J. C. PENNEY CASUALTY INSURANCE COMPANY, Plaintiff, Cross-defendant and Appellant, v. M. K., a Minor, etc., Defendant, Cross-complainant and Appellant; S. K. et al., Defendants, Cross-complainants and Respondents.
No. S010524
Supreme Court of California
Feb. 5, 1991
1009
Handelman & Bacon, Lawrence K. Handelman, Kenneth E. Bacon, Henry K. Gaus and Susan H. Handelman for Plaintiff, Cross-defendant and Appellant.
Horvitz & Levy, Peter Abrahams, Barry R. Levy, David M. Axelrad, Mitchell C. Tilner, Fred J. Hiestand, McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner, Jeffrey T. Hammerschmidt, Wasserman, Comden & Casselman, Chris Bennington, Glenn A. Brown, Jr., Richard D. Lester, Paul Kujawsky, Sonnenschein, Carlin, Nath & Rosenthal, Sonnenschein, Nath & Rosenthal, Paul E. B. Glad, Alan M. Posner and Michael J. Hassen as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant.
Monaghan & Metz, Monaghan & Strauss, David P. Strauss, Elizabeth E. Kline, Linda G. Workman, Michael H. Crosby and Brian D. Monaghan for Defendant, Cross-complainant and Appellant.
Ann Haralambie, Harry R. Levine, Douglas DeVries, Leonard Sacks, Bruce Broillett, Ian Herzog, Robert Steinberg, Roland Wrinkle, Judith A. Rowland, Linda Hughes, Robert C. Fellmeth, Terry A. Coble and Mark McWilliams as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant.
Lance C. Schaeffer for Defendant, Cross-complainant and Respondent S. K.
No appearance for Defendant, Cross-complainant and Respondent R. H.
EAGLESON, J.*—A 39-year-old man sexually molested a 5-year-old girl on 20 to 25 separate occasions over a period of approximately 9 months. The man admitted that he intended to molest the girl and that none of his sexual acts with her were accidents. He pleaded guilty to criminal charges (
The narrow issue before us is whether the insurer that issued a homeowner‘s policy to the molester is obligated under the policy to pay the amount of that judgment. The insurer contends the homeowner‘s policy and
We hold that insurers are not required to indemnify their insureds for damages caused by an insured‘s sexual molestation of a child.
FACTS
In September 1984, M. K., then a five-year-old girl, told her mother, S. K., that the girl had been sexually molested by an adult male neighbor, R. H.1 He was a friend of the mother and had often babysat the girl. R. H. was charged with eight counts of willfully committing lewd or lascivious acts with a child under the age of fourteen years in violation of
* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
The reservation-of-rights letter also stated J. C. Penney would appoint at its expense legal counsel to represent R. H. in the anticipated civil action against him by the molested child and her mother. J. C. Penney explained, however, that it intended to file a declaratory relief action against R. H. for the purpose of contesting coverage under the homeowner‘s policy. In January 1985, J. C. Penney filed a declaratory relief action against R. H. and the mother and child based on the policy exclusion for damages “either expected or intended from the standpoint of the insured.” J. C. Penney also relied on
The mother and child filed an action for damages against R. H. in June 1985, alleging causes of action in negligence and intentional tort. R. H. admitted to fondling the girl‘s genitals with his hands, holding the girl over his head with his thumb inserted into her vagina, and orally copulating her. A medical examination confirmed vaginal penetration, which caused a ruptured hymen, and possible anal penetration.
Before trial the mother and child dismissed all causes of action for intentional tort and proceeded to trial only on theories of negligence and negligent infliction of emotional distress. At the start of the mother and child‘s case, R. H. stipulated that he had been negligent as to the child. Based on that stipulation, the court entered a directed verdict in the child‘s action that R. H. was negligent. The issue of R. H.‘s negligence as to the mother was submitted to the jury, which in special verdicts found that R. H. was negligent and that his negligence was a legal cause of damage to the moth-
J. C. Penney‘s declaratory relief action was tried in May 1987. The trial court received evidence as to R. H.‘s state of mind when he molested the child. More specifically, R. H. testified in deposition, admitting the following: ”Question: You intended to do what you did, correct? Answer: Yes . . . Question: And you knew at the time you were doing these things that they were wrong; Isn‘t that correct? . . . Answer: Yes, I knew it was wrong . . . Question: And after most of these incidents, you would generally go to the bathroom to relieve yourself? Answer: Generally, yes. Question: Sexually? Answer: Yes. Question: Because you were aroused by what had happened? Answer: Yes.” R. H. also testified, however, that he did not intend to harm the child, and a psychologist testified likewise as to R. H.‘s intent.
