Westfield National Insurance Co. v. Continental Community Bank & Trust Co.

Case Date: 12/23/2003
Court: 2nd District Appellate
Docket No: 2-01-1369 Rel

No. 2--01--1369



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
 

WESTFIELD NATIONAL INSURANCE
COMPANY,

          Plaintiff-Appellee,

v.

CONTINENTAL COMMUNITY BANK
AND TRUST COMPANY, as Next Friend and
Guardian of the Estates of J.S. and S.S.,
Minors,

          Defendant-Appellant

(Jill Wood Valdez, Defendant).

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Appeal from the Circuit Court
of Kane County.



No. 01--MR--49






Honorable
Michael J. Colwell,
Judge, Presiding.


PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court:

In 2001 plaintiff, Westfield National Insurance Company (Westfield), brought a declaratoryjudgment action seeking a judicial determination that it was not obligated to defend or indemnify itsinsured, Jill Wood Valdez (the aunt), in a civil suit filed against her by defendant, ContinentalCommunity Bank and Trust Company, as next friend and guardian of the estates of J.S. and S.S.,minors (collectively, the minors) (No. 00--LK--625). The underlying civil suit, filed in December2000, arose from allegations that, between early 1995 and continuing to November 1996, the aunt'shusband, Librado Valdez, sexually molested the minors during their visits to the Valdez home. Valdez later pleaded guilty and was criminally convicted for these incidents (No. 96--CF--2395). Theminors appeal the trial court's order granting summary judgment in favor of Westfield. The aunt hasnot appealed the trial court's ruling and is not a party to this appeal. We affirm.

In the underlying civil suit, the minors alleged that their aunt owed "a duty to protect eachchild from harm and danger which she knew or should have known existed." The minors furtheralleged that, notwithstanding that duty, the aunt "was guilty of the following wrongful acts ofcommission or omission":

"(a) Report to the parents of [the minors] the sexual molesting of [the minors] whichshe knew or should have known because of the conduct of her husband ***[;]

(b) Advised the parents of [the minors] of the prior criminal involvement with minorsinvolving *** Valdez in the State of Florida;

(c) Report to the parents of [the minors] inappropriate physical encounters whichwere occurring involving [the minors] and *** Valdez;

(d) Desist from bringing [the minors] to sit on the lap of *** Valdez;

(e) Desist from creating a sexually charged atmosphere by promoting a collectiveviewing of movies which involved naked actors and actresses;

(f) Desist during said movie viewings the encouragement of comments involving thenaked bodies of actresses applicable to the pubescent and pre-pubescent [minors];

(g) Ascertain the activities of *** Valdez at such times as he would leave the maritalbedroom and visit the bed of [the minors];

(h) Desist from directing *** [the minors] to sit on the lap of the partially clad ***Valdez for the purposes of keeping him warm;

(i) Investigate reason why she discovered [one of the minors] locked in the bathroomand crying after an encounter with *** Valdez;

(j) Desist from providing and encouraging [the minors] from wearing minimal andprovocative clothing when interacting with *** Valdez;

(k) Desist from the isolating of [the minors] from each other so as to secure a one-on-one intimacy with *** Valdez."

The underlying complaint further alleged:

"As a direct and proximate result of one or more of the aforesaid enabling acts oromissions, *** [the minors] were exposed to and submitted to *** Valdez, at which time,each of them was molested and suffered injuries of a personal and pecuniary nature."

Count II contained the same allegations but claimed that the aunt's conduct violated sections 2--3(1)(b) and (2)(iii) of the Juvenile Court Act of 1987 (705 ILCS 405/2--3(1), (2)(iii) (West 2000)).

The aunt tendered her defense to Westfield under her homeowner's policies in effect at therelevant times. In response, Westfield filed this declaratory judgment action claiming that it owed noduty to defend or indemnify the aunt because, inter alia, the underlying complaint alleged deliberateor intentional conduct on the part of the aunt, which enabled Valdez to molest the minors, and wastherefore barred under the "expected or intended" exclusion of the Westfield policies. At the hearingon Westfield's motion for summary judgment, the minors sought leave to depose the aunt; the trialcourt denied the motion. Following a hearing, the trial court granted summary judgment in favor ofWestfield, ruling that Westfield had no duty to defend or indemnify the aunt. The minors timelyappeal.

