*1
450 FIRE INSURANCE EXCHANGEv DIEHL
10).
(Calendar
Argued
Docket No. 100985.
November
No.
19, 1996.
Decided March
Exchange,
Fire Insurance
insurer of Clifford and Michelle Buck-
policy,
master
their minor
under a homeowner’s
and
son
brought
against Mary
action in the
Circuit Court
Oakland
Diehl, individually
daugh-
Ann
ter,
and as next friend of her minor
Buckmasters, seeking
and the
a declaration that the com-
pany
duty
indemnify
was under no
either to defend or
its
action,
underlying
Mary
insureds in an
In that
civil action.
sought damages
physical
Ann Diehl
for the
and emotional
daughter
of her minor
as
result
two instances of
requesting
daughter
perform
Buckmasters’ minor son
Diehl’s
fellatio,
acquiescence.
her
and
The insurer asserted that
they
son’s
were not
acts
covered because
were excluded inten-
acts,
reasonably
tional
because the harm from the acts was
injuries
and because the
foreseeable
were neither
nor
insured,
required
and because the court was
court,
injure
infer the son’s intent to
The
matter
law.
O’Brien, J., granted
plaintiff’s
John N.
motion for sum-
exclusion,
mary disposition on the basis of the intentional-acts
applied
and ruled
it
because a reasonable adult could have
foreseen the harm that resulted from the acts.
The Court
Hood, P.J.,
Appeals,
Jackson, JJ., reversed,
and Neff and T. E.
finding
required
the intentional-acts exclusion
a mixed
objective-subjective
i.e.,
foreseeability,
standard
whether a
age, ability, intelligence,
experi-
reasonable child of like
and
harm,
ence under like circumstances would have foreseen the
and refused to infer as a matter of law that the child actor
147298).
(Docket
plaintiff
intended to
the victim
No.
The
appeals.
opinion
joined In an
Brickley,
Chief Justice
Justices
Supreme
Levin, Cavanagh,
Mallett,
Court held:
policy may
jury
cover the incidents if a
finds that the
injury resulting from the child actor’s conduct was not reason-
ably
age,
intelligence,
ability,
foreseeable to a child of like
experience
under like circumstances. If a
excludes cover-
age
reasonably
for intentional acts where the result is
foresee-
able,
foreseeability
for an insured child should be
v Diehl
judged
objective-subjective
under a mixed
standard. It should
not be inferred as a matter of law that child actors intend the
harm that results from their sexual assault of a victim because
*2
children,
group,
capacity
do not have the
to understand
consequences
of sexual acts.
policy
1. The occurrence section of this
includes the child
injuries
expected
actor’s
if
assaults
were neither
nor in-
by
tended
the insured. The definition of "occurrence” in the
expected
by
as an event neither
nor intended
the insured
requires
application
subjective
of a
standard. Because there
stage
is no evidence at this
in the trial that the child actor
subjectively
assaults,
intended the harm that resulted from the
summary judgment must be denied.
involved,
2.
foreseeability
Where a child is
the reasonable
judged
a result
objective-subjective
should be
under a mixed
phrase "reasonably
ambiguous
stándard. The
foreseeable” is
applied
excep-
when
to a child. Because it is
in
contained
an
tion, it is to be
construed
favor of the insured. Under the
expectation,
unlikely
policyholder
rule of reasonable
it is
that a
reasonably expect
that a covered child’s actions would be
judged by
objective
an
adult standard because of the unex-
pected
expectation
A
results.
is for a child to be
held
foreseeability. Adapting
negli-
to a lesser standard of
gence
concept
standard for children to the
of reasonable fore-
seeability
policy,
reasonably
under the
whether a result
is
question
jury,
foreseeable to a child should be a
of fact for the
which is to determine it on the basis of whether a child of like
age, ability, intelligence,
experience reasonably
would have
expected
been
injury
to foresee the
under like circumstances.
policy,'summary
Under
judgment
inappro-
the terms of the
priate
foreseeability
jury.
because
anis
issue for the
purposes
insurance,
liability
3. For
of civil
when an adult
sexually
child,
injure
assaults a
an intent to
is inferred as a
However,
matter of law.
such an intent should not be inferred
as a matter of law where a child is the assailant.