The trial court did not base its decision on the evidence as to R. H.‘s state of mind. Rather, the court found that J. C. Penney was bound by the jury‘s determination in the underlying action that R. H. had been negligent as to the mother because that issue had been fully litigated. In the child‘s action, however, the court concluded that, because R. H.‘s negligence had been stipulated rather than litigated, there was merely a presumption of negligence that J. C. Penney was entitled to overcome by proper proof. The court further concluded that a violation of
Both J. C. Penney and the child appealed. The Court of Appeal reversed the judgment in its entirety. The court unanimously held that J. C. Penney is not collaterally estopped from denying coverage as to either the child or mother because J. C. Penney defended the underlying action pursuant to a timely and adequate reservation of rights to deny or disclaim coverage. By a divided vote, the Court of Appeal also held that insurance coverage for
J. C. Penney petitioned this court for review of the Court of Appeal‘s decision that insurance coverage for child molestation is not precluded as a matter of law. In their answers to the petition (
DISCUSSION
I. Effect of the underlying judgment against the insured
J. C. Penney defended the underlying action against R. H. pursuant to a reservation of the right “to deny or disclaim coverage.” Defendants in the present action (the mother and child) do not dispute that the reservation of rights was timely and adequate to preserve the issue of whether coverage is precluded under the intentional acts exclusions of
“[I]f the insurer adequately reserves its right to assert the noncoverage defense later, it will not be bound by the judgment. If the injured party prevails, that party or the insured will assert his claim against the insurer. [Footnote omitted.] At this time the insurer can raise the noncoverage defense previously reserved.” (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 279.) As the Court of Appeal noted, the quoted statement in Gray, although dictum, has long been the established law of California. (Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1319; Val‘s Painting & Drywall, Inc. v. Allstate Ins. Co. (1975) 53 Cal.App.3d 576, 585-586.)
To overcome the rule that an insurer does not waive its right to deny coverage, an insured must show that, after the insurer reserved its rights, “. . . the insurer either intentionally relinquished a known right, or acted in
Defendants attempt to avoid the no-estoppel rule by arguing that J. C. Penney wrongfully interfered with R. H.‘s right “to control his defense” of the underlying action, in particular, with his Cumis counsel‘s attempt to settle that action. (San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358.)4 An alleged dispute between an insurer and its insured as to proper litigation strategy provides no basis for a third party to assert that the insurer waived its reserved right to deny coverage. The purpose of requiring Cumis counsel is to protect an insured‘s interest. If J. C. Penney breached a duty to its insured by interfering with or discharging Cumis counsel, the insured is the proper party to seek redress. (R. H., who cross-complained against J. C. Penney in this declaratory relief action, did not seek to recover damages based on the alleged mishandling of Cumis counsel.) R. H. did not assign to defendants any rights he might have with regard to Cumis counsel.5 We have repeatedly held that “[I]n the absence of an assignment a third party claimant cannot bring an action upon a duty owed to the insured by the insurer.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 889; Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 943-944.)
We reiterate the rule that an insurer that timely and adequately reserves its right to deny coverage and that does not subsequently intentionally waive its reservation of rights is not collaterally estopped by a judgment in favor of a third party against its insured. J. C. Penney is not collaterally estopped to deny coverage in this action for declaratory relief.
We turn now to the primary issue addressed by the parties and numerous amici curiae: Is liability coverage for R. H.‘s molestations of a child excluded by the terms of the insurance policy and
We conclude there is no coverage as a matter of law. No rational person can reasonably believe that sexual fondlings, penetration, and oral copulation of a five-year-old child are nothing more than acts of tender mercy. Except in the present case, every court to decide this issue under California law has held that a homeowner‘s insurance policy does not provide liability coverage for child molestation. The courts of many other states also have considered the issue and, almost without exception, have held there is no coverage.
