident.

In order to establish coverage under the policy, defendants had the burden of proving that bodily injury resulted from an occurrence. "Occurrence" is defined as an accident. This burden could be satisfied by proof that L.K. did not consciously or deliberately intend to act as she did or that she did not intend to inflict harm upon D.T.S., Jr. White v. Smith, 440 S.W.2d 497, 507 (Mo.App.1969). Conversely, in order to sustain its burden of proof regarding the applicability of the policy exclusion of damages which the insured "intended or expected", State Farm was required to prove both that L.K. acted intentionally and that she intended or expected injury to result. American Family Mutual Insurance Company v. Pacchetti, 808 S.W.2d 369,...

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