Remanded.
joined by
Justice Riley,
Justices
and Weaver, dissent-
Boyle
ing,
provide coverage
stated that the insurance contract did not
for the
caused
the insured child’s intentional conduct.
inherently
conduct,
Because of the
harmful nature of the
intent to
should be inferred
aas matter of law.
minor,
sexually
When an adult
assaults a
an intent to harm
regardless
is inferred as a matter of law
of whether the insured
subjective
claims there was no
intent to harm the victim. The
inferring
rationale for
intent as a matter of law for this kind of
450 Mich
Opinion of the Court
inherently
sexual abuse is based on the
harmful nature of child
A
who
commit
molestation.
intends to
this act also
harm.
intends
Because the child in this case intended to
act,
may
commit this
his intent to harm
be inferred.
years
may
capable
negligence
A child seven
or older
committing
Inferring
an intentional tort.
intent to
child’s
expectations
harm is consistent with the reasonable
of the
contract,
parties. By entering
parties agreed
this insurance
only
certain events would be covered
the insurer.
Specifically,
event,
the insurance contract
covers
sudden
including
repeated exposure
continuous or
to the same condi-
tions,
bodily injury
expected
that results in
neither
in-
nor
tended
the insured. The child’s decision to commit these
reasonably
abusive acts cannot
be described as a sudden event.
reasonably
The insureds could not
have
their
inherently
child’s intentional and
harmful conduct would be
protected by
subject
their insurer
when
child was also
liability
Michigan
tort
under
law.
(1994)
App 108;
Campbell, Karlstrom, Harry, & Cooney P.C. C. Daniel Harry), for the defendants. (by C.J. In this case we decide if a home-
Brickley, owner’s insurance policy covers the result- ing from a child actor’s for requests the child victim perform to fellatio and the child victim’s acquiescence. We find that policy cover may the incidents if a jury finds that the injury result- ing from the child actor’s conduct was not reason- ably foreseeable to a age, child of like ability, intelligence, experience under like circum- stances.
Reaching conclusion, we find that if the coverage excludes for. intentional acts where foreseeable,” the result is "reasonably foreseeability an insured child judged should be under a mixed objective-subjective standard. Opinion op the Court separate holding, infer,
As a we also decline to law, as a matter of that child actors intend the harm that results from their sexual assault of a inappropriate victim.1 The inference is because group, capacity children, as a do not have the consequences understand the of their acts. sexual
FACTS On two distinct occasions the male child actor requested perform victim fellatio and the complied. incident, victim the child actor theAt time of the first years about
was six seven old. incident, At the time of the second the child actor years younger was nine old. The victim is than the disputes party actor. Neither the child actor act. deposition empha- testimony The child actor’s although that, sizes the child actor intended his. acts, was he unaware the acts could hurt. Q. you any Did you have idea that be
hurting [the victim]?
A. No.
Q. you Did ever mean to hurt [the victim]? A. No. friend,
Q. your was wasn’t she? [The victim] A. Yes. Q. you any you may Did have idea
hurting her head? [the victim]
A. No. Q. you any you Did have idea whether or not hurting body? were on her [the victim]
A. No. Testifying about the second incident the child case,' appropriate We reserve for a future determination of the age minimum to infer as a matter of law that children intend the harm results from sexual acts. their 450 Mich Opinion op the Court actor still maintained that he did not know he was hurting the victim. right. you you hurting Q. All Did know were