The minors contend that the trial court erred when it granted summary judgment in favor ofWestfield and argue that the applicable provisions of insurance did not preclude coverage to the aunt. The construction of an insurance policy and a determination of the rights and obligations arising underthe policy are questions of law for the court, and summary judgment is an appropriate proceeding forresolving these questions. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d384, 391 (1993). A trial court will enter summary judgment if the pleadings, depositions, admissions,and affidavits show that no genuine issue of material fact exists and that the moving party is entitledto judgment as a matter of law. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). We apply a de novo standard of review to the trial court's decision to grant summary judgment. Jones, 191 Ill. 2d at 291.

Whether an insurer has a duty to defend its insured depends on whether the underlyingcomplaint alleges facts within or potentially within coverage of the insurance policy. National UnionFire Insurance Co. of Pittsburgh v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228,234 (2002). Where the underlying complaint alleges facts which, if true, would exempt the insuredfrom coverage under the policy, the insurer has no duty to defend. American Family MutualInsurance Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1094 (1998), citing State Farm Fire & CasualtyCo. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993). In construing the insurance policy, we mustconstrue the policy as a whole, taking into account the type of insurance for which the parties havecontracted, the risks undertaken and purchased, the subject matter that is insured, and the purposesof the entire contract. Crum & Forster Managers Corp., 156 Ill. 2d at 391. If the words in the policyare plain and unambiguous, the court will afford them their plain, ordinary meaning and will applythem as written. Crum & Forster Managers Corp., 156 Ill. 2d at 391.

Each policy in force during the relevant time period provided the following coverage:

"COVERAGE E -- Personal Liability

If a claim is made or a suit is brought against an Insured for damages because of bodily injury,caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the Insured is legally liable; and

2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent." (Emphasis added.)

Each policy also excluded from coverage bodily injury or property damage "which is expected orintended by the Insured." The policies also stated that personal injury insurance did not apply to"injury caused by a violation of a penal law or ordinance committed by or with the knowledge orconsent of an insured."

Each policy defined "occurrence" as follows:

"9. 'occurrence' means an accident, including continuous or repeated exposure tosubstantially the same harmful conditions, which results, during the period, in:

a. bodily injury; or

b. property damage." (Emphasis added.)

The policies define the term "bodily injury" as "bodily harm, sickness or disease, including requiredcare, loss of services and death resulting therefrom." With respect to the term "Insured," the policiesstated that it "means, unless otherwise defined, you and any 'family member.' " The policies defineoccurrence as an "accident." Although the use of the word "occurrence" in insurance policiesbroadens coverage and eliminates the need to find an exact cause of damages, as long as they areneither intended nor expected by the insured, the "occurrence" must still be "accidental." State FarmFire & Casualty Co. v. Tillerson, 334 Ill. App. 3d 404, 408 (2002). Illinois courts have defined"accident" as an unforeseen occurrence, usually of an untoward or disastrous character or anundesigned, sudden, or unexpected event of an inflictive or unfortunate character. Aetna Casualty& Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619 (1980). The natural and ordinary consequences ofan act do not constitute an accident. See Atlantic Mutual Insurance Co. v. American Academy ofOrthopaedic Surgeons, 315 Ill. App. 3d 552, 561 (2000). Therefore, under the terms of the policies,if the aunt "expected or intended" to cause bodily injury to the minors, her actions are not an"accident" and are not covered under the "occurrence" provision, which triggers coverage. See StateFarm Fire & Casualty Co. v. Watters, 268 Ill. App. 3d 501, 506 (1994). Moreover, if the aunt"expected or intended" to cause bodily injury to the minors, her actions are not covered and areexcluded under the "intended-acts" provision. See Watters, 268 Ill. App. 3d at 506.

