Cheryl J. Harpy sued her father, Joseph T. Harpy, Jr., in the Circuit Court for Anne Arundel County for (1) assault and battery, (2) intentional infliction of emotional distress, and (3) negligence. The factual allegations in all three counts were, in essence, that during the years 1979 through 1984, when Cheryl was between 9 and 13 years old, her father sexually abused her in various ways, including sexual intercourse.
During the period covered by the alleged abuse, Nationwide Mutual Fire Insurance Company had issued two poli *476 cies of homeowner’s insurance to Mr. Harpy. Harpy made demand of Nationwide that it provide a defense in the sexual abuse case based on the aforesaid insurance policies. Nationwide filed a complaint for Declaratory Judgment, seeking a declaration that neither of the policies affords any defense or coverage. Pursuant to Rule 2-501, Nationwide moved for summary judgment. Based on the pleadings, the contracts of insurance and the affidavit of Mr. Harpy, the trial court (Goudy, J.) determined that there were no disputes as to material facts and that Nationwide was entitled to judgment as a matter of law. From the judgment entered on those findings, this appeal ensued.
Appellants present two issues for our consideration, which they state as:
I. Was it appropriate for the court to decide the Declaratory Judgment action?
II. Assuming that it was appropriate for the court to decide the Declaratory Judgment action, did the court err in granting summary judgment to Nationwide?
We find no error, and shall affirm the judgment.
Facts
The undisputed facts of the case include the following. On 14 November 1980, Nationwide issued a policy of insurance to Mr. Harpy, insuring him against loss from damages for “negligent personal acts.” It promised to
[djefend with counsel of its choice any suit against an Insured alleging ... bodily injury, illness ... and seeking damages therefor. Such suit shall be defended even if groundless, false or fraudulent,
and to
pay on behalf of the Insured all sums which he shall become legally obligated to pay (1) as damages because of bodily injury, sickness or disease____
Excluded from the protection afforded by the policy were damages due to
*477 bodily injury, illness, or death or property damage caused intentionally by or at the direction of an Insured.... That policy was replaced on 14 November 1984 by a new
policy, which promised to pay “damages the insured is legally obligated to pay due to an occurrence,” and to “provide a defense at our expense by counsel of our choice.” That policy excluded coverage for personal liability as to bodily injury or property damage
which is expected or intended by the insured.
In his answer to the declaratory judgment action, Mr. Harpy admitted “pleading guilty in the Circuit Court for Anne Arundel County” to charges of sexual child abuse. In his affidavit, filed in response to Nationwide’s motion for summary judgment, he swore
that I have never taken any action with regard to my daughter, CHERYL J. HARPY, in which I intended or expected that she would suffer the type of injuries that she has alleged in her Complaint against me. [emphasis added]
The injuries alleged in the negligence count of the complaint in the underlying tort action were that Cheryl suffered “extreme and severe emotional distress and mental disorder, requiring necessary treatment by mental health practitioners, in the past, present and in the future.”
Further facts will be supplied as necessary.
I
Declaratory Judgment Action is Appropriate
The General Rule
The Maryland Uniform Declaratory Judgments Act, Maryland Code (1984 Repl. Vol.) §§ 3-401 through 3-415 of the Courts and Judicial Proceedings Article, gives the court jurisdiction to construe a written contract and declare the rights of the parties under it. Section 3-406;
Northern Assurance Co. v. EDP Floors,
The court may grant this discretionary relief in order to terminate an actual controversy if “[a] party asserts a legal ... right ... [that] is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.” § 3-409(a)(3) of the Courts Article. Thus, when interested parties advance adverse claims upon a state of facts that has accrued, a justiciable controversy exists, and a trial court may enter a declaratory judgment.
The Act has been utilized frequently in the construction and interpretation of insurance contracts. All the requirements of the Act are present in this case. Mr. Harpy is the named insured in policies issued by Nationwide. Those policies require Nationwide to provide both a defense and indemnification as to claims within their coverage. Harpy asserts that at least one of the claims against him by his daughter is covered. Nationwide says it is not, and seeks an interpretation of its rights under the policy.