[the victim]then? A. No. you any way [the victim] Did mean to húrt
Q. then?
A. No. The victim’s mother learned of the assaults and brought physical a civil action for and emotional damages against parents. the child actor and his Separately, Exchange (plaintiff), Fire Insurance parents who covered the actor and the actor’s policy, action, under a homeowner’s filed this seek- ing declaratory judgment company that the was duty indemnify under no either to defend or parents assailant or the assailant’s in the action arising from the sexual assaults. Plaintiff summary judgment motion on the terms of the its based policy. homeowner’s
Plaintiff asserted that the child actor’s acts were policy only not covered because the covered that was "neither nor coverage insured,” and because the excluded for intentional acts. The intentional-acts exclusion foreseeability was based on the of harm that re- argued sulted from that, such acts. Plaintiff also despite the child actor’s assertions that he did not victim, intend to hurt the child the court must infer the child actor’s intent the victim granted as a matter of law. The trial court plaintiff’s disposition summary motion for on the basis the intentional-acts exclusion. The trial ap- court ruled that the intentional-acts exclusion plied because a reasonable adult could have fore- seen the harm that resulted from the acts. *5 Exchange Fire Ins op Opinion the Court
The Court of It Appeals reversed. declined to impose on a minor the objective standard of fore- Instead, used trial seeability by the court. it inter- preted require the intentional-acts exclusion a objective-subjective mixed standard of foreseeabil- ity. It being announced this standard as whether "a age, ability, child of like intelli- gence, experience under like circumstances” would have foreseen harm. Fire Ins Diehl, 108, 119; 206 Mich App NW2d 675 (1994). The Court arrived at this standard adapting the negligence standard for minors to the concept foreseeability. of Id. It also refused to infer matter law that the child actor intended to injure the victim. Id. at 118.
THE INSURANCE POLICY
This Court must
plaintiff’s
now address
motion
for summary judgment
deciding
plaintiff’s
if
policy
cover
sexual
assaults
by minors
a
where minor
intends
act but is unaware that
harm
result.
could
An insurance
con-
policy
a
tract
parties.
between the
To decide whether
a
particular
act,
covers
policy
the court must
agreed
determine what
parties
to in the policy.
Churchman,
Auto-Owners
Ins Co v
(1992).
from occurrence bodily injury property pay liable damage because expense At our we policy. covered any claim claim against insured covered shall defend an or or suit that we investigate any settle may suit. We proper. consider *6 provides a definition of "occur- policy also rence.” event, including re- continuous or sudden [A] conditions, resulting
peated exposure to the same bodily damage ex- injury property in pected or neither by insured. nor intended the Therefore, if present the covers the assaults policy nor intended injuries expected the were "neither the by insured.”
Because, case, in this the child actor intended injuries, the we must the acts but did not intend expected the "neither phrase determine whether policy nor intended the insured” excludes broad coverage injuries objec- all if the injuries for were intended, phrase the ex- tively only or whether injuries coverage subjectively cludes intended Freeman, Co v Allstate Ins In insured. (1989), a majority following required policy this Court held objective use an standard: any injury bodily property We do cover or not damage may reasonably expected which criminal of an result from the intentional or insured acts or which is in fact an person. insured of this held Comparatively, majority Court following required exclusion policy a subjective use of standard: Fire Ins v Diehl Opinion op the Couet policy excludes or b]odily injury property [The damage which is either or intended from (See standpoint of the insured. at 708. also [Id. opinions by Archer, Levin, JJ.)] Cavanagh, Boyle distinction, Explaining the Justice noted required first policy objective standard because, of exclusionary the two phrases in the policy, the first phrase exclusionary applied to injury "reasonably” expected, and the coun- terpoised the first phrase to exclusionary the sec- phrase ond that applied if the was "in fact Therefore, intended.” phrase require the first must application of an objective standard the word "reasonably” meaning loses its and the second phrase Id. exclusionary at 709. redundant. On hand, the other the policy exclusion from the second policy did not contain the word "reason- ably,” but phrase instead employed the "from the standpoint of the insured.” language required This application of a subjective standard. Id.
