13 Conn. L. Rptr. 453 | Conn. Super. Ct. | 1995
The policy in question provides: "We do not cover bodily CT Page 1067 injury or property damage intentionally caused by an insured person." Defendant is covered by a policy with a limit of $300,000. Defendant claims at the time he had sexual relations with the minor he did not know her age nor did he intend to injure her.
Connecticut has not yet decided what elements constitute an intentional act within the exclusionary clause mentioned. Most jurisdictions that have considered the matter of sexual relations with a minor have concluded that such acts are deemed to be intentional as a matter of law, regardless of the insured's subjective intent, as defendant claims in this case. See e.g. Altena United Fire Casualty Company,
The present case is one of statutory rape and the act of intercourse with a minor is in and of itself proof of intent and injury as a matter of law.
Raquel Martin, the alleged victim of defendant Plude's conduct, instituted her action against Plude and others in a civil suit dated December 7, 1990. The court judicially notices this suit. Her complaint contains seventeen counts, the first count of which in paragraph seven alleges in five subparagraphs wanton, wilful and intentional acts of defendant Plude in having sexual intercourse with her in 1990 when she was a minor child. Her parents join her in the action. In Count Three the alleged victim claims that as an adult defendant Plude owed a duty of reasonable care to the alleged victim which he failed to provide by violating that duty. She also claims defendant Plude's conduct was "reckless" in addition to being a negligent assault and battery. Some of the Counts allege "negligence" in violating Sections
While there does not appear to be any evidence that defendant Plude intended to cause the alleged victim any injuries, the fact of the matter, as already indicated, when a person has sexual relations with a minor child an injury results as a matter of law regardless of the subjective intent of that person. The Connecticut statutes prohibiting such intercourse with minors and making it criminal conduct establishes a mandatory policy that cannot be negated by any subjective intent of the person. Defendant Plude was convicted of three counts of sexual assault in the second degree in violation of Section
The defendant Raquel Martin in the present action argues strenuously in her brief that this action is governed by the court's decision in St. Paul Fire Marine Insurance Company v.Shernow,
The rule in Schuss applied where the issue was, did the plaintiff insurance company produce sufficient evidence for a jury to find that Schuss acted negligently, rather than CT Page 1069 intentionally, when he set fire to a synagogue. The court found there was no evidence from which a jury could reasonably conclude that Schuss acted negligently, rather than intentionally, and therefore the verdict of $167,877.07 for the plaintiff could not stand. See page 775. There is a real difference in meaning between an intentional act and a negligent one. Oliver Wendell Holmes is quoted as saying: "even a dog knows the difference between being tripped over and being kicked." The court's discussion about the difference between negligent conduct and intentional conduct on pages 776-777 covers the subject very well. It seems to the two dissenting justices that the majority in Shernow had a steep hill to climb and did not quite reach the top.
The court must next consider the only evidence produced in the present case. A deposition of Raquel Martin dated July 14, 1994, taken by plaintiff discloses that she was a minor when she came to know the defendant Plude who was a teacher at Central High. She was introduced to him by one of her friends. She called Plude and arranged to meet him at school, and they met. After that she called him again, met him at school again, and then went to his house on Lincoln Avenue in January 1990. He drove her there in his car and later took her home. It was about 2:30 in the afternoon. She had sexual relations at Plude's home in January, February and March of 1990, in his bedroom. Their relationship ended in the summer of 1990. In addition to sexual intercourse they engaged in oral sex.
There was a time when she couldn't see Plude because her parents didn't allow her out of the house. In addition to having sex at Plude's house, they also had sexual relations at Seaside Park and also at Raquel Martin's home on Hanson Avenue.
Raquel Martin's answer in the present action, dated July 6, 1994, admits a few paragraphs of plaintiff's complaint but either denies or leaves to plaintiff's proof all the remaining allegations. In her own civil action against Plude and others she combines allegations of an intentional assault and battery with allegations of a negligent assault and battery, a reckless assault and battery, negligence, an "intentional infliction of emotional distress," and a negligent infliction of emotional distress. Obviously, however these allegations seek to express her claim with considerable redundancy of language. They endeavor to describe the acts of sexual and oral intercourse between defendant Plude and Raquel Martin as both intentional CT Page 1070 and negligent. The court must therefore determine in this action by plaintiff Allstate whether these acts can properly be described as both intentional and negligent. If they are correctly described as intentional, then the exclusion of such acts provided in plaintiff's policy would apply and the plaintiff need not defend defendant Plude. On the other hand if they are properly described as negligent acts, then plaintiff is obligated to defend Plude.
The only evidence presented in this case is found in the deposition of Raquel Martin and summarized above. There is no dispute that the sexual acts occurred over a period of approximately six months on quite a few occasions in several different places at a time when Raquel Martin was a minor child.
Raquel Martin's counsel places great faith in the Shernow decision but this court finds it difficult to accept that case as controlling on the question of what is intentional and what is negligent. In fact, Shernow may well be described as suigeneris. The issue in that case was whether the dentistShernow's professional liability (malpractice) policy applied. It described as "negligent" the manner in which Shernow administered nitrous oxide to keep the patient he was sexually assaulting helpless while he completed his assault. He turned up the gas twice during the assault. A vital factor in reaching this conclusion was the physical injury that resulted to the patient, leaving her with a permanent asthma condition and a permanent loss of thirty-five to forty percent of her lung capacity. Shernow, pages 829-830. The court found that the administration of the gas for twice the customary length of time, the failure to check the accuracy of the mechanism metering the gas, and the failure to ask the patient about medications she might be using before administering the gas, all of these facts constituted negligent malpractice covered by the professional liability policy, and this medically negligent procedure was "inextricably intertwined and inseparable from(Shernow's) intentional conduct which served as a basis for the separate claim of a sexual assault . . ." The two dissenting justices strongly disagreed with this analysis of the case, stating at page 833, that the only reason Shernow used the gas was to satisfy his sexual desires, and there was nothing in the facts of the case indicating any dental treatment was performed. Thus there was nothing to justify the majority's statement that there was a medically negligent procedure inextricably intertwined and inseparable from the intentional conduct. There CT Page 1071 was only intentional misconduct involved.
The court in the present case is of the opinion that theSchuss decision provides a more accurate interpretation of the facts and the law here involved than does Shernow. As Schuss sets forth, "it is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree, . . . are separate and mutually exclusive" See page 775 of Schuss. Quoting from Prosser and Keeton, Torts (5th Ed. 1984, pages 169-70), ". . . As the probability of injury to another, apparent from the facts within the acting party's knowledge, becomes greater, (defendant's) conduct takes on more of the attributes of intent, until it approaches and finally becomes indistinguishable from that substantial certainty of harm that underlies intent." It is undoubtedly for this reason that cases involving sexual offenses with minors frequently find the harm that occurs as a matter of law notwithstanding any attempt by the culprit to disavow an intent to injure. What Plude did in this case was not inadvertent nor was it negligent. It was deliberate and intentional.
For this reason the plaintiff's policy does not provide protection for the defendant because of the language of its coverage exempting bodily injury intentionally caused. Common sense requires the court to find that the plaintiff is not legally or contractually obliged to indemnify or defend Plude in the civil action instituted by Raquel Martin and her parents dated December 7, 1990 in the Superior Court.
