The appellant, Diane Bruns, appeals orders of the Superior Court (Fitzgerald and McHugh, JJ.) granting summary judgment in favor of the appellee, State Farm Insurance Company (State Farm). We affirm.
The parties do not dispute the relevant background facts. In 2005, Mrs. Bruns brought suit individually, and as the mother and next friend of K.G., a minor, against William Bruns, alleging, in part, that between August 2003 and February 2005, Mr. Bruns sexually assaulted K.G. At all relevant times, Mr. Bruns was covered by a personal liability umbrella policy issued by State Farm. State Farm assigned counsel to defend Mr. Bruns, subject to a reservation of rights. In April 2006, State Farm filed a petition for declaratory judgment, requesting a ruling that it was not obligated to defend or indemnify Mr. Bruns.
Following cross-motions for summary judgment, the superior court ruled in favor of State Farm, finding that it had no obligation to defend Mr. Bruns. Mrs. Bruns appealed that ruling to this court. In addition, Mrs. Bruns filed a motion in the superior court to amend her declaration. The parties stayed the appeal in this court in order to determine whether Mr. Bruns was entitled to coverage for the claims in her amended declaration. The parties again filed cross-motions for summary judgment, and again summary judgment was granted in favor of State Farm. Mrs. Bruns appealed this second ruling, which we consolidated with the first appeal.
In Mrs. Bruns’ initial declaration, she brought counts for sexual assault and battery, intentional infliction of emotional distress, invasion of privacy and false imprisonment, as well as claims for various enhanced damages in the event Mr. Bruns was found liable on any of the substantive torts. The superior court found that the claim for sexual assault and battery was excluded from coverage because the policy specifically excluded any bodily injury that is expected or intended by the insured, or which is the result of the insured’s wanton or malicious act. The superior court also concluded that because “all other counts flow from the assault and battery,” Mrs. Bruns’ other counts were likewise excluded.
When Mrs. Bruns amended her declaration, she claimed that there were incidents of false imprisonment and invasion of privacy where “no actual sexual contact took place.” The superior court determined that because *710 Mrs. Bruns’ claims were still based upon the sexual abuse, they were not entitled to coverage.
On appeal, Mrs. Bruns contends that: (1) her counts for false imprisonment and invasion of privacy are covered by the policy; (2) the policy is conflicting or ambiguous and must be construed to provide coverage; and (3) the policy also covers her claims for enhanced compensatory damages and loss of parental consortium.
When reviewing a trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.
Webster v. Acadia Ins. Co.,
It is well-settled in New Hampshire that an insurer’s obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy. Id. In considering whether a duty to defend exists based upon the sufficiency of the pleadings, we consider the reasonable expectations of the insured as to its rights under the policy. Id. An insurer’s obligation is not merely to defend in cases of perfect declarations, but also in cases where, by any reasonable intendment of the pleadings, liability of the insured can be inferred, and neither ambiguity nor inconsistency in the underlying complaint can justify escape of the insurer from its obligation to defend. Id. In cases of doubt as to whether the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. Id.
Because an insurer’s obligation to defend is determined by whether there are sufficient facts in the pleadings to bring the claims within the express terms of the policy, we begin our analysis with an examination of the insurance policy language.
Marikar v. Peerless Ins. Co.,
a. an accident, including injurious exposure to conditions, which results in bodily injury or property damage during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one loss; or *711 b. the commission of an offense, or series of similar or related offenses, which result in personal injury during the policy period.
In short, State Farm is liable to defend, and potentially indemnify, the insured for an accident resulting in bodily injury, or the insured’s commission of an offense resulting in personal injury.
Bodily injury is defined as “physical injury, sickness, disease, emotional distress or mental injury to a person.” However, the policy excludes coverage for any bodily injury which is expected or intended by the insured, or which is the result of the insured’s willful and malicious act. The term “accident,” though not defined in the policy, is reasonably understood to mean, and has been consistently interpreted as, “an undesigned contingency, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Id. at 398 (quotations and ellipsis omitted). Personal injury is defined, in relevant part, as an injury caused by the commission of various offenses, including false imprisonment and invasion of rights of privacy. Coverage is excluded, however, for any personal injury caused when the insured acted with the specific intent to cause harm or injury.
Against this framework, we review the facts alleged in the pleadings. The first count in Mrs. Bruns’ initial declaration seeks damages for sexual assault and battery. For the policy to provide coverage for such an event, it must either be an accident resulting in bodily injury, or the commission of an offense resulting in personal injury. As sexual assault is not one of the offenses listed in the policy which, if committed, would result in personal injury, we are concerned only with whether sexual assault and battery is an accident resulting in bodily injury. “If the insured did not intend to inflict the injury on the victim by his intentional act, and the act was not so inherently injurious that the injury was certain to follow from it, the act as a contributing cause of injury would be regarded as accidental____”
Providence Mut. Fire Ins. Co. v. Scanlon,
We have previously held that sexual assault upon a minor is inherently injurious, in that it cannot be performed without a certainty that some injury will result.
Vermont Mut. Ins. Co. v. Malcolm,
We reach a similar conclusion with respect to the claim for intentional infliction of emotional distress. Because in such a claim, any injury must be intentionally caused for the claim to succeed, it cannot be said to be an accident.
See Scanlon,
Counts III and IV of Mrs. Bruns’ initial declaration allege invasion of rights of privacy and false imprisonment respectively. Such claims are specifically referenced in the policy as offenses, the commission of which could result in personal injury. Such claims may, therefore, meet the policy’s definition of a “loss.” State Farm, however, argues that these counts are little more than attempts to create coverage for the alleged sexual assaults where it would otherwise be denied. According to State Farm, while counts III and IV allege that the sexual assaults also constituted actionable invasions of privacy and false imprisonment, such claims are simply descriptions of elements of the sexual acts previously charged. We agree.
The counts for invasion of privacy and false imprisonment in Mrs. Bruns’ initial declaration specifically rely upon the commission of the sexual assaults to create liability. Regarding the invasion of privacy claim, the initial declaration states:
The acts of the defendant in entering the minor plaintiffs bedroom at the time, place and manner in which he did, and then proceeding to place his hands under her clothing ... to touch her breasts, buttocks and genitals, constituted conduct, without justification or legal/rightful cause, which unreasonably intruded on the physical and mental solitude and seclusion of the minor plaintiff, and further constituted conduct which exceeded the bounds of decency.
With respect to the false imprisonment claim, the initial declaration states:
[A]t the times and places where these sexual assaults took place, usually while the minor plaintiff was in bed in her own bedroom, the defendant approached her and touched her in such a manner *713 that his conduct constituted an unlawful restraint of her freedom, both physically and emotionally.
It is also worth noting that the initial declaration states that Mr