United Services Auto. Ass'n v. Marburg

• Decision Date: 05 August 1997
• Docket Number: No. 16387,16387
• Citation: 698 A.2d 914,46 Conn.App. 99
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION v. Bonita L.C. MARBURG et al.
• Court: Connecticut Court of Appeals

Page 914

698 A.2d 914

46 Conn.App. 99

UNITED SERVICES AUTOMOBILE ASSOCIATION v. Bonita L.C. MARBURG et al.

No. 16387.

Appellate Court of Connecticut.

Argued May 1, 1997.

Decided Aug. 5, 1997.

Robert B. Bellitto, Fairfield, for appellants (defendant Margaret A. Fabrizio et al.).

Edmund T. Curran, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and LANDAU and SHEA, JJ.

DUPONT, Chief Judge.

This case arose when the plaintiff, United Services Automobile Association (USAA), sought a declaratory judgment ¹ that, under its contract of homeowners insurance with the defendant Bonita L.C. Marburg, it had no duty either to defend or to indemnify Marburg for any judgment rendered against her in a lawsuit brought by a child and his mother, who are also defendants in this action.

The child and his mother instituted an action against Marburg in August, 1993, alleging that in 1991, when the child was eleven and twelve years old, Marburg had sexually abused him on at least seventy-three occasions during tutoring sessions. ² The Stratford school system had referred the child to Marburg for such tutoring. The child and his mother claimed that, as a result of the sexual abuse, which involved intercourse, sodomy and fellatio, the child suffered serious psychological and emotional injury. He and his mother also incurred substantial expenses for medical and psychological care as a result.

Counts one, three and five of the amended complaint of the child and his mother against Marburg contained allegations by the child of sexual misconduct, sounding, respectively, in assault and battery, negligence, and negligent infliction of emotional distress. Counts two, four and six mirrored one, three and five, but were brought by the child's mother and sought damages for expenses incurred. Count seven asked for punitive damages because of the egregious and unconscionable nature of the sexual misconduct. The eighth count alleged a fraudulent transfer of assets to Marburg's husband, John Marburg, also named as a defendant.

On November 28, 1995, the child and his mother filed a substituted complaint against Marburg. Although alleging the same sexual misconduct, it eliminated counts one, two, seven and eight, leaving only the counts alleging negligent misconduct.

Within two weeks of filing the substituted complaint, the child and his mother and Marburg stipulated to judgment for the child and his mother. They also drafted a separate written covenant, in which the child and his mother agreed that if Marburg gave full cooperation to the child and his mother in both cases, the child and his mother would not seek to satisfy any judgment rendered against Marburg from any real, personal or other property owned by her.

At the time of the alleged events, Marburg and her husband were the named insureds under a homeowners insurance policy issued by USAA. Although the policy provided coverage for "damages because of bodily injury or property damage," it excluded coverage for damages resulting from "bodily injury ... which is expected or intended by the insured [or] arising out of or in connection with a business engaged in by an insured."

USAA sought summary judgment on the portion of its declaratory judgment claim in which it sought a declaration that it owed no duty to indemnify Marburg against the claims of the child and his mother. ³ It argued that no material issue of fact existed as to whether all of the damages of the child and his mother fell within the "expected-or-intended-injury" exclusion and the "business-pursuits" exclusion, and, thus, the damages would be excluded from coverage as a matter of law. ⁴ The child and his mother opposed the motion, stating that there were material issues of fact regarding Marburg's intent to harm the child and regarding the business pursuits exception. Specifically, they alleged that Marburg suffered from a mental disease or defect that prevented her from forming an intent to cause the child harm, and that at least some of Marburg's sexual misconduct did not occur during her tutoring sessions with the child. The plaintiff claims that there is no coverage because Marburg's acts were intentional and because the damages did arise out of or in connection with business pursuits. The trial court granted the plaintiff's motion for summary judgment.

The standard of review for summary judgment is well established. "Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 222-23, 688 A.2d 349 (1997).

Many cases from other jurisdictions have held, under a doctrine of presumption of intent, that acts of sexual molestation of minors are so heinous that intent to cause harm is presumed as a matter of law. See annot., 31 A.L.R.4th 957 § 5(b). The trial court in this case limited the doctrine of presumption of intent to cause harm to minors to situations where the actor is aware of the minority of the victim. The court specifically found that Marburg possessed the requisite intent because Marburg was aware of the child's age.

The court reasoned that Marburg is presumed to know the law, and, therefore, she knew that the sexual acts were in violation of the criminal laws that prohibit such activities with minors. This presumption supports the conclusion that when Marburg engaged in the misconduct with knowledge of the victim's age, she intended to cause her victim injury, as a matter of law. The defendants claim that the presumption is rebuttable, and that they have sufficiently raised an issue of fact that could rebut the presumption that Marburg intended to cause harm. Marburg claims that she suffered from a mental illness that made her incapable of forming an such intent. ⁵

An insured's conduct can be considered unintentional in situations such as those here only if the insured can produce evidence to show that she did not intend to cause the damage. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 205-206, 663 A.2d 1001 (1995). If the insured cannot show that her behavior was unintentional, the presumption of intent remains intact, and the exclusion of the homeowners policy precludes coverage. Id.

"It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103, 491 A.2d 368 (1985); are separate and mutually exclusive. 'The distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences.' W. Prosser & W. Keeton, Torts (5th Ed.1984) p. 33. Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. 'As Holmes observed, even a dog knows the difference between being tripped over and being kicked.' Id." American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 775-76, 607 A.2d 418 (1992).

"In its most common usage, 'intent' involves '(1) ... a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act.' ... [W. Prosser & W. Keeton, supra, p. 34.] Also, the intentional state of mind must exist when the act occurs. Id. Thus, intentional conduct 'extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.' Id., p. 35. Furthermore, '[i]t is not essential that the precise injury which was done be the one intended.' Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). 'Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids.' W. Prosser & W. Keeton, supra, p. 36. Our case law accords with these principles. See, e.g., Mingachos v. CBS, Inc., supra; Alteiri v. Colasso, supra." (Emphasis in original.) Id., at 776.

The defendants rely on the case of Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn.App. 94, 644 A.2d 933 (1994), rev'd on other grounds, 235 Conn. 185, 663 A.2d 1001 (1995), ⁶ to support their claim that Marburg's mental disorder prevented her from controlling her actions and, therefore, made her incapable of forming an intent to injure. In Home Ins., we held that in order to determine whether an insured's acts were intentional for purposes of a policy's intentional act exclusion clause, we must consider "whether, because of mental illness or defect, the insured did not understand the nature or wrongfulness of [her] conduct, or was deprived of the capacity to control [her] actions regardless of [her] understanding of the nature or wrongfulness of [her] action." Id., at 106-107, 644 A.2d 933; ⁷ see State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324, 331 (Minn.1991).

We now examine whether...