Zordan By and Through Zordan v. Page, 85-2055

Decision Date19 December 1986
Docket NumberNo. 85-2055,85-2055
Citation500 So.2d 608,11 Fla. L. Weekly 2668
Parties11 Fla. L. Weekly 2668, 12 Fla. L. Weekly 225 Nicole N. ZORDAN, a minor By and Through her parents and natural guardians, Richard B. ZORDAN and Charmain Zordan, and Richard B. Zordan and Charmain Zordan, individually, Appellants, v. Gerald "Bud" PAGE, South Carolina Insurance Company and Atlas Assurance Company of America, Appellees.
CourtFlorida District Court of Appeals

Roy L. Glass, St. Petersburg, for appellants.

Gary W. Sawyer and Daniel F. Pilka of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Tampa, for appellees.

LEHAN, Judge.

This is an appeal by the plaintiff from a summary judgment denying insurance coverage in a personal injury suit. The suit is against the insured and his two liability insurers for damages from the insured's alleged sexual fondling of a child. Presented to us and argued by the insurers and the plaintiff as the issue on appeal is whether a policy exclusion for intentional injuries should be held to have applied so as to exclude insurance coverage for the insured's intentional injurious acts of sexual fondling if there is no evidence that the insured subjectively intended injury other than evidence that he intended the acts. The trial court held that the exclusion would apply. We reverse and remand for further proceedings without deciding that issue.

The suit seeks damages for alleged emotional injuries caused by the insured's alleged sexual fondling of his stepgranddaughter who was age fourteen when the complaint was filed. The complaint alleges generally that the insured "did, on sundry occasions, handle, fondle, and touch ... [the child] in a lewd, lascivious, or indecent manner." Portions of the record separate from the complaint show that the claims include the insured at various times over a period of years having allegedly fondled the child by placing his hands under her clothing and touching and fondling her private parts. There appears to be no claim of either penetration or violence or threat thereof. The complaint alleges that injuries were not intended or expected by him. The answer denies that any fondling occurred. The insured's deposition denies that he ever touched her in an improper manner or ever intentionally hurt her.

The trial court's decision that there is no insurance coverage was reached on summary judgment. No findings or reasoning is contained in the summary judgment order. In support of their motion for summary judgment, the insurers cited language in the insurance policies providing that there would be no coverage for liability of the insured arising from injuries which were intended or expected by him. 1 They argued that that language should apply because the insured's intent to injure should be presumed from his intent to act.

The plaintiff argues that there is an unresolved fact issue as to whether the insured subjectively intended or expected the alleged injuries. It is argued that the complaint alleges that he did not, there is no evidence otherwise, and that in this insurance coverage context it is not presumed from the intent to act that there was intent to injure.

We agree that there are unresolved fact issues. The law, as explained below, requires a determination of the insured's subjective intent.

This appeal, it should be kept in mind, involves only the construction of the wording of insurance contracts drafted by insurers. The principle is established in Florida that "even though the act which causes an injury was intentionally done, liability coverage will not be excluded under an intentional injury exclusion clause unless the insured acted with the specific intent to cause the injury." Employers Commercial Union Insurance Company of America v. Kottmeier, 323 So.2d 605, 607 (Fla. 2d DCA 1975) (emphasis added). See Annotation: Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured, 31 ALR 4th 957, 983-88. Specific intent is in contrast to general intent. While a person may have the general intent to injure someone from an act which he intended to commit because his general intent to cause the natural result of that act may be presumed whether or not he subjectively intended to inflict the injury, in general he may not be found to have had the specific intent to cause that result unless he can be found to have subjectively intended the result. See Linehan v. State, 442 So.2d 244, 247 (Fla. 2d DCA 1983), aff'd, 476 So.2d 1262 (Fla.1985). The foregoing principle was also followed in this court's holding in Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla. 2d DCA 1974), that injuries which naturally and foreseeably flow from intended conduct by an insured are not for that reason "expected" and thus excluded from coverage by language in a policy similar to that in the policies in the case at hand. See also Greater Palm Beach Symphony Ass'n v. Hughes, 441 So.2d 1171 (Fla. 4th DCA 1983); Phoenix Insurance Co. v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974); Cloud v. Shelby Mutual Insurance Co., 248 So.2d 217 (Fla. 3d DCA 1971). This is the majority rule. Allstate Insurance Co. v. Steinemer, 723 F.2d 873, 875 (11th Cir.1984). Cf. Arkwright-Boston Manufacturers Mutual Insurance Co. v. Dunkel, 363 So.2d 190 (Fla. 3d DCA 1978), and George v. Stone, 260 So.2d 259 (Fla. 4th DCA 1972) (a tort-feasor's insanity at the time he inflicted injury may preclude application of a liability insurance policy provision excluding an intentionally caused injury).

