*1 FARM FIRE AND CASUALTY STATE
COMPANY, Plaintiff-Respondent, Doe, Jane husband and John DOE and wife, individually parents of John and minor, I, I, a Defen- and John
dants-Appellants,
and wife, Roe, John Roe and Jane husband parents guardian and as natural I, ad litem of Jane Roe Intervenors- Appellants.
No. 22010. Idaho, Supreme Court of Boise, March 1996 Term.
Sept. Rehearing Dec. Denied Bistline, Offices;
Seiniger Bruce S. Law Boise, Seiniger and Breck appellants. W. argued. Bruce S. Bistline Burke, P.A., Boise, respon- Elam & argued. Dominick dent. Bobbi K. Opinion Substitute January Opinion Prior Dated The Court’s 3,1997, Hereby Withdrawn. SCHROEDER, Justice. declaratory judg- appeal
This is an from holding issued the district ment provide policies do applicable insurance injuries by a minor coverage for sustained of sexual contact with child as result child of the insured. Jane John minor Roe, individually guardian ad litem and as child, appeal the district for their minor declaratory asserting judgment, court’s this conduct is excluded by the insurance I. AND PRIOR
BACKGROUND PROCEEDINGS day operated a care and Jane Doe John Boise from in their residence in business *2 694 through
1973 August 1991. facility op- The sexual is policy coverage, abuse its outside asserting policies obligate city erated under that the do not both and it state licenses to indemnify against defend or the Does (12) the authorizing up care to twelve chil- allegations and claims in the action. Roes’ per day. year-old dren The three daughter petitioned The Roes to intervene in ac- of and Jane John Roe day attended the care tion, alleging that the Does did not have July from March 1988 1991. She was sufficient assets to cover the cost of defense at never the residence other as a than client pay any judgment. day care. granted The district court summary judg year-old The Does’ helped thirteen son out Farm, relying ment for State on Mutual of day at the care. He acknowledged that sex- Wilcox, 4, v. Enumclaw 123 Idaho P.2d 843 ual conduct (1992). with the daughter Roes’ occurred 154 The district court held that facility downstairs bathroom of the sexual abuse not an “accident” or “occur policy. rence” under the July late The court cited between 1990 and 1991. The Does’ legal Wilcox for the definition of “accident” son daughter told the “green Roes’ that a as it is policies: used insurance monster” would her if anyone. she told An accident within accident insurance July 1991 she told her mother what had an happening event without happened to day her at the care. State agency, happening through human or if (State Casualty Farm Fire Company which, agency, such an an event under the Farm) insured succeeding the Does under circumstances, is expected unusual and not policies. homeowners and umbrella insurance person happens. to whom it A Policy Homeowners No. 12-15-0041-8 comprehensive more “negli- term than (“Homeowners I”) 11, 1989, ran April from gence”, signification and in its common 10, through April 1990. It was renewed for unexpected word means an happening year 11, 1990, an April additional from design. without intention or 10, through April 1991. It was renewed in n. undesirable unfortunate (“Homeowners II”) form amended for a third unintentionally happening, caused and usu- 11, year 1991, 10, April through April ally resulting harm, injury, damage, or provided 1992. State Farm also the Does loss; casualty; mishap; automobile acci- liability umbrella Policy under happens unexpect- dents. An2. event that No. 12-27-1823-3 from June 1989 edly, plan without a deliberate or cause 11,1992. through June Granting Memorandum and Order Amended brought against The Roes suit the Does Summary Judgment Motion for (citing Wil assault, alleging legal theories of breach cox, (1992) 123 P.2d at Idaho 843 159 contract, entrustment, of negligent negligent (citations omitted)). re supervision, negligent misrepresentation, ferred to as “intentional acts of negligent notify failure to a business invitee analogous sexual abuse” to the conduct condition, dangerous of report a failure of Mr. Wilcox Wilcox. child abuse section 16-1619 of the held, The district court also on alternative Idaho Code and civil claims for commission grounds, that and indemnifica- defense conduct, of a criminal act lewd sexual tion of the Does were excluded under abuse, exploitation, injury sexual to a child Business Pursuits Exclusion the home- (I.C. 6-1701). Section State Farm policies, Operations owners the Business Ex- defense this action under a reservation policy clusion of the umbrella Child rights. grounded The Roes’ action was on Care Services Exclusion to all the daughter the sexual abuse of their and the alleged accompanying failure of John and II. identify prevent