. language plaintiff’s policy places the policy somewhere between policies the two at issue Freeman. in Although policy the not employ does the term "reasonably,” phrase the "from the standpoint Yet, of the insured” is also absent. even without these aids we find that the definition of in plaintiff’s "occurrence” policy requires also the application of a subjective standard. The policy states that it applies to . . "bodily injury . neither expected nor intended the insured.” (Emphasis added.) The manner in policy which the employs the phrase the "by suggests insured” that the emphasis of the policy is on whether the insured expected or intended the injury. in Auto-Owners Ins
Additionally, supra at 567-568, a majority of this that Court held a policy " exclusion for injury 'expected or an 450 Mich op Opinion the Court unambiguous requires person,’ insured . . . no substantial intent We find subjective language policy exclusion difference between disputed phrase in Churchman in "occurrence.” definition plaintiff’s policy’s Therefore, of "occur- we the definition hold plaintiff’s requires application in rence” there is no evi- Because subjective of a standard. in the trial the child actor stage dence at this from the harm that resulted subjectively intended assaults, judgment on the basis summary is denied. policy’s definition of "occurrence” EXCLUSION INTENTIONAL-ACTS poli- next consider whether The Court must coverage for intentional-acts exclusion denies cy’s exclu- at The intentional-acts the assaults issue. parts. has two sion bodily injury property dam- We do not cover
age: 3. Either: intentionally by caused or at the direction a. insured, or
an resulting any caused b. from occurrence intentional act of an insured results where reasonably are foreseeable. sepa- part will consider of the exclusion We each rately. Court the lan- previously interpreted
This has In Putman v part the exclusion. guage a of Zeluff, 553, 557; (1964), barring Court held an exclusion recovery *8 the intentionally for "caused or at direc- coverage only the when tion of insured” excluded v Diehl Ins Opinion of the Court the insured caused the injury intentionally. Id. at part plaintiff’s 555. the Because first of exclusion Putman, same as the exclusion in the first part of only applies the intentional-acts exclusion assailant if the assailant cause the injury. showing Because there is no evidence the assailant intended the injury, first part plaintiff’s of intentional acts exclusion does bar coverage. not
However, this yet Court has not interpreted part ofb the exclusion. On the of part basis b’s lan- guage, two elements are necessary before an act is First, excluded. the "occurrence” must result from an insured’s intentional act. This element is satis- in present fied case in that the assailant Second, intended the sexual assaults. the results must be "reasonably question foreseeable.” The we is, face what By standard should we measure reasonable foreseeability?
Answering
question,
this
guided
we are
by three
principles
First,
of
policy interpretation.
insurance
although the court cannot create an
in
ambiguity
policy,
otherwise clear
if the policy contains an
ambiguity,
ambiguity will be construed
Corp
insured. Arco Industries
favor
v Amer-
ican
Motorists Ins
395,
402-403;
(1995). Second,
NW2d 168
Court strictly
con-
against
strues
the insurer
exemptions
that pre-
Vanguard
coverage
general
clude
risk.
Clarke,
Co
438 Mich
We reach
ap-
when
ambiguous
is
foreseeable”
"reasonably
apply
to
be read
could
to a child.
plied
to
reasonably foreseeable
the result
is
either when
adult,
is reason-
the result
or when
objective
an
the
Because
child.
to a similar
ably foreseeable
ambiguous and
is
foreseeable”
phrase "reasonably
will
exception,
we
an
it
is contained
because
a
apply
and
of the insured
it
in favor
construe
standard.
objective-subjective
mixed
rule
the
required by
is also
This mixed standard
unlikely
find it
expectation. We
of reasonable
exclu-
reading the intentional-acts
policyholder
a
child’s
that a covered
reasonably expect
sion would
an
adult
judged by
objective
actions would be
results. The
unexpected
the
because of
standard
to
held to
is for a child
be
expectation
reasonable
than an adult.
foreseeability
of
lesser standard
the
agree
we
with
principles,
these
Applying
negli-
the
adapt
choose to
Appeals
of
and
Court
of
concept
children
standard
for
gence
insur-
plaintiff’s
under
foreseeability
fore-
reasonably
is
a result
policy.
ance
Whether
question
"a
of fact
a child should be
seeable to
it on
basis
which is to determine
jury,
intelli-
age, ability,
...
a child of
whether
[like]
been
reasonably have
experience
gence
like circum-
under
injury]
to [foresee
Witbeck, 253, 255;
Burhans v
stances.”
