Western States Ins. Co. v. Bobo

• Decision Date: 29 December 1994
• Docket Number: No. 5-93-0191,5-93-0191
• Citation: 644 N.E.2d 486,268 Ill.App.3d 513
• Parties: , 205 Ill.Dec. 930 WESTERN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. Wallace BOBO, Defendant (J.R. and S.M., as mother and next friend of L.G., a minor child, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 486

644 N.E.2d 486

268 Ill.App.3d 513, 205 Ill.Dec. 930

WESTERN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. Wallace BOBO, Defendant (J.R. and S.M., as mother and next friend of L.G., a minor child, Defendants-Appellees).

No. 5-93-0191.

Appellate Court of Illinois,

Fifth District.

Dec. 29, 1994.

Rehearing Denied Jan. 25, 1995.

Rooks, Pitts & Poust, Chicago (Ian M. Sherman and Julie L. Keller, of counsel), for appellant.

Gene A. Turk, Jr., Womick and Associates, Chtd., Carbondale, for appellees.

Justice WELCH delivered the opinion of the court:

Plaintiff, Western States Insurance Company ("Western"), appeals from an order of the circuit court of Pulaski County denying summary judgment on its complaint for declaratory judgment. Western had sought a declaration that it was not obligated to provide coverage to or furnish a defense for its insured, defendant Wallace Bobo ("Bobo"), in a tort action alleging sexual abuse against Bobo. Western appeals from the trial court's order. We reverse.

Defendants, J.R. and S.M., as mother and next friend of L.G., a minor child, filed a complaint against Bobo in the circuit court of Pulaski County alleging that while J.R. and L.G. were minors Bobo sexually assaulted them by: (1) wrongfully touching their buttocks; (2) wrongfully touching their breasts; (3) wrongfully touching them "in and about" their vaginal areas; and (4) forcibly kissing them. Bobo tendered the defense of the case to Western, which had issued Bobo a homeowner's insurance policy. This policy contains the following intentional-acts exclusion:

"1. Coverage E--Personal Liability and Coverage F--Medical Payments to Others do not apply to bodily injury or property damage:

a. which is expected or intended by the insured, but this exclusion does not apply to any act committed by or at the direction of the insured not intended to cause serious bodily injury or property damage."

On August 11, 1992, Western filed an amended complaint for declaratory judgment seeking a finding that its homeowner's policy with Bobo did not provide coverage for the matters alleged in the suit filed against Bobo by J.R. and L.G. and for a further finding that Western was not obligated to furnish a defense to Bobo. On August 21, 1992, J.R. and L.G. filed their answer. On August 25, 1992, Western filed a motion for summary judgment and a memorandum in support of summary judgment based on the intentional-acts-exclusion provision. On September 24, 1992, J.R. and L.G. filed their response to Western's motion for summary judgment. In their response, J.R. and L.G. contended that a genuine issue of material fact existed as to whether Bobo intended to cause serious bodily injury to J.R. and L.G. On October 7, 1992, Western filed a reply memorandum in support of its motion for summary judgment. On October 14, 1992, J.R. and L.G. filed a response to Western's reply memorandum.

On February 18, 1993, a hearing on Western's motion for summary judgment was held. Following argument, the trial court denied Western's motion. In its order of March 8, 1993, the trial court held that a "genuine issue of material fact exists as to the question of whether [Bobo] intended to cause serious bodily injury when he allegedly [sexually abused J.R. and L.G.]." The trial court also certified this question of law to the appellate court:

"Whether under a homeowner's insurance policy excluding coverage for bodily injury for intentional acts with the language:

'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 * * * '

an intent to cause serious bodily injury should be inferred to the insured as a matter of law and public policy where it is alleged that the insured committed a battery against a minor by 'sexual abuse,' regardless of the insured's subjective intent."

On March 22, 1993, Western filed an application for leave to appeal to this court. On May 6, 1993, this court denied the application for leave to appeal. On October 6, 1993, the supreme court of Illinois entered a supervisory order remanding this case back to us with directions to vacate our order of May 6, 1993, denying the application for leave to appeal pursuant to Supreme Court Rule 308 and to enter an order allowing the appeal.

On appeal, Western contends that: (1) the trial court improperly found that an issue of material fact existed as to whether insurance coverage existed for alleged sexual abuse of minors under the intentional-acts exclusion of its homeowner's insurance policy; (2) the trial court improperly refused to infer an intention to cause serious bodily injury; and (3) as a matter of public policy individuals must not be able to obtain insurance to cover damages for sexual abuse to minors. Our resolution of the first two issues makes it unnecessary for us to address the third issue. We therefore reverse the order denying summary judgment.