A. Insurance Code section 533
Negligence is often, perhaps generally, the result of a “willful act,” as the term is commonly understood.11 For example, “An ordinary consequence of driving an automobile without the exercise of ordinary care or an intentional violation of a statute (speed in excess of the maximum speed limit), is injury to the person or property of the driver or a third person. Certainly no one would contend that an injury occasioned by negligent or even reckless driving was not accidental within the meaning of a policy of accident insurance . . . .” (Meyer v. Pacific Employers Ins. Co. (1965) 233 Cal.App.2d
(9) “It is settled that ‘wilful act’ in
In short,
B. Our prior decisions
The reasoning of prior decisions under
Clemmer, supra, 22 Cal.3d 865, arose from the killing of a physician (Dr. Clemmer) by his employee (Dr. Lovelace) after an employment dispute between them. The court stated the key facts as follows: “[Dr. Lovelace] greeted Dr. Clemmer, then shot him twice. These shots were followed by two more shots. Finally, Dr. Lovelace knelt close to the victim and at close range shot him in the head. The gun was placed on the ground. Dr. Lovelace remarked that he knew what he was doing and that Dr. Clemmer was destroying him professionally.” (Id., at p. 872.) Dr. Lovelace was convicted of second degree murder.
Dr. Clemmer‘s widow and son subsequently obtained a wrongful death default judgment against Dr. Lovelace. They then sought to recover the amount of the judgment from Dr. Lovelace‘s liability insurer. The insurer contended the killing was an intentional act and that coverage was excluded by the policy and
The portion of Clemmer, supra, 22 Cal.3d 865, on which defendants rely is the court‘s treatment of the insurer‘s contention (on its cross-appeal) that the trial court had erroneously instructed the jury on the issue of the insured‘s willfulness. The verdict form asked: “‘Was the death of Dr. Clemmer caused by a willful act of Dr. Lovelace?‘” (Id., at p. 886.) The jury was instructed that, “‘If you find by a preponderance of the evidence that Dr. Lovelace had the mental capacity to intend to shoot and harm Dr. Clemmer when he caused his death, as well as the mental capacity to govern his own conduct, you will answer this question “Yes.“‘” (Ibid.) The insurer contended this instruction improperly required the jury to find a specific intent to kill in order to find a willful act by the insured. We rejected the contention, noting that it ignored the language of the instruction, which spoke
Clemmer, supra, 22 Cal.3d 865, does not support defendants’ contention. The brief reference in Clemmer to a “preconceived design to inflict injury” must be read in context. The inquiry in Clemmer was limited to the unresolved mental capacity of the insured, i.e., whether he was legally sane when he committed the killing. There was no issue as to whether the insured intended to shoot his victim five times (including once in the head at close range) but not to harm the victim. The dissenting Court of Appeal justice in this case correctly recognized that “the only question in Clemmer was the mental capacity of Lovelace to intend the act; there was no holding by the Supreme Court in Clemmer that intent to injure, standing alone, was a dispositive issue. . . . [¶] The discussion on subjective and objective intent is misplaced unless one has evidence regarding a lack of intent to commit the act itself as was present in Clemmer where the defense at both the criminal and civil trials was that Lovelace was insane and did not have the mental capacity to perform the act.” (Italics added.) Other Court of Appeal decisions denying coverage for child molestation have also recognized that the Clemmer discussion of a “preconceived design” was limited to the insured‘s mental capacity to commit the wrongful act. (Allstate Ins. Co. v. Kim W. (1984) 160 Cal.App.3d 326, 333-334.)