(1965). Therefore,
the terms
under
134
225
in
374
253;
655;
minors under
crimes.
plaintiff’s policy
We do not wish
134 NW2d
INTENT TO
AS A
INJURE
MATTER OF LAW
Finally, we address plaintiff’s
contention
the intent
injure must
inferred as a matter
insurance,
of law.3 For purposes of civil liability
child,
when
adult sexually assaults a
the Court
*10
Appeals
of
has inferred the
injure
intent
to
Russell,
matter of law. State Mut Ins Co v
185
521,
526-527;
Mich App
462
785
The
Appeals
Court of
decision is
with
consistent
deci
many
sions in
other jurisdictions.4
agree
We
that
3
respect
applicability
Our decision with
to the
of the intent infer
interpretation.
ence is not
inference is a
insurance
on
based
of
existence
the
topic separate
interpretation
any
from
one
policy,
applicable
policies.
but
to all insurance
4
jurisdictions
Apparently
point thirty-six
at this
other
have also
adopted
sexually
the inference when an adult
assaults a minor. Those
Alaska, Arizona, Arkansas, California, Colorado, Delaware,
are
states
Florida,
Iowa, Kansas,
Illinois, Indiana,
Louisiana,
Georgia,
Kentucky,
Maine,
Nevada,
Oregon,
Minnesota, Missouri,
Massachusetts,
Nebraska,
Maryland,
York, Ohio, Oklahoma,
Hampshire,
Jersey,
New
New
New
Island,
Dakota, Texas, Vermont,
Pennsylvania,
South
Rhode
Virginia, Washington,
Virginia and
West
Wisconsin. See cases listed
Davis,
458,
Casualty
463-464,
in State
(Ala, 1993),
Farm
&
Co v
612 So 2d
n 4
following
authority,
and the
recent
more
Allen Automo
(Tex
Connecticut,
1994),
App,
bile
Co of Hartford
892
198
SW2d
Brubaker,
App
Auto-Owners Ins Co v
93 Ohio
3d
—
harm. The courts have con- objectively cluded that sexual misconduct with a minor is so Opinion Court injure where an to infer the intent should courts However, sexually con we a child. assaults adult injure not should intent to clude is the where a child a matter of law inferred as assailant.5 inferring law the assaults as a matter of We find that sexually a child where intent another inappropriate. Children, as a individual is capability group, to understand not have the do Additionally, consequences their sexual acts. the it parents expectation insured of the the reasonable defies policies suggest their insurance sexually the harm from certain could not cover motivated acts children. The undertaken their example present in which of a situation case is an expect coverage. parents insured deposition, that he child actor testified In a night up stayed at and watched "bad late had grandparent’s In house. one movie movie[s]” at his people "mating.” But when the child actor he saw saw people perceive movie, that the he did not harming "mating” each in the movie could be other. ago you’ve you minute Q. I think told us a television, right? mating people on
seen *11 A. Yes. hurting each they it Q. Did look like were
other? victim, substantially in harm to the minor certain to result society’s escape perpetrator be allowed to that cannot Hence, expected to know that. that he or she is determination of law in to harm as a matter these courts infer the intent involving liability cases minors.” misconduct insurance sexual (WD Wis, DeLeu, [Id., quoting Supp F 1016 Whitt v 707 1989).] 5 contrary jurisdictions re have reached note that other We also See, e.g., However, unpersuasive. Allstate these cases sults. we find (MD Fla, 1989), Bailey, Supp Co v 665 Allstate Ins 723 F Ins Co v Boelfs, (D Alas, 1987), Supp n 4 F B B v Continental 1994). (Minn, Steele, supra, and DWH v 512 NW2d Fire Ins Opinion op the Court
A. No. having they it look like were fun? Did Q. A. No. watching you Q. Did ever think in that that hurting they were each other?