As an initial matter, we believe it would be helpful to summarize our state's case lawpertaining to homeowner's insurance coverage for sexual abuse. Reviewing courts have previouslyconsidered whether the sexual molestation of minor children by an insured fell within an exclusionaryclause of a homeowner's policy and ruled that, when the injuries were expected or intended by theinsured, coverage was excluded. See Scudder v. Hanover Insurance Co., 201 Ill. App. 3d 921(1990). In Scudder, this court affirmed a summary judgment ruling in favor of the insurer, where theinsured had allegedly sexually abused four minor boys. We concluded that the insured's intent tocause injury could be inferred as a matter of law because of "the inevitability of injury in sexual abusecases, especially when the victims are minors." Scudder, 201 Ill. App. 3d at 928.

Since Scudder was decided, Illinois courts have adopted an "inferred-intent" rule in sexualabuse cases where the victims are minors. Watters, 268 Ill. App. 3d at 507; see also HartfordInsurance Co. of Illinois v. Kelly, 309 Ill. App. 3d 800, 804-07 (1999). Under this rule, if a personsexually abuses a minor, the court will find as a matter of law that the abuser intended to injure hisor her victims. Watters, 268 Ill. App. 3d at 507.

In Watters, the defendant sexually molested three minor children; the defendant was mildlyretarded. The parents filed suit against the defendant and his mother, alleging that the defendant'sconduct injured the children and the mother was negligent in allowing the sexual molestations tooccur in her home. In an amended complaint, the parents also sought damages for the negligentinfliction of emotional distress upon the children, which resulted from the defendant's sexualmolestation. Watters, 268 Ill. App. 3d at 502. The defendant tendered his defense to State Farm,and State Farm sought a declaratory judgment with respect to the policy. The trial court determinedthat the homeowner's policy provided coverage for the defendant's actions and that State Farm wasrequired to defend and indemnify the defendant in the civil suit. Watters, 268 Ill. App. 3d at 505.

On appeal, State Farm argued that its policy did not provide coverage because the defendant'ssexual misconduct was intentional and not an "accident." In determining whether the "occurrences"were "accidents" triggering coverage or whether the policy's exclusion provision applied, thereviewing court considered whether the injury was expected or intended from the standpoint of theinsured. Watters, 268 Ill. App. 3d at 506. The reviewing court found the Scudder court's reasoningpersuasive and reversed, holding that, despite the defendant's diminished mental capacity, his specificintent to injure would be inferred as a matter of law, precluding coverage under the homeowner'spolicy. Watters, 268 Ill. App. 3d at 507. The reviewing court also considered and rejected the argument that the cause of action for negligent infliction of emotional distress should be coveredunder the policy, finding that the allegations of negligence were "a transparent attempt to triggerinsurance coverage." Watters, 268 Ill. App. 3d at 510.

In Western States Insurance Co. v. Bobo, 268 Ill. App. 3d 513, 519-20 (1994), the reviewingcourt explained the public policy rationale underlying the inferred-intent rule in that, although someinnocent victims may go uncompensated, the " 'benefit [of compensating sexual abuse victims withinsurance proceeds] is outweighed by the effect of allowing sexual offenders to escape having tocompensate minors for the harm' " they caused. Bobo, 268 Ill. App. 3d at 521, quoting Whitt v. DeLeu, 707 F. Supp. 1011, 1016 (W.D. Wis. 1989). In Kelly, 309 Ill. App. 3d 800, the First Districtconsidered whether intent could be inferred as a matter of law to exclude coverage when theallegations of sexual conduct with a minor were phrased in terms of negligence. In determining thatinferred-intent applied to free the insurance company from its duty to defend, the reviewing courtstated that "the parties did not intend to include in the definition of 'occurrence' inappropriate sexualmisconduct of a minor." Kelly, 309 Ill. App. 3d at 806. The court also reasoned that a homeownerwould not believe that he was paying for such coverage and would not want to share that type of riskwith other policyholders. Kelly, 309 Ill. App. 3d at 807.

