Allstate Insurance Co. v. Mugavero , 166 A.D.2d 474 ( 1990 )

In an action for a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants Edward Mugavero and Ann Mugavero in an action brought against them by the defendants Ellen B., individually and on behalf of the infant defendants Christian J.B. and Teresa C.B., the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered February 1, 1989, as denied its cross motion for summary judgment and granted that branch of the motion by the defendants Edward Mugavero and Ann Mugavero which was for summary judgment declaring that the plaintiff was obligated to defend them in the aforenoted action.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

The defendant Ellen B. commenced the underlying action herein on behalf of herself and her two infant children against the defendants Edward Mugavero and Ann Mugavero. The gravamen of that complaint was based upon the allegation that Edward had assaulted, sodomized and sexually abused the children while his wife, Ann was baby-sitting them. However, in addition to alleging intentional conduct on the part of Edward, the complaint alternatively asserted claims against Edward based on allegations that his acts were negligently committed, or were intentionally committed, but "without intending the resultant serious injuries thereby sustained” by the children; and further alleged that Ann was negligent in her supervision of the children.

The Mugaveros forwarded the summons and complaint to the plaintiff Allstate Insurance Company (hereinafter Allstate), which had issued them a homeowner’s policy, on the ground that Allstate was obligated to defend and indemnify them in the underlying action.

Allstate thereafter commenced this declaratory judgment action, claiming that it had no duty to defend or indemnify either Mugavero, relying upon a provision in the homeowner’s policy, which precludes coverage to any named insured for "bodily injury * * * intentionally caused by an insured person”. On the parties’ motion and cross motion for summary relief, the Supreme Court, in relevant part, declared that Allstate was required to defend the Mugaveros with regard to the underlying action (see, Allstate Ins. Co. v Mugavero, 142 Misc 2d 361, 364-365). We now affirm.

It is well-settled law that "[t]he duty to defend insureds * * * is derived from the allegations of the complaint and the terms of the policy. If the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend (Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 669-670). Moreover, when an exclusion clause is relied upon to deny coverage, the insurer has the burden of demonstrating that the 'allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation’ (International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325)” (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73-74).

We are cognizant of the horrific nature of sexual molestation of children. Nevertheless, that factor is not relevant nor should it govern our decision concerning insurance coverage in this case. It is not disputed by our dissenting colleague that the complaint in the underlying action herein asserts claims based upon the alleged negligence of the defendants, which are not excluded by any of the provisions in the Allstate policy. In analogous cases involving, in relevant part, the alleged sexual abuse of an adult, the courts have not looked beyond the allegations in the complaint in determining whether the insurance company which had issued a homeowner’s policy had a duty to defend its insured (see, State Farm Fire & Cas. Co. v Irene S., 138 AD2d 589, 591; New York Cent. Mut. Fire Ins. Co. v Heidelmark, 108 AD2d 1093). Allstate nevertheless claims that Edward Mugavero did not and could not have negligently committed the conduct complained of in the underlying action since the very nature of that alleged conduct, sexual abuse of children, compels an inference of intent as a matter of law. We disagree.

Initially, we note that "[i]f Allstate * * * believed that some acts are so certain to cause injury that an intent to harm should be inferred to the insured, then the exclusion clause should have provided for this expressly. * * * The fact that the exclusion clause does not provide for an inference of * * * harm counsels against this court’s imposition of such a clause” (Allstate Ins. Co. v Jack S., 709 F Supp 963, 966-967; see, Baldinger v Consolidated Mut. Ins. Co., 15 AD2d 526, affd 11 NY2d 1026). As conceded by Allstate, no New York case has held that in an insurance context, an intent to injure may be inferred as a matter of law simply from the nature of the alleged conduct. In any event, " '[tintent is not established merely because an individual has suffered severe emotional distress as the proximate result of another’s actions’ (Minzer, Damages in Tort Actions, § 6.12 [1], at 6-45)” (Richard L. v Armon, 144 AD2d 1, 5). Whether an inference should be drawn that Edward had intended to harm the children from the nature of his acts alone is a determination to be made by the trier of fact (see, Richard L. v Armon, supra, at 5).

Further, in Public Serv. Mut. Ins. Co. v Goldfarb (53 NY2d 392, 399-400), the Court of Appeals addressed the question of whether the public policy of this State precluded insurance coverage where the insured had been convicted of sexual abuse of the adult complainant. In determining that the public policy of this State did not preclude coverage, the court stated that "[wjhether such coverage is permissible depends upon whether the insured, in committing his criminal act, intended to cause injury. One who intentionally injures another may not be indemnified for any civil liability thus incurred. However, one whose intentional act causes an unintended injury may be so indemnified” (Public Serv. Mut. Ins. Co. v Goldfarb, supra, at 399). Neither Allstate nor our sister States in the cases relied upon by our dissenting colleague has "provided us with any reason in principle to apply a different rule of public policy when liability is claimed to arise from acts of sexual assault” involving children (MacKinnon v Hanover Ins. Co., 124 NH 456, 461, 471 A2d 1166, 1168). Contrary to Allstate’s contention, the ruling in MacKinnon v Hanover Ins. Co. (supra) was not overruled by the decision in Vermont Mut. Ins. Co. v Malcolm (128 NH 521, 517 A2d 800) (see, Allstate Ins. Co. v Jack S., 709 F Supp 963, 967, n 1, supra; cf., Fire Ins. Exch. v Abbott, 204 Cal App 3d 620, 251 Cal Rptr 620, 628, 629-630, n 10).

Since we find that Allstate has a duty to defend the Mugaveros under the homeowner’s policy purchased by them, the other contention raised by Allstate need not be addressed. Brown, J. P., Lawrence and Hooper, JJ., concur.