The Clemmer court, supra, 22 Cal.3d 865, took the phrase “preconceived design to inflict injury” from Walters v. American Ins. Co., supra, 185 Cal.App.2d 776. In Walters, an insured was seeking reimbursement of the amount paid to a third party to settle the latter‘s claim that he had been battered by the insured. The insured admitted he had intentionally struck the third party but claimed that he had done so in self-defense. The insurer contended the self-defense motive was irrelevant, because the insured‘s intentional act of striking the third party was sufficient to exclude coverage. The Walters court disagreed: “If plaintiff [the insured] acted in self-defense then although he ‘intended the act,’ plaintiff acted by chance and without a preconceived design to inflict injury . . . [A]n element of wrongfulness or misconduct is connoted by an exclusion provision drafted as in the present case. Such a construction would also be consonant with the public policy provision in
The other decision cited in Clemmer, supra, 22 Cal.3d 865, in connection with the notion of “preconceived design” was Meyer v. Pacific Employers Ins. Co., supra, 233 Cal.App.2d 321 (Meyer). The phrase “preconceived design” is not in Meyer and, in any event, that case also fails to support defendants’ view.12 The Meyer court did not base its decision on either
The plaintiffs then sought to recover the amount of their judgment from the drillers’ liability insurer. It was undisputed that the drilling was intentional, but there was no evidence the drillers intended to harm the plaintiffs’ property. (As noted above, the first trial court found they had been unaware of the vibrations.) The Court of Appeal held the damage was an “accident” within the meaning of the policy, stating that if “the damage or injury is not intentional and is unexpected it is accidental in character.” (Meyer, supra, 233 Cal.App.2d at p. 327.) Meyer does not support defendants’ view that coverage applies unless the insured acted with a subjective intent to injure. To the contrary, Meyer makes clear that coverage is excluded in this case. The court explained that if the drillers “. . . had not only intentionally trespassed on plaintiffs’ property but had by design destroyed a crop or improvement thereon it could not be held that they could assert that the damage was accidental . . . .” (Id., at p. 326, fn. 2.) For example, the trespassers could not intentionally set fire to a crop and then disclaim any
Properly understood, Clemmer, supra, 22 Cal.3d 865, and the cases on which it relied do not support defendants’ view. Because the wrongful act of child molestation is itself the harm,
C. Court of Appeal molestation decisions
The issue was first presented in Allstate Ins. Co. v. Kim W., supra, 160 Cal.App.3d 326 (Kim W.), where, as in this case, an insured admitted child molestation in violation of
Except in the present case, every court since Kim W., supra, 160 Cal.App.3d 326, 332-333, has agreed that under California law child sexual molestation is not covered by a homeowner‘s liability policy. (Fire Ins. Exchange v. Abbott, supra, 204 Cal.App.3d 1012, 1022-1025; Allstate Ins. Co. v. Gilbert (9th Cir. 1988) 852 F.2d 449, 453; State Farm Fire & Cas. Co. v. Estate of Jenner (9th Cir. 1989) 874 F.2d 604, 607; State Farm Fire and Cas. Co. v. Abraio (9th Cir. 1989) 874 F.2d 619, 623; see generally Cal. Judges Association, Insurance Litigation (Rutter Dec. 1-3, 1989, San Diego) p. 13 [noting consistent denials of coverage for molestation].)14
Properly understood, defendants’ argument is based not on the insured‘s intent, but on his motive. The gist of the argument is that his molestations were something akin to a misguided show of affection. In other words, his intent was to have sex with a child, but his motive was wholesome. (11) Motive is irrelevant for purposes of
D. Other states’ decisions
Although we are not bound by decisions of other states’ courts, particularly in a case of statutory construction, they do reflect that our decision is in the mainstream on this issue. (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 740-742; Delaney v. Superior Court, supra, 50 Cal.3d 785, 799, fn. 9.) To allow coverage for child molestation would be contrary to the almost unanimous rule in other states. (See generally 11 Ins. Litigation Rptr. (Shepard‘s/McGraw Hill June 1989) 289, 290-291.) We are not aware of any decision by a state‘s high court that allows coverage for child molestation. (Allstate Ins. Co. v. Troelstrup (Colo. 1990) 789 P.2d 415, 419; Landis v. Allstate Ins. Co. (Fla. 1989) 546 So.2d 1051, 1053.)15
The out-of-state authority was extensively reviewed recently in Fire Ins. Exchange v. Abbott, supra, 204 Cal.App.3d 1012, 1025-1028. We need not belabor the point with further analysis of those cases. Suffice it to say that in denying coverage other courts have relied in large part on a realistic view of child molestation. The view was well put by a Florida justice: “. . . I am absolutely unwilling to deny the foreseeability of injury to a child who is subjected to sexual abuse. It defies human response and sensitivity to conclude that the inevitable product of the sexual molestation of a child is not intended. That conduct inescapably inspires some response in the minor victim. Whether the response is a precocious excitation of libido, an utter revulsion or simply confusion, the child suffers grave psychological injury. Indeed, the fact that the ultimate goal of this litigation is to acquire funding to reconstruct Nicole‘s [the child‘s] emotional status is a testament to the soundness of my urging that we not accord slavish adherence to a principle [subjective intent to harm] that simply does not fit the context. The damage Nicole suffered flowed just as surely from Page‘s criminal acts as if he had taken his fist or a club and struck her in the face.” (Zordan by and through Zordan v. Page (Fla. Dist. Ct. App. 1986) 500 So.2d 608, 613 (dis. opn. of Frank, J.).) We agree.16
Defendants and their amici curiae argue at length that psychiatric testimony would show that child molesters are really sheep in wolves‘s clothing—that their abuse of children is an attempt at affection. We are reluctant to venture into uncertain territory still being explored by psychiatrists. We note, however, that testimony, psychiatric or otherwise, that no harm was intended flies “in the face of all reason, common sense, and experience.” (CNA Ins. Co. v. McGinnis (1984) 282 Ark. 90, 691; Fire Ins. Exchange v. Abbott, supra, 204 Cal.App.3d 1012, 1028 [characterizing such psychiatric testimony as being “inherently incredible“].) Such testimony is also irrelevant in light of the rule that a child molester‘s subjective intent is irrelevant to the question of insurance coverage. (204 Cal.App.3d at p. 1029; Allstate Ins. Co. v. Troelstrup, supra, 789 P.2d 415, 419.) Moreover, if psychiatry can satisfactorily corroborate defendants’ view and demonstrate the need for a change in the law, the proper forum is in the Legislature, where broad-based, perhaps conflicting empirical evidence can be presented and considered.