Because this case involves the interpretation of an insurance contract, standard rules of contract construction are applicable. First, the interpretation of an insurance policy is a question of law, which this court may examine independently of the trial court's finding. (Mank v. West American Insurance Co. (1993), 249 Ill.App.3d 827, 830, 189 Ill.Dec. 347, 349, 620 N.E.2d 6, 8.) Second, unambiguous policies must be enforced as written. (Mank, 249 Ill.App.3d at 830, 189 Ill.Dec. at 349, 620 N.E.2d at 8.) Third, where an insurance policy contains ambiguous terms or language, it should be construed against the insurer and in favor of the insured. (Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill.App.3d 222, 225, 174 Ill.Dec. 662, 664-65, 599 N.E.2d 446, 448-49.) However, this general rule favoring the insured "must yield to the paramount rule of reasonable construction which guides all contract interpretations." (Travelers Insurance Cos. v. P.C. Quote, Inc. (1991), 211 Ill.App.3d 719, 724, 156 Ill.Dec. 138, 141, 570 N.E.2d 614, 617.) Fourth, although an ambiguity exists where a provision or term in the policy is susceptible of more than one reasonable interpretation (Mank, 249 Ill.App.3d at 830, 189 Ill.Dec. at 349, 620 N.E.2d at 8), a court may neither construe a policy against an insurer when no real ambiguity exists (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill.2d 486, 495, 86 Ill.Dec. 493, 497, 475 N.E.2d 872, 876) nor distort the policy to create an ambiguity. Gonzalez v. State Farm Mutual Automobile Insurance Co. (1993), 242 Ill.App.3d 758, 762, 183 Ill.Dec. 185, 188, 611 N.E.2d 38, 41; see also State Farm Mutual Automobile Insurance Co. v. Byrne (1987), 156 Ill.App.3d 1098, 1100, 109 Ill.Dec. 510, 512, 510 N.E.2d 131, 133 (rule requiring construction of ambiguous language in favor of insured "does not authorize the perversion of language or an exercise of inventive powers for the purpose of creating an ambiguity where none exists").

With the foregoing principles of insurance contract law in mind, we turn to address the precise issue before this court: whether an intent to cause serious bodily injury should be inferred as a matter of law in cases where it is alleged that the insured sexually abused a minor. The practical effect of such a rule is that an insurer will have no duty to defend or provide coverage to the insured. Bobo devotes his brief to reciting basic rules of insurance law and suggesting a definition for the word "serious" in the phrase "serious bodily injury" in an attempt to "give some meaning to the [word] serious." Bobo contends that the phrase "serious bodily injury" (as opposed to the standard "bodily injury" phrase usually contained in intentional-acts exclusion provisions) renders "the exclusions clause [in the instant case] ambiguous * * *." We reject the over-inflated importance that Bobo attaches to the word "serious." Instead, we agree with Western that the word "serious" must not be determinative of whether a defense (or coverage) for sexual abuse offenders should be provided.

Courts have identified three approaches to the question of whether the insured intended to cause injury and thus whether the intentional-acts exclusion applies in cases involving sexual abuse to minors. (See Horace Mann Insurance Co. v. Fore (M.D.Ala.1992), 785 F.Supp. 947, 952; Allstate Insurance Co. v. Roelfs (D.Alaska 1987), 698 F.Supp. 815, 820.) The first approach, and the one taken by the overwhelming majority of courts that have considered the issue, is the inferred-intent approach, by which intent to harm is inferred as a matter of law from the nature of the act of sexual abuse regardless of the standards that govern other types of cases. See, e.g., Westfield Insurance Co. v. Roberts (1993), 88 Ohio App.3d 532, 624 N.E.2d 343; State Farm Fire & Casualty Co. v. Davis (Ala.1993), 612 So.2d 458; American Family Mutual Insurance Co. v. Purdy (S.D.1992), 483 N.W.2d 197; Wiseman v. Leming (Ind.Ct.App.1991), 574 N.E.2d 327; Scudder v. Hanover Insurance Co. (1990), 201 Ill.App.3d 921, 147 Ill.Dec. 386, 559 N.E.2d 559; Worcester Insurance Co. v. Fells Acres Day School, Inc. (1990), 408 Mass. 393, 558 N.E.2d 958; see also Davis, 612 So.2d at 463-64 nn. 4-5 (citing additional cases adopting the majority inferred-intent approach); Purdy, 483 N.W.2d at 199 n. 3 (same).

The second approach, which appears to currently command no support in cases involving child sexual abuse, seeks the insured's actual, subjective intent to cause injury. (See State Auto Mutual Insurance Co. v. McIntyre (N.D.Ala.1987), 652 F.Supp. 1177; but see Davis, 612 So.2d at 461-62 (repudiating and rejecting McIntyre's embrace of the subjective-intent test as an erroneous interpretation/prediction of Alabama law); Fore, 785 F.Supp. at 949-54 (same).) The third approach is the objective reasonable person standard, which inquires whether a reasonable person would have foreseen that his action would cause harm. See ...