At this stage of the proceeding there has been no determination of the subjective intent of the insured. Nor has there been any resolution of other factual issues relevant to determining the insured's intent, such as, what acts, if any, occurred, the nature and surrounding circumstances of the acts, and what injuries, if any, resulted. In fact, there is no testimony in the record other than some excerpts from the insured's deposition.

Plaintiff cites MacKinnon v. Hanover Insurance Co., 471 A.2d 1166 (N.H.1984), in support of the argument that insurance coverage should not be excluded under the language of the policy because the insured's intent to injure should not be inferred simply from his intent to act. In MacKinnon the New Hampshire Supreme Court, rejecting contrary public policy arguments, held that an insurance policy exclusion of expected or intended injuries did not necessarily bar coverage for injuries from defendant's sexual molestation of a child. MacKinnon concluded that intent to injure cannot be inferred for such a purpose simply from intentional sexual molestation and from any reasoning that injury is nearly certain to arise therefrom. The rationale in that case was that "the policy language could have provided for this expressly, but did not." 471 A.2d at 1168. See also Powell v. New York Life Insurance Co., 120 So.2d 33, 35 (Fla. 2d DCA 1960) ("The right of an insurance company to restrict coverage through exceptions or limitations [for assault] is recognized by the courts.") There is the additional argument that if there were any doubt, it is well settled that doubtful insurance coverage questions must be resolved against the insurer. Stuyvesant Insurance Co. v. Butler, 314 So.2d 567, 570 (Fla.1975).

As to the argument made on behalf of the insurers that an insurance company should not be expected to have anticipated and specifically provided for noncoverage of this type of reprehensible occurrence, it may be pointed out that there has been notice of the potential for this type of case if not from the established Florida law referred to above, from MacKinnon and earlier cases from other jurisdictions discussed below. Issue may also be taken with the proposition contained in the dissenting opinion in this case which, citing Allstate Insurance Co. v. Kim W., 206 Cal.Rptr. 609, 160 Cal.App.3d 326 (1984), seems to be that the fact that the legislature has denominated certain conduct directed at another person as criminal requires a judicial conclusion that compensable injury results therefrom. No Florida authority is cited for that proposition which would not seem consistent with Kottmeier and Thomas and with an underlying rationale behind the criminal law which, in contrast to that behind tort law, generally is to punish rather than to compensate individuals for damages. As MacKinnon says, "Public policy applicable to the criminal law does not automatically apply in a civil context...." 471 A.2d at 1169.

The insurers cite cases in other jurisdictions involving liability insurance coverage for sexual acts directed against minors which contain language saying that the intent to inflict injury can be inferred from the intent to commit the acts. See Linebaugh v. Berdish, 376 N.W.2d 400 (Mich.App.1985); Lehmann v. Metzger, 355 N.W.2d 425 (Minn.1984), and other Minnesota cases cited therein; Kim; CNA Insurance Co. v. McGinnis, 666 S.W.2d 689 (Ark.1984). In apparent contrast to the claimed facts of the case before us, those cases appear to have involved either penetration or violence or threat thereof. (In MacKinnon the acts were described as "alleged acts of assault in the form of sexual abuse." 471 A.2d at 1167.) Linebaugh specifically noted that there had been sexual penetration in that case and limited the language of its holding to that circumstance. 376 N.W.2d at 405. In McGinnis the insured had had "sexual relations" with his stepdaughter almost daily from the time she was six years old until she was sixteen. 666 S.W.2d at 690. In Kim the insured admitted "assaulting and battering" a young girl and did not assert that he had had no intent to harm her. 206 Cal.Rptr. at 611, 614. The Lehmann opinion does not describe the "sexual assaults" against a twelve year old girl which were involved in that case. 355 N.W.2d at 426.

We are not taking issue with the holdings of the out of state cases...

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