The “Brohawn” Exception
In what erroneously has been perceived by many as a departure from established law, the Court of Appeals said, in
Brohawn v. Transamerica Ins. Co.,
In
Brohawn,
Ms. Brohawn was sued by employees of a nursing home for both assault and negligence. Her insurance policy excluded coverage for “any act committed by or at the direction of the Insured with intent to cause injury or damage to person or property.”
Cases in which this Court, relying on
Brohawn,
has held declaratory judgment inappropriate include
Allstate Ins. Co. v. Atwood,
In Allstate the issue of intentional battery as opposed to negligent contact had already been litigated in the underlying tort action, in which the insurer had elected not to participate. We said the question could not be relitigated in the declaratory judgment case. In Travelers Indemn. we said the factual determination of an employee status should have been decided in an underlying tort case. In Ohio Casualty the trier of fact in the tort case would determine whether Lee was acting as a director, stockholder or employee of the insured, and the resolution of that factual question would determine coverage. In all those cases the issue was not an interpretation of an allegedly ambiguous insurance policy. The issue was a factual dispute which necessarily would be resolved in the tort case.
The holding in
Brohawn
was further explained by the Court of Appeals in
St. Paul Fire & Mar. Ins. v. Pryseski,
*480 In determining whether a liability insurer has a duty to provide its insured with a defense in a tort suit, two types of questions ordinarily must be answered: (1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? (2) do the allegations in the tort action potentially bring the tort claim within the policy’s coverage? The first question focuses upon the language and requirements of the policy, and the second question focuses upon the allegations of the tort suit. At times these two questions involve separate and distinct matters, and at other times they are intertwined, perhaps involving an identical issue.
The “rule” ... that the insurer has a duty to defend if the allegations of the tort suit raise a “potentiality” that coverage exists, is generally applicable only to the second question set forth above. It may, however, be applicable to an issue raised under the first question set forth above if that issue must also be resolved in the underlying tort suit.
Normally, however, when the question of coverage or defenses under the language or requirements of the insurance policy is separate and distinct from the issues involved in the tort suit, the “potentiality rule” ... has no application. Instead, in a declaratory judgment action like the instant one, presenting an independent coverage issue under the terms of the policy, it is the function of the court to interpret the policy and decide whether or not there is coverage. If such a coverage issue depends upon language of the policy which is ambiguous, the court in the declaratory judgment action nevertheless must resolve that ambiguity in favor of the insured before it can conclude that the insurer has or had an obligation to provide a tort defense.
Pryseski and his employer, Sun Life Insurance Company of America, were sued in a tort action, alleging Pryseski had made “sexual advances towards the plaintiff.” Sun Life was insured by St. Paul Fire and Marine Insurance *481 Company. The policy also provided coverage for any employee of Sun Life “while acting within the scope of his duties,” subject to certain exclusions. St. Paul refused to defend Pryseski on two grounds: (1) he was not acting within the scope of his employment; and (2) his alleged conduct came within one of the exclusions in the policy. The Court held that the first question would be answered in the underlying tort case, but that the meaning of the exclusionary language in the policy was an issue to be resolved in the declaratory judgment action.
Similarly, in
Truck Ins. Exch. v. Marks Rentals,
While holding declaratory judgment inappropriate in
Haynie v. Gold Bond Bldg. Products,
The rule precluding a declaratory judgment to resolve an issue when there is pending another action in which the same issue can properly be resolved, is neither jurisdictional nor absolute. See Aetna Cas. & Sur. Co. v. Kuhl, supra, 296 Md. [446] at 449 n. 1,463 A.2d 822 [1983]; Watson v. Dorsey, supra, 265 Md. [509] at 512 n. 1,290 A.2d 530 [1972]; Grimm v. Co. Comm’rs of Wash. Co., supra, 252 Md. [866] at 638-639,250 A.2d 866 [1969]. [1] A declaratory judgment may be rendered to *482 decide an issue, even though the issue is presented in another pending case between the parties, in “very unusual and compelling circumstances.” A.S. Abell Company v. Sweeney, supra, 274 Md. [715] at 721,337 A.2d 77 [1975].