The general rule flowing from the foregoing cases is that an insurance company is under noduty to defend or indemnify an insured who sexually abuses a minor, because the nature of theconduct itself conclusively establishes as a matter of law that the insured expected or intended toinjure the victims. See Kelly, 309 Ill. App. 3d at 805-07; Bobo, 268 Ill. App. 3d at 521; Watters, 268Ill. App. 3d at 507; but see Country Mutual Insurance Co. v. Hagan, 298 Ill. App. 3d 495, 504-06(1998) (holding that an intent to injure is not inferred when the abuser is also a minor). Coverage isnot triggered because an insured's sexual abuse of a minor does not fall within the definition of"occurrence." See Kelly, 309 Ill. App. 3d at 806. Further, the "expected or intended acts" exclusionprovision of an insurance policy applies to exclude coverage for an insured's sexual abuse of a minor. Scudder, 201 Ill. App. 3d at 928.

We recognize that, in the Scudder, Watters, Bobo, and Kelly cases, coverage was sought onbehalf of the actual abuser whose victims were seeking relief in a civil forum. In the present case,however, the minors are seeking relief based on the aunt's conduct and not the acts of Valdez, theactual abuser. Therefore, the issue in the present case is whether a duty to defend or indemnify existsas to the spouse of a perpetrator who commits sexual abuse upon minors. In this case, for thereasons articulated below, we hold that the intentional-acts exclusion of the policies applies andprecludes Westfield from owing a duty to defend or indemnify the aunt for the injuries she allegedlyinflicted upon the minors.

Although no other Illinois court has addressed this particular issue, we note that severalreviewing courts have considered whether one spouse-insured may have a right to recover under aninsurance policy separate from that of the other spouse-insured who committed an intentional act, thefirst being Economy Fire & Casualty Co. v. Warren, 71 Ill. App. 3d 625 (1979). In Warren, after acouple's claim for fire damages had been paid by the insurer, the wife admitted setting the fire thatcaused the loss. The insurer sought restitution of the proceeds paid to the husband and wife. Thehusband denied any wrongdoing and sought to keep his share of the proceeds received under theinsurance policy. The trial court found that the settlement and payment were procured by fraud. Onappeal, after considering rulings from other states, the reviewing court declined to impute theintentional act of the wife to the husband. Warren, 71 Ill. App. 3d at 628-29. Instead, the reviewingcourt identified the husband as an "innocent" insured, and allowed the husband to recover one-halfof the insurance proceeds. Warren, 71 Ill. App. 3d at 629. The reviewing court further explainedthat, had the insurer intended that the wrongdoing of one insured be imputed to another insured, itshould have expressed those terms in the policy. Warren, 71 Ill. App. 3d at 629.

Since Warren was decided, other reviewing courts have similarly held that, absent aninsurance provision to the contrary, the wrongdoing of one insured cannot be imputed to anotherinsured. See, e.g., Fittje v. Calhoun County Mutual County Fire Insurance Co., 195 Ill. App. 3d 340(1990); State Farm Fire & Casualty Insurance Co. v. Miceli, 164 Ill. App. 3d 874 (1987); West BendMutual Insurance Co. v. Salemi, 158 Ill. App. 3d 241 (1987). In the present case, the minors filedsuit against the aunt seeking damages based on the aunt's allegedly negligent conduct, whichpurportedly led to Valdez's molestation of the minors. The inferred-intent rule clearly precludes anyduty to defend or indemnify Valdez, as his intent to cause bodily harm to the minors is inferred as amatter of law by his conduct. See Kelly, 309 Ill. App. 3d at 805-07; Bobo, 268 Ill. App. 3d at 520;Watters, 268 Ill. App. 3d at 507. Based upon the principles articulated in the Warren line of cases,we decline to impute the intent of Valdez to the aunt and will instead focus on the provisions of thepolicy and the allegations of the underlying complaint in determining whether the intentional-actsexclusion applies to preclude Westfield from having a duty to defend or indemnify the aunt. SeeNational Union Fire Insurance Co., 329 Ill. App. 3d at 234. In doing so, we reject the minors'argument that the trial court abused its discretion when it refused to allow them to depose the auntbefore ruling on Westfield's motion for summary judgment. See Atlantic Mutual Insurance Co. v.American Academy of Orthopaedic Surgeons, 315 Ill. App. 3d 552, 567 (2000) (stating that, wheresummary judgment is sought in the context of a declaratory judgment action to determine whetheran insurer has a duty to defend, the use of extrinsic evidence is inappropriate); see also BituminousCasualty Corp. v. Fulkerson, 212 Ill. App. 3d 556, 562 (1991).

