Whitt v. DeLeu

• Decision Date: 17 February 1989
• Docket Number: No. 87-C-324-C.,87-C-324-C.
• Parties: Dena Lynn WHITT, Tonya E. Spencer, Keri Kay Carratt, Christy Martell, Amanda Burden, Amy Crary, Andrea L. Cox, Judi Lynn Fischer, Raquel L. List, Sasha McLain, minors, by their Guardian ad Litem, Robert M. Whitney, Tammy L. Hawley, Thelma J. Bryan, Mary A. Munn, Victoria Ann Carratt, Dorothy Martell, Roxann McLain Van Landingham, Michael List and Victoria and James Burden, Plaintiffs, v. Richard R. DeLEU, Jr., in his individual capacity, Richard McGregory, Robert Harris, Arnold Lee, Michael Walls, Geneva Johnson, Harold Walters, James Pollard, William Nielsen, John or Jane Doe A, John or Jane Doe B, John or Jane Doe C, in their individual and official capacities, Richard Kranz, Mary McQuisten, Mrs. McMillen, in their individual capacities, Beloit School District, Wausau Insurance Companies, and The Continental Insurance Company, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

707 F. Supp. 1011

Dena Lynn WHITT, Tonya E. Spencer, Keri Kay Carratt, Christy Martell, Amanda Burden, Amy Crary, Andrea L. Cox, Judi Lynn Fischer, Raquel L. List, Sasha McLain, minors, by their Guardian ad Litem, Robert M. Whitney, Tammy L. Hawley, Thelma J. Bryan, Mary A. Munn, Victoria Ann Carratt, Dorothy Martell, Roxann McLain Van Landingham, Michael List and Victoria and James Burden, Plaintiffs, v. Richard R. DeLEU, Jr., in his individual capacity, Richard McGregory, Robert Harris, Arnold Lee, Michael Walls, Geneva Johnson, Harold Walters, James Pollard, William Nielsen, John or Jane Doe A, John or Jane Doe B, John or Jane Doe C, in their individual and official capacities, Richard Kranz, Mary McQuisten, Mrs. McMillen, in their individual capacities, Beloit School District, Wausau Insurance Companies, and The Continental Insurance Company, Defendants.

No. 87-C-324-C.

United States District Court, W.D. Wisconsin.

February 17, 1989.

Robert M. Whitney, Foley & Lardner, Madison, Wis., for Whitt, Spencer, K. Carratt, C. Martell, A. Burden, Crary, Cox, Fischer, R. List, Hawley, and McClain.

Daniel R. Einum, Madison, Wis., for T. Bryan, M. Munn, V. Carratt, D. Martell and Van Landingham.

Robert Gingras, Fox, Fox, Schaefer & Gingras, S.C., Madison, Wis., for V. Burden and M. List.

Timothy J. Yanacheck, Straub & Schuch, Madison, Wis., for Wausau Ins. Co.

Robert J. Ruth, Bolgrien, Ruth, Rentz, Mineau & Koepke, S.C., Beloit, Wis., for McGregory, Harris, Lee, Walls, Johnson, Walters, Pollard, Nielsen, Kranz, McQuisten, McMillen and Beloit School Dist.

Bradway A. Liddle, Jr., Boardman, Suhr, Curry & Field, Madison, Wis., for McGregory and Beloit School Dist., Harris, Lee, Walls, Johnson, Walters, Pollard, Nielsen, Kranz, McQuisten, McMillen.

John W. Markson, Madison, Wis., for DeLeu.

Daniel W. Stolper, Stafford, Rosenbaum, Rieser and Hansen, Madison, Wis., for Continental Ins. Co.

ORDER

CRABB, Chief Judge.

This is a civil action for monetary relief brought pursuant to 42 U.S.C. § 1983. Plaintiffs bring state claims of assault and battery against defendant DeLeu for his alleged sexual assaults of the minor plaintiffs, and both federal and state claims against defendant Beloit School District and its employees for their alleged reckless and negligent supervision of DeLeu. Plaintiffs also allege that defendant DeLeu inflicted emotional distress on the parents of the minor plaintiffs. Now before the court is defendant Continental Insurance Company's motion for summary judgment on the ground that the homeowner's insurance policy it had issued to defendant DeLeu excluded coverage for the sexual misconduct alleged by plaintiffs in this action.

I find that it is the law of Wisconsin, as well as the law of all but two of the other states whose courts have considered this issue, that acts of unlawful sexual contact with a minor are so certain to result in injury to that minor that the law will infer an intent to injure on behalf of the actor without regard to his subjective intent. Therefore, I conclude that the insurance policy's intentional acts exclusion precludes coverage for defendant DeLeu's alleged sexual misconduct and I will grant defendant Continental Insurance Company's motion for summary judgment.

Based on the parties' proposed findings of fact and for the purpose only of deciding this motion, I find that there is no genuine issue as to the following material facts.

Findings of Fact

The plaintiffs in this action have filed five separate complaints. The complaints are identical in regard to the allegations against defendant DeLeu.