F. Conclusion as to child molestation coverage
We hold that as a matter of law
Some of the amici curiae briefs in this case have suggested that a decision denying coverage will encourage insurers to deny coverage for many other types of wrongdoing. Not so. We cannot emphasize too strongly to the bench and bar the narrowness of the question before us. The only wrongdoing we address is the sexual molestation of a child. Whether other types of wrongdoing are also excluded from coverage as a matter of law by
DISPOSITION
We affirm the judgment of the Court of Appeal to the extent that it reversed the trial court judgment in favor of the mother, S. K. We reverse
Lucas, C. J., Mosk, J., Panelli, J., Kennard, J., and Arabian, J., concurred.
BROUSSARD, J.—I dissent.
Our courts have long enforced insurance contracts for intentional and criminal acts causing injury. Rather than read
The majority repudiate Clemmer. They hold that
The majority hold that the insured‘s intent to harm must be inferred from acts of child molestation because they are inherently harmful. (Maj. opn.,
I
The first portion of the section is reasonably subject to two constructions. First, it may be read as providing that if the insured‘s liability is predicated upon an intentional act, i.e., the insured intended to do the act that resulted in the loss, insurance coverage is prohibited. Such a construction has long been rejected by the courts. This would mean that if the insured intended to drive above the speed limit, there could be no insurance. The majority do not dispute that this is not the proper construction of the code section even when the act is criminal. (See maj. opn., ante, at pp. 1020-1021; Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50; Meyer v. Pacific Employers Ins. Co. (1965) 233 Cal.App.2d 321, 327.) When speeding or reckless driving causes an accident, it is ordinarily clear that the insured did not intend to cause the loss and that the insured should be permitted to purchase insurance against the loss.
The second plausible construction of the language of the section is that the word “wilful” in the section relates to the caused loss or that the “act” referred to as a “wilful act” is an act intended to cause the loss. This is the construction placed on the section by Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d 865, 887, and the authorities it relied upon and those subsequently relying upon it. (See, e.g., Peterson v. Superior Court, supra, 31 Cal.3d 147, 158-159; Allstate Ins. Co. v. Overton, supra, 160 Cal.App.3d 843, 849; Congregation of Rodef Shalom v. American Motorists Ins. Co. (1979) 91 Cal.App.3d 690, 695 et seq.; Escobedo v. Travelers Ins. Co. (1964) 227 Cal.App.2d 353, 360; Walters v. American Ins. Co. (1960) 185 Cal.App.2d 776, 783.) It is also the construction of the Court of Appeal in the instant case.
While the language of
Not only are the words of the code section contrary to the majority‘s test, but the principle established by the section furnishes no support for the test. The fact that
It may be true that as to any particular act of misconduct causing injury, the act is more blameworthy when done with intent to injure than when done intentionally but without intent to injure. In this light,
A vague test based on degrees of blameworthiness would be so difficult to administer justly that it should be rejected out-of-hand. Attempting to draw a line between misdemeanors or between felonies on the basis of reprehensibility or repugnance on a case-by-case basis can only bring confusion and uncertainty to insurance law.
In any event, we rejected such a test in Peterson v. Superior Court, supra, 31 Cal.3d 147, 158-159. In that case we held that an intoxicated driver could be liable for punitive damages when it is shown that he performed an act from which he knows, or should know, it is highly probable that harm will result. Obviously, punitive damages are permitted only in cases involving the most reprehensible and repugnant conduct. In addition to the great likelihood of harm, which in fact occurred, the conduct was criminal. While
A “wilful” act or loss is a reference to subjective intent, and, absent a clear showing of legislative intent to the contrary, it cannot reasonably be interpreted to establish tests of “inherently harmful.” In short, the test established by the majority opinion finds no support in the language of the code section and must be rejected for this reason alone. To read “inherently harmful” into this straightforward statute can only be categorized as judicial legislation.1
Since there is no history or strong public policy indicating that the Legislature inadvertently used the language it chose, the plain language of the code section should end the case.