A. No. that did The child actor also testified his mother injure him not warn that such conduct could previously victim when his mother discovered that engaged sexually experimental in he had conduct with another mother similar
boy. The child actor’s only engage told him he in should not "[b]ecause such behavior it’s not nice.” Understanding parents and television often major lives, have a effect on children’s this child position found posed himself in which he was ex- images conduct, to media of sexual in which exploring yet conduct, he was himself in which he was uninformed of the sexual
potential con- sequences of such conduct. Because of a child’s developmental likely many status, it is mi- may exposed aspects activity, nors of sexual attempt experiment activity, yet such with capacity not have the to understand the conse- quences type of their sexual acts. This is the parents expect situation in which insured they protect could obtain insurance to them. Therefore, the inference of an intent to sexually matter should not law when a child is assaulted apply to child assailants.
REMEDY conclusion, In we remand this case to the circuit entry denying plaintiff’s court for motion for of an order
summary judgment.
Remanded.
*12
Levin, JJ., Brickley, with C.J. (dissenting). I Because believe that the for the Riley, provide coverage did
insurance contract injury not caused the insured child’s intentional respectfully Although conduct, I dissent. the ma- jority accepts the rule that this Court should infer injure an intent to as a matter of law for an adult sexually child, who assaults a it refuses to infer sexually this intent for a child who assaults an- majority other child. The concludes that the con- present tract covered the cause the insured child did not in the case be-
subjectively intend p disagree Ante, to harm the victim. I 687. with reasoning. case, this In this the male child was eight years either seven or old when he first forced perform him, the female victim1 child fellatio on years repeated and was nine old when he sexually against abusive conduct her.2 Because of inherently conduct, harmful nature his I would infer his intent to her as a matter of Appeals I law. would reverse the Court of and reinstate the circuit court’s decision grant summary disposition plaintiff insurer, in favor of the Exchange. Insurance
i
general principle
As a
law,
of insurance
years
The child victim was four or five
old when the first incident
occurred,
years
and was six
old when the second incident occurred.
majority mistakenly
only
states that
male child
was
six or
years
Ante, p
seven
amended
old at the time of the first incident.
681. The first
complaint brought by
parents alleged
the victim’s
first incident occurred in either
summer of 1988
1989 and that the
July
second occurred in
1990. Because the male child turned ten
1990,
years
years
eight
old in November
he would have been either seven or
years
old when the
incident
first
occurred and nine
old when
Diehl,
App
the second occurred. See Fire Ins
110;
An insurance is much the same as agreement other contract. It is an between the the parties in which a court will determine what agreement of the was and effectuate the intent Creech, 527, 530; parties. Eghotz 365 113 Mich the court must look (1962). Accordingly, 815 give meaning at the to all contract whole Michigan terms. Fresard v Millers Mut Ins 686, 694; 327 NW2d insurance contract between Insurance provided and the insureds that it would cover personal arising from an "occurrence”: liability damages pay We shall all from an occurrence pay legally
which the insured is liable to because damage bodily injury property or covered policy. expense At our we shall defend an insured against any may covered claim or suit. We investi- gate any settle claim or consider suit we proper. The contract defined an "occurrence” as: event, including sudden continuous or re- [A] conditions, resulting
peated exposure to the same damage bodily injury property in neither ex- pected by the nor intended insured. 450 Mich . Dissenting Opinion notes,3 majority correctly
As the
this Court has
exclusionary
provision,
held
insurance
containing
similar
definition
language
case,
present
requires
"occurrence”
Churchman,
application of a subjective standard.