Liability insurance is intended to protect insureds from losses and to provide a source of fundsto compensate victims. The liability portion of a typical homeowner's insurance policy generallyprovides liability coverage for many claims against insureds sounding in negligence but excludescoverage for claims of liability arising from intentional acts of insureds. See State Farm Fire &Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1084 (2000). Here, the intended-acts exclusion ofthe policy at issue excluded from coverage bodily injury or property damage "which is expected orintended by the Insured."

In construing a policy exclusion for bodily injury "which is expected or intended by theinsured," courts have explained that coverage is precluded if the insured's acts were intentional andthe insured had the specific intent to injure. See Scudder, 201 Ill. App. 3d at 927. Our supreme courtstated that these clauses require a specific intent or expectation that the bodily injury will occur. BayState Insurance Co. v. Wilson, 96 Ill. 2d 487, 492-94 (1983). Therefore, an intentional act causingan unexpected or unintended result may be covered. Wilson, 96 Ill. 2d at 493. However, the Wilsoncourt further stated that whether an injury was "expected" is a subjective question, but it can beinferred from objective evidence that the injury was the natural and probable result of the act. Wilson,96 Ill. 2d at 493-94. The terms "intended" and "expected" are not synonymous, and a greater degreeof proof is required to establish "intent" than to establish "expectation." Wilson, 96 Ill. 2d at 494,citing Farmers Automobile Insurance Ass'n v. Medina, 29 Ill. App. 3d 224, 228-29 (1975) (Moran,J., specially concurring). Injury is "expected" where the damages are not accomplished by design orplan, i.e., not "intended," but are "of such a nature that they should have been reasonably anticipated(expected) by the insured." Freyer, 89 Ill. App. 3d at 620. Accordingly, injuries that should havebeen reasonably anticipated by the insured will be found to have been subjectively "expected" withinthe meaning of an insurance policy. Wilson, 96 Ill. 2d at 494, citing Freyer, 89 Ill. App. 3d at 620.

In the present case, the allegations of the underlying complaint, taken as true, reflect that theaunt invited and encouraged the minors to visit at her home while Valdez was present; directed theminors to sit on her husband's lap while he was "partially clad"; and promoted "a collective viewingof movies which involved naked actors and actresses." In addition to encouraging comments on "thenaked bodies of actresses applicable to the pubescent and pre-pubescent Minors," the aunt alsoencouraged the minors to wear "minimal and provocative clothing when interacting with *** Valdez." The aunt did nothing when Valdez left the marital bedroom to visit the minors in their bedrooms. Even when one of the minors locked herself in the bathroom crying, the aunt did nothing. Theallegations reflect the aunt's awareness of her husband's prior criminal involvement with minors inFlorida and of her husband's inappropriate physical encounters with the minors; however, despite thisawareness, the aunt did nothing to advise or report these circumstances to the minors' parents.

We believe that each of these allegations establishes that the aunt should have been cognizantof her own conduct toward the minors and vis-a-vis her husband, Valdez. We further believe thatthe aunt reasonably should have anticipated or "expected" the injuries, which were a natural andprobable result of her enabling acts, regardless of whether she could anticipate the precise injury theminors would actually suffer. See Wilson, 96 Ill. 2d at 493-94. Despite the phraseology used in theunderlying complaint, the minors have alleged intentional conduct on the part of the aunt, and theminors' cause of action based on negligence is "a transparent attempt to trigger insurance coverage." See Watters, 268 Ill. App. 3d at 510. The allegations presented in the underlying complaint areentirely dissimilar to the circumstances presented in Warren, in which the reviewing court identifieda right to recover applied to an "innocent" spouse. See Warren, 71 Ill. App. 3d at 629. Finding thatthe allegations in the present case established that the aunt was an "innocent" spouse or interpretingthe allegations as nothing more than mere negligence would require us to ignore the facts alleged.