Appellant Joseph Harpy asserts that the issue of his intent to cause harm to his daughter will be decided in the tort case, and that decision, in turn, will decide coverage. We disagree. As will be explained in part II hereof, we think there is no factual issue to be determined in the tort case which would affect the question of coverage. Even if there were, we think this is one of those “unusual and compelling circumstances” justifying declaratory relief.
II
Summary Judgment
The trial court properly ruled that there was no dispute of material facts which could create any potentiality of coverage in this case. Appellants concede there is no coverage for assault and battery (Count 1) or intentional infliction of emotional distress (Count 2). They assert, however, that Joseph Harpy’s intent to harm his daughter is a disputed material fact relevant to the potentiality of coverage under Count 3 (negligence). As did the trial judge, we find this absurd. We completely agree with Judge Goudy’s holding that “for the [l]aw to define sex *483 with one’s nine to thirteen year old daughter to be anything but intentional injury is ridiculous.”
Relying on
Allstate Insurance Co. v. Sparks,
The word “intent” for purposes of tort law and for purposes of exclusionary clauses in insurance policies denotes that the actor desires to cause the consequences of his act or believes that consequences are substantially certain to result from it. In order for an act to be intentional, its consequences must be substantially certain to result as opposed to the feature of wanton acts that the consequences be only probably certain to result____
Sparks,
We fail to see how that holding supports appellants’ position in this case. There is no substantial certainty that one stealing gasoline will start a fire. There is, however, substantial certainty that sexual molestation of a child by her father over an extended period of time will cause that child to suffer serious harm.
See Reagan v. Rider,
*484 [a]s the probability of injury to another, apparent from the facts within his knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it reaches that substantial certainty of harm which juries, and sometimes courts, may find inseparable from intent itself.
Ghassemieh v. Schafer,
We have been referred to no Maryland case construing exclusionary language similar to that here in connection with facts similar to those in this case. Other courts which have done so have almost unanimously declared that sexual abuse is excluded from coverage by such policies whether an objective or subjective test is applied.
In
CNA Ins. Co. v. McGinnis,
The language in an insurance policy is to be construed in its plain, ordinary, popular sense, [citations omitted] *485 This means that the policy exception excludes coverage for injuries which the average run of reasonable people would expect or intend to inflict by engaging in the conduct in question____
We agree with the view expressed by the dissent in the Court of Appeals in this case, that for a stepfather in such a situation “to claim that he did not expect or intend to cause injury, flies in the face of all reason, common sense and experience.”
Fireman’s Fund Ins. Co. v. Hill,
In interpreting intentional act exclusions in insurance policies this court has held that it is not sufficient that the act was intentional. To be excluded from coverage, a person must have specifically intended to cause injury, although intent to injure will be found even if the actual injury is different in kind or more severe than that intended.
In
Rodriguez v. Williams,
which is expected or intended by the insured, but this exclusion does not apply to any act committed by or at the direction of the insured not intended to cause serious bodily injury.
The Supreme Court of Washington said that intent to injure, while normally a subjective determination under the wording of the policy, would be inferred to the insured in sex abuse cases, and that once the intent is inferred, it is unimportant that the scope of the injuries inflicted are greater than or different from the injuries which might objectively be expected. The Court held:
that the insured intends harm as a matter of law when he commits incest. Applying this test to the subject case, Williams admittedly intended to commit the act of incest which caused his stepdaughter’s injuries. Therefore, we hold that Williams intended to injure Daylette as a matter of law irrespective of his actual subjective intent. The exclusion in the subject homeowner’s policy applies, and the trial court was correct in denying coverage.
Cases from other jurisdictions granting declaratory judgment that similar conduct is excluded from coverage under like policies include:
Allstate Ins. Co. v. Kim W.,
All of the cases above cited granted declaratory relief, even though those states also adhere to the principle of
Brohawn
that declaratory judgments are generally inappropriate where the issue will be decided in another pending case.
See City of Cabot v. Morgan,
Appellants refer us to one case which appears to disagree with those cited. In
MacKinnon v. Hanover Ins. Co.,
We hold that declaratory judgment was appropriate under the facts of this case and that the trial court correctly granted summary judgment.
JUDGMENT AFFIRMED; APPELLANTS TO PAY COSTS.
Notes
1. In
Aetna Casualty & Surety v. Kuhl, 296
Md. 446,