However,
supra
in examining
at 567-568.4
virtually
provision
present
the same
"occurrence”
as
one, a plurality of this
stated more
Court
a
refined
version
by concluding
of this standard
subjective
standard was "policy-blended,”
distin-
guishable from purely subjective
standard. See
Piccard,
Frankenmuth Mut
Ins Co
547, 549-550;
(1992) (Riley,
J.,
3Ante, p 686.
4
Corp
See also Arco
Industries
American
Ins
Motorists
448
404,
(1995)
395,
407-409;
(holding
Mich
531
168
NW2d
that a similar
subjec
definition of "occurrence” in an insurance
created
contract
standard).
tive
5
Piccard,
The insurance contract
in
defined "occurrence” as "an
accident,
including
repeated exposure
conditions,
continuous or
to
bodily injury
property damage
which
results
neither
added.)
standpoint
(Emphasis
nor intended from the
of the insured.”
Group
Marzonie,
624,
See also Auto Club
Co v
Ins
640-
Boyle
(1994)
641;
(Riley, J., joined by
Mallett,
JJ.) (describing
policy-blended subjective
phrase
the
a similar
test for
exclusionary
Churchman,
provision);
(Riley, J.,
supra
in an
concurring) (describing
at 576-577
policy-blended subjective
the
test for a similar
phrase
exclusionary provision);
Freeman,
in an
Allstate
Ins Co
(1989)
(Boyle, J., joined by Brickley;
ii
A
when an adult
majority’s
I share the
view that
minor,
should infer
assaults a
this Court
sexually
regardless of
an intent
to harm as a matter of law
did not subjec-
whether
the insured claims that he
Id.,
689-690.6
tively
pp
intend to harm
victim.
However,
majority
apply
refuses to
rule
child on the
sexually
a child who
abuses another
grounds
capability
that children do not "have the
consequences
to understand
of their
sexual
"def[y]
acts” and because such
inference
expectation
insured
Id.,
. . . .”
690.
parents
p
Appeals
I
United
Court of
disagree. The
States
explained that
the rationale
Eighth
for the
Circuit
matter of law for this
inferring
intent
inherently
kind of sexual abuse "is based on
B B v Conti
harmful nature of child molestation.”
*15
1993).
(CA 8,
1288,
8 F3d
1293
Such
nental
of the
inherently
regardless
conduct
is
harmful
6
Russell,
521;
App
185
696 678 450 Mich Dissenting Opinion age of the who person Any inflicts injury. who person per- could decide to force another to form such a intimate sexually act must also have had the intent to cause harm because the harm words, inheres in the In abusive act itself. other act, where a intends to commit he also id. Here, intends the harm. See at 1293.7 there is dispute no male child intended to commit Thus, this act. I conclude that we infer his may intent to harm.8 majority
The
refuses
to extend this inference
7
victim,
parents
appellees,
of the
who are the
also cite Con
Nestor,
Indemnity
App
necticut
Co v
In this parents his for the nonconsénsual male child and negligent for parents conduct and sued the sexual or years Because seven supervision.10 under committing a tort capable older be may law, must defend himself Michigan the male child he forced the victim allegation from the he intention on him. If the perform fellatio contract, the insurance caused is covered ally defending him responsible the insurer would be in the suit.11 inferring
Moreover,
unpersuaded
I am
with
to harm would be inconsistent
child’s intent
parties. By
expectations
contract,
parties
entering
insurance
question
requires
jury
of fact
This Court
to determine
comparing
capacity
to commit a tort
whether a child had the
age, ability,
intelligence, and
child to what a child of the same
experience
reasonably
to do under similar
have been
171, 175;
DeMaestri,
App
circumstances. Id. See also Serra
agreed that only certain events would covered the insurer. Specifically, the insurance contract event,” including covers a "sudden continuous *17 repeated conditions, exposure to the same results in . . . neither nor "bodily by intended the insured.” The male child’s deci- sion to commit these abusive acts cannot reason- ably Also, be described as a event.” "sudden insureds could not have reasonably expected that their child’s inherently intentional harmful protected conduct would be their insurer when this child was subject also to tort liability under Michigan Burhans, law. See at supra 255.