We also find support for our conclusion that the instant complaint alleges conduct of anintentional nature from decisions of other jurisdictions addressing similar circumstances. A wife'sindifference to her husband's criminal conduct may be characterized as an affirmative act. See PamelaL. v. Farmer, 112 Cal. App. 3d 220, 169 Cal. Rptr. 282 (1980); Doe v. Franklin, 930 S.W.2d 921(Tex. Ct. App. 1996). In Farmer, the reviewing court found that the respondent wife was not merelynegligent in failing to prevent harm to the minor plaintiffs from her husband but that the respondentby her own acts increased the risk of such harm occurring. According to the allegations, therespondent " 'encouraged and invited' " the children to play in her swimming pool, preparedrefreshments to " 'entice' " the children, and " 'encouraged the parents ... to permit' " the children tocome to her premises by telling them it would be perfectly safe for the children to swim when therespondent was not there, because her husband would be there. Farmer, 112 Cal. App. 3d at 210,169 Cal. Rptr. at 284. The respondent was alleged to have committed these acts with the knowledgethat the husband had molested women and children in the past and that it was reasonably foreseeablehe would do so again if left alone with the children on the premises. The court concluded that, byencouraging and inviting the children to be alone with the husband under circumstances where hewould have an opportunity to commit such misconduct, the respondent could be held to haveintentionally acted and unreasonably exposed the children to harm. Farmer, 112 Cal. App. 3d at 210,169 Cal. Rptr. at 284.

In the present case, we conclude that the allegations in the underlying complaint areaffirmative acts couched in terms of negligence. See Farmer, 112 Cal. App. 3d at 211, 169 Cal. Rptr.at 285. We therefore find that the exclusion provision that bars coverage for bodily injury that is"expected or intended" from the standpoint of the aunt applies and that Westfield has no duty todefend or indemnify the aunt under the allegations of the underlying complaint. We are not persuadedby the minors' attempt to recast as negligence the expected or intended acts of an insured in anattempt to defeat the intended-acts exclusion of Westfield's policies.

We find further support for our decision today in Jessica M.F. v. Liberty Mutual Fire Ins. Co.,209 Wis. 2d 42, 561 N.W.2d 787 (1997). In that case, grandchildren and their parents filed suitagainst their grandfather and grandmother for sexual abuse by the grandfather. The allegationsagainst the grandmother were for her negligent failure to protect and supervise the children and toprevent the grandfather from committing the sexual abuse. The plaintiffs alleged, among other things,that the grandmother " 'knew or *** should have known that [grandfather] was engaging in sexualcontact and engaging in sexually explicit conduct with [the grandchildren].' " Jessica M.F., 209 Wis.2d at 46, 561 N.W.2d at 789. In denying coverage to the grandmother, the reviewing courtconstrued this allegation not as a negligent act but as an intentional one for insurance coveragepurposes. Jessica M.F., 209 Wis. 2d at 60, 561 N.W.2d at 795. For the reasons expressed above,we believe that a similar conclusion is warranted here in light of the minors' allegations that the auntknew or should have known that her conduct would result in injury to the minors.

Where the factual allegations in a civil case compel a conclusion, as a matter of law, that aninsured's act was expected or intended, a summary judgment is properly entered in favor of theinsurer whose policy excludes coverage for expected or intended acts. Prudential Property &Casualty Insurance Co. v. Kerwin, 215 Ill. App. 3d 1086, 1090-91 (1991). Because the duty todefend is broader than the duty to indemnify, if an insurer owes no duty to defend, it owes no dutyto indemnify. American Family Mutual Insurance Co. v. Enright, 334 Ill. App. 3d 1026, 1029 (2002),citing Crum & Forster Managers Corp., 156 Ill. 2d at 393. Because the underlying complaint seeksrecovery from the aunt for her participatory conduct resulting in the sexual abuse of the minors, weconclude that the trial court properly held that Westfield had no duty to defend or, therefore, toindemnify the aunt in the underlying suit. We have reviewed the minors' remaining arguments andfind them to be without merit. Accordingly, we affirm the trial court's grant of summary judgmentin favor of Westfield.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

McLAREN and O'MALLEY, JJ., concur.