Jane Doe to and to their son’s conduct. STANDARD OF REVIEW declaratory Farm brought judg-
State Summary judgment appropriate if mo- seeking evidentiary ment tions on facts action determination are based the same
695 issues, erage when claim made for an insured and on the same theories and when on brought against an insured based effectively suit is parties stipulate that there is no an “oc- defines an “occurrence.”1 issue material fact. I.R.C.P. accident, including exposure 56(c); Morrissey Haley, Idaho as an currence” conditions, bodily injury or (1998). which result in judgment Summary *3 lia- property damage.2 Under the umbrella proper is no issue of when there in- coverage is the bility policy, moving party is entitled material fact the damages for legally obligated pay to is sured judgment as a of Bunker Hill to matter law. an defines “loss” as America,, policy a “loss.”3 The 107 Co. v. Steelworkers United of personal injury or (1984). in that results 155, accident A Idaho motion for liabili- property damage.4 policy Each limits judgment summary must be denied reason “accidents;” however, poli- the ty coverage to people differing able could conclusions reach for “acci- cies do not set forth definitions conflicting or from the rec draw inferences dent.” Inc., ord of the case. Cates Albertson’s (1995). 1030, Upon
126 P.2d Idaho 895 1223 wilfully, in an insured acted Whether summary judgment, motion for all facts and maliciously, relieving tentionally the insur or must of inferences be drawn in favor the liability policy, the factual er of nonmoving party. Highland Perkins v. En Group Ins. v. Ses determination. Farmers (1991). ters., Inc., 511, 817 120 177 Idaho P.2d (1980). 914, sions, 422 100 Idaho 607 P.2d questions presented, are When of law pre of such a determination absence Court exercises free review and is bound judgment the insurer. summary for cludes court, by findings of but is free to Id. district court found that In this case the draw its own conclusions from the evidence constituted “intentional issue presented. Ins. Automobile Club Co. v. acts and was not an “acci of sexual abuse” Jackson, 874, 965, 876, 124 P.2d Idaho 865 “occurrence” under the dent” or (1993). 967 “accident” in This Court defined Wil III. cox, that, phrase or noting a word “[w]here has a in an insurance contract settled used THE AT DID CONDUCT ISSUE NOT meaning interpretation, legal that mean or AN CONSTITUTE “OCCURRENCE” ing interpretation given must be even or THAT WOULD CREATE LIABILITY possible.” interpretations are though other UNDER THE POLICIES. (1992) 8, (quot 123 at P.2d 158 Idaho 843 at Stein-McMurray Highlands coverage provision ing Ins. Inc. v. of Under State Co., 818, 820, liability P.2d 867 Ins. 95 520 policy Farm homeowner there is cov- Idaho during policy period. Repeated or contin- 1. COVERAGEL—PERSONAL LIABILITY exposure general to the same conditions uous brought against If is made or a suit a claim be one is considered to occurrence. bodily damage injury an for insured because Policy No. 12-15-0041-8 damage properly which occurrence, applies, we will: caused an liability. Coverage 3. L—Personal If 1. up liability pay limit to our 1. loss, legally obligated pay damages are damages legally for which the insured pay your we will net loss minus retained liable; and payment not exceed the limit. Our will expense by provide a defense our 2. Policy shown on the Declarations as amount of our counsel choice. Coverage Liability. L—Personal Limits— omitted). Policy (emphasis No. 12-15-0041-8 Policy No. 12-27-1823-3 "occurrence”, II 2. when used in Section 7. "loss” means an accident results accident, including policy, damage during an personal injury property of this means conditions, exposure injurious expo- period. results in: policy which This includes bodily injury; to conditions. sure a. damage Polity property No. 12-27-1823-3 b. 696 (1974)); City see also City pected Chubbuck v. consequences. The district court
Pocatello,
198, 201,
127
Idaho
899 P.2d
found the facts
acts
established “intentional
(1995).
policies may
Insurance
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of sexual abuse.”