B Furthermore, I believe that the majority’s ruling is inconsistent with this Court’s decision to con- clude that there was an intent an harm in analogous situation, where an adult intentionally another, committed an injuring act but claimed not to have had the subjective intent to harm the victim, either because incompetence, of mental see Churchman, supra, or diminished see capacity, Group Ins Co of Michigan Czopek, does not ex- majority plain why these cases are distinguishable. Churchman,
In 563-565, Frost, at supra Henry adult, an girlfriend’s insured murdered his former by shooting times, husband him four and then he killed himself. For purposes appeal, of the parties stipulated that Frost did not have the requisite capacity mental to form the criminal intent to commit murder at killing, the time of the apparently paranoid because he was a schizo- phrenic. 564, See id. at n 1. See also id. at 581 Fire Ins Dissenting Opinion (Levin, J., dissenting). This Court reviewed the contract, exclusionary provision of the insurance which stated that the insurer did not provide coverage for a "bodily injury property damage expected or person.” an insured Id. at 566. This Court concluded that an insane or men- ill tally expect can intend or the results meaning within the of the policy’s insurance exclu- sionary clause and that the insured did intend to seriously injure the victim capa- because he "was of foreseeing consequences ble his the[] [of acts] and understanding doing what he was . . . .” Id. at By 569-570. if this Court analogy, will find an intent to harm from the intent perform victim) act that caused the injury (shooting the i.e., incompetent, adult who is cannot distin- guish right between and wrong, surely Court *18 may also infer such an intent for a child who intentionally sexually abuses another. 592-595,
In Czopek, supra at Arthur Smith was drunk when he assaulted two police officers while resisting arrest. He admitted that he intended to arrest, resist but denied that he intended to bite or officers, strike the and he denied that he intended to harm them. This Court concluded that this assault was not an "occurrence” as defined insurance contract12 because it was not an acci- Thus, dent. Id. at 598. this Court decided that coverage insurance was barred. Id. The Court also rejected the contention that Smith’s intoxication intent, vitiated his but held that intoxicated "[a]n responsible for his actions” because oth- it "precedent erwise would create a of self-immu- 601. nity.” Similarly, Id. at this Court should not family protect immunize a that fails to its children require bodily injury The insurance contract did not that the not only be or intended but that it be an "accident.” Id. at 596. 450 Mich Dissenting Opinion
from pernicious the kinds of influences13 that culti- wrongful vate such sexual conduct.
The majority "it is likely reasons many minors may exposed to aspects of sexual activity, attempt experiment to with such activity, and yet not have to capacity understand Ante, consequences of their sexual acts.” p 691 added). (emphasis The majority overstates the like- lihood that this kind of sexually abusive conduct will occur and significance undervalues of the parent’s duty protect their children from expo- sure to irresponsible immoral or sexual images. Moreover, I fear that the majority trivializes harm inflicted by the child in this case by describ- ing his conduct as a sexual "experiment,” rather than stating the sad reality that it was a sexual assault.
CONCLUSION The majority’s result integrate fails to the inher- ently abuse, nature of this sexual does not harmful comport with the reasonable expectations of the parties in entering contract, and is not consis- tent with previous this Court’s treatment of simi- lar issues. I would conclude that the insurance policy does not cover the child’s intentional con- duct as an "occurrence” because his intent harm may be inferred from the nature of his acts. I would reverse the Court of Appeals decision and would reinstate the trial grant court’s of summary 13 majority got appar notes that the male child this idea from *19 ently viewing Ante, pornography. pp 690-691. After the male child young perform boy him, had made another mother fellatio on the child’s merely told him that such conduct was "not nice.” The majority’s decision to refuse to infer an intent to harm allows the possibility despite parents protected these will be their insurer vigilant teaching their failure to be respect their son respect dignity himself and for the of others. Fire J. Opinion by Dissenting plaintiff in favor of Insurance disposition Exchange.
Boyle Weaver, JJ., Riley, with concurred