Defendant DeLeu intentionally caused unpermitted and offensive sexual contact with each of the minor plaintiffs. DeLeu did not intend or expect to cause physical or psychological injury or harm to the minor plaintiffs.¹ DeLeu did not at any time believe that he would probably cause physical or psychological injury to the minor plaintiffs.

DeLeu also intentionally caused emotional distress to the parents of the minor plaintiffs.²

A supplementary incident report prepared by Detective Polglaze of the Beloit Police Department on February 13, 1986 during the investigation of charges of sexual assault of minor girls against defendant DeLeu states that:

We also found that their the children involved in the assaults involvement with Mr. DeLeu was rarely a single incident, in fact they were so numerous that the children cannot be specific as to actual dates and times that these incidents occurred. We also found out that the reason that some of the children were just hugged or kissed was because at that point they resisted Mr. DeLeu's advances. In other incidents, it would be a hug, a kiss and rubbing of the breasts and then Mr. DeLeu would meet resistance. In another incident he would kiss, hug, rub the girl's butt and then meet resistance. It was obvious after talking to these girls that Mr. DeLeu would only go as far as he could with each individual girl and then when they resisted, he would go no further ...

Even in the cases where Mr. DeLeu only hugged or kissed the girls, it is evident through the several interviews we conducted that his intentions were sexual gratification. I think this shows in the evidence of the 20 children interviewed. This is also indicated in our conversation with Mr. DeLeu where he stated that when he hugged one of the girls, that he was sexually aroused.

Defendant DeLeu did not engage in violence in the sexual contacts that are the bases of plaintiffs' claims.³ His actions did not include penetration. The facts of the sexual contacts were the subject of testimony in the preliminary hearing in the matter of State v. DeLeu, Nos. 86-CR-189 and 86-CR-237, commencing on April 7, 1986.

From February 16, 1984 to February 16, 1985, defendant Continental Insurance Company had in effect a homeowner's insurance policy that covered defendant DeLeu. These two policies contain identical language regarding exclusions:

SECTION II — EXCLUSIONS

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;

b. arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured.

From February 16, 1986 to February 16, 1987, defendant Continental Insurance Company had in effect a homeowner's policy that covered defendant DeLeu. The wording of the exclusions in this policy is slightly different from the wording in the previous policies:

B. RESTRICTIONS ON YOUR LIABILITY COVERAGES

1. Intentional Acts. We do not cover bodily injury or property damage expected or intentionally caused by a Covered Person.

There was no homeowner's policy issued to defendant DeLeu by defendant Continental Insurance Company in effect after February 16, 1987.

Defendant Continental Insurance Company is not able to verify that it had a homeowner's policy in effect that covered defendant DeLeu prior to February 16, 1984. Its records showing that it paid defendant DeLeu a theft loss in 1982 pursuant to a Continental Insurance Company homeowner's policy suggests that it did.

Any homeowner's policy issued by defendant Continental Insurance Company to defendant DeLeu from 1982 to 1984 would contain the same exclusions as contained in the homeowner's policies in effect between February 16, 1984 and February 16, 1986.

Defendant Continental Insurance Company has no records that indicate that it issued a homeowner's policy to defendant DeLeu prior to 1982.

Opinion

Defendant Continental Insurance Company contends that the "intentional injury" exclusions in the homeowner's policies it issued defendant DeLeu preclude coverage for any damages caused by DeLeu's unlawful sexual contacts with the minor plaintiffs in this action, because DeLeu's intent to inflict injury on the minor plaintiffs is inferred as a matter of law from his intentional commitment of those acts. Plaintiffs agree that defendant DeLeu intended to commit the acts of unlawful sexual contact but argue that defendant DeLeu did not intend to cause the minor plaintiffs any harm. Plaintiffs also maintain that the intent to harm is a question of fact that cannot be decided on a motion for summary judgment.

The Supreme Court for the State of Wisconsin has ruled that an "intentional injury" exclusion clause, like the clauses in the instant case, is not ambiguous, that it applies only to injuries intentionally caused, and that it applies even where the injury that does result is different from the injury that was intended. Pachucki v. Republic Insurance Company, 89 Wis.2d 703, 708, 712-714, 278 N.W.2d 898 (1979). In discussing the intent that must be proven for the exclusion to apply, the court quoted from W. Prosser, Handbook on the Law of Torts, § 8 at 31-32 (4th ed. 1971):

It is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. ... Where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.

Pachucki, 89 Wis.2d at 711, 278 N.W.2d 898.

In Pachucki, the court held that an actor's intent to inflict injury may be inferred as a matter of fact from the nature of the intentional acts where the acts are substantially certain to cause harm, without regard to the actor's claimed intent. Id. at 712-714, 278 N.W.2d 898. (emphasis added). In K.A.G. v. Stanford, 434 N.W.2d 790 (Wis.Ct.App.1988), the Wisconsin Court of Appeals applied the objective rule in Pachucki to acts of sexual misconduct against a minor and extended the rule to infer the intent to injure as a matter of law from the commission of such sexual misconduct, without regard to the actor's subjective intent. K.A.G. at 793.

Courts in fifteen other states have considered this issue. The courts...