is no
reason-
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legal
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able interpretation
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interpretations
are
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ly because
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definition. Id. at
The Wilcox Court referred to the following two definitions of “accident” “settled question do not afford cov- legal meaning interpretation:” erage because there no “occurrence.” unnecessary
Accident. to consider the Pur- Business *4 suits Exclusion of policies, the homeowners Insurance contract. An accident within Operations the Business Exclusion of the accident insurance hap- an event umbrella and the Child Care Services pening any or, agency, without human Exclusion to all of the happening through agency, such an event which, circumstances, is unusual and expected
not by person to whom it IV. happens. A more comprehensive term CONCLUSION “negligence,” than and in signi- its common fication the word unexpected means an grant The summary court’s happening design. without intention or judgment is affirmed. Costs appeal on are Attorney
awarded to State Farm. No fees appeal. are on awarded ... 1. an undesirable or unfortunate happening, unintentionally caused and usu- McDEVITT, C.J.,* JOHNSON and harm, ally resulting injury, damage, or JJ., WOOD, TROUT, Tern., J. Pro loss; casualty; mishap: automobile acci- concur. any happens unexpect- dents. event that edly, plan without a deliberate ADDENDUM ON DENIAL cause.... OF REHEARING (citations
I that I have been asked understand give pend- this affidavit in association with A: Yes. ing litigation may be and that this affidavit recommending referring Q: You are litigation. filed in that understand juvenile place? prosecution take offender, litigation age involves an A: Yes. victim, age than I have 8. Other investigation, Q: upon your So based any pertain- not reviewed factual material that an you came to the conclusion of-
ing the case been advised place? had taken fense pertaining factual to the other material A: Yes. case. The information in this was Q: your conclusion general affidavit is intended to be informa- were acci- not an accidental —these juvenile tion about sex offenders and [John I]? dental acts particular any person. information about *5 Yes.
A: Testimony B. of Officer: Q: qualified, that you Do based on feel Steiner, deposition of Detective say or not in this training, whether following question was asked: touching might particular situation the Q: you gain impression ever at all Did out accidental and then started any way [John that Doe had in I] gone to another level? intended hurt [Jane I]? Roe Objection; foundation. MR. CRAWFORD: A: No. MR. ANDERSON: Join. petition that this asserts question what the MR. SEINIGER: That’s establishes that John Doe I’s conduct was to, goes qualifications. his is to accidental. BY MR. BISTLINE: testimony in Detective de- Other Steiner’s Q: You can answer.
position amplifies investiga- the results his Okay. A: tion: Q: bickering. You are done Steiner, Q: my Detective name is Nick case, particular I I think A: think in represent I [John Crawford. and Jane possibility on the that’s a and it based you ultimately Did come to the Doe]. curiosity he made about be- statements conclusion, upon your investiga- based magazines, pornographic cause of tion, touched [John I] that had in. magazines was He is he interested genital I]Roe area? [Jane in, old, years have kicked hormones H A: Yes. girl and he curious as to what looks Q: upon investigation, you re- Based that look, got he has a chance to like. So if filing of a ferred and recommended the going he is to. petition? Q: your How much of work involves with A: Yes. juvenile perpetrators? investigations exactly Q: that does mean? What years, past three A: Over the about we all it filed have handled the cases whether means to be A: That has juvenile or offenders. It’s juvenile juvenile was adult through court for a year last school he has been in the proceeding, and then juvenile offend- deny allegations resource officer handles to admit or chance it, I Probably past years over ten ers. charges. admits And he or the juveniles, "with all of the disposition have worked they go ahead make then C.J., sexual abuse juvenile TROUT, cases with worked JOHNSON and JJ., *, WOOD, Tern., offenders. McDEVHT J. Pro concur. Q: your juve- Based on experience with
niles how would [John characterize with respect I] to whether there maliciousness his actions? A: I would [John characterize Doe I] as
being more curious— Idaho, Plaintiff-Respondent, MR. ANDERSON: I STATE of need introduce an objection here specula- on the basis tion. Go ahead finish. sorry. am Joseph HUGHES, Jr., R. Defendant- THE WITNESS: —more curious than ma- Appellant. licious, that it was a malicious intent. No. 22261. too, possible, age someone into, child, develop age being a sex- Appeals Court of Idaho. preference
ual Iwhat see that could Aug. happen stays he interest opposite age sex group. of that Rehearing Denied Nov. MR. BISTLINE:
Q: your But it wasn’t sense that yet?
orientation had occurred Right. A: *6 added.) (emphasis reviewing Appellant’s opening brief, argument premised upon
idea that John Doe did not intend harm. argument unintentionally is not that he away took off in her clothes a bathroom public view, genital touched her in the area green
and then told her a would monster anybody. her if she told The conduct was sexually motivated and was intentional. It is clear he should not understood he do light concealment and threat to may girl. anticipated He not have problems
full his conduct extent of would girl, cause but it is clear he knew it wrong consequences and that adverse This would follow. Court concludes subject only interpretation— record is one was not accidental as we the conduct indicated, term. As defined record, entirety, supports in its read
conclusion. denied.
* pri- resignation. participated this decision or to his Justice McDevitt