Moreover, even if there was some ambiguity in the language of the code section permitting it to be reasonably construed to prohibit insurance of “inherently harmful” conduct, considerations of the interests and rights of the innocent victims of child abuse and other crimes should preclude our doing so.
Liability insurance serves two functions in our society. It not only provides a fund that the wrongdoer may resort to in order to meet his just obligation, but also provides compensation for the victims of wrongful and criminal conduct. Often, the wrongdoer‘s insurance is the only way the innocent victims of crime, including child molestation, may recover compensation for medical expenses, their disabilities and their injuries. Particularly as to child molesters, the wrongdoers are likely to be incarcerated for lengthy periods of time (see
Concern for the innocent victims of crime outweighs the policy of deterrence or penalizing the wrongdoer and strongly militates against an
If there were any doubt as to the proper balance of competing policies, it is set at rest by our Constitution.
The majority point to some out-of-state authorities which have denied liability coverage for child molestation under the wording of the policies involved, and to some permitting liability. (Maj. opn., ante, at p. 1027; compare MacKinnon v. Hanover Ins. Co. (1985) 124 N.H. 456 [permitting recovery] with Vermont Mutual Ins. Co. v. Malcolm (1986) 128 N.H. 521 [denying coverage].) Those cases are not concerned with a statutory prohibition on insurance but with the interpretation of contract provisions.2 In a related situation, we have recognized that a psychiatrist‘s malpractice insurance might apply in a case charging sexual misconduct. (Waters v. Bourhis (1985) 40 Cal.3d 424, 433-436.)
In sum, the language of
II
Upon analysis, the majority theory that we must infer intent to harm from child abuse fares no better. We cannot properly infer from child molestation the intent to harm as a matter of law in the face of an overwhelming record establishing that there was no intent to harm or even in the absence of such a record.
The physical acts of child molestation are not detailed in the statute; rather, the crucial factor is the intent of the actor. The physical acts may be of a wide variety, including acts which are commonly engaged in for medical or hygienic purposes by parents, siblings, and pediatricians. However, when such acts are done with the specified intent, the conduct is criminal. The point is illustrated by the instant case where 25 of the acts of child molestation occurred while the insured was playing with the child. He touched or fondled her vaginal area while she was fully clothed. Absent criminal intent, the physical conduct would be entirely innocent. I cannot agree that the physical conduct is “inherently harmful” or that we must as a matter of law infer from such conduct, even when coupled with an intent to gratify sexual desires, that there was an intent to harm.
The expert testimony was all to the effect that there was no intent to harm. The majority opinion quotes the statements from other cases that such testimony “‘flies in the face of all reason, common sense, and experience’ and is ‘inherently incredible.‘” (Maj. opn., ante, at p. 1028.) There is nothing in our record to justify this shocking attack on the science of psychiatry. Neither the majority opinion nor the cited authorities provide any empirical evidence for such an attack, and the experience involved is that of child molesters and those who work with child molesters, not judges. In the absence of experience, judges should not undertake to practice psychiatry. The opinion also states that the psychiatric testimony was “irrelevant” (ibid.) but, as pointed out above, much of the physical conduct was not inherently harmful. It consisted of physical acts which, if done without criminal intent, would be lawful and innocent and not harmful at all. I do not find any reasonable basis to reject the expert testimony, and we should not do so.
In cases of child molestation there is a danger that juries, out of outrage at the conduct of the molester, will inflate damages in an effort to punish him. The danger that juries may award excessive damages, however, does not justify withholding insurance benefits from the innocent victim of the crime. Our legal system in many situations has dealt with the problem of excessive damages. The jury in molestation cases should be carefully instructed that compensatory damages must compensate for the injury suffered and may not be used to punish the wrongdoer. Further, trial judges are authorized and fully competent to deal with excessive awards.
In my view, the language of
When insurers have collected premiums and agreed to indemnify liability imposed for child molestation, we should require them to perform their promises. The interests and rights of the innocent victims of child abuse preclude our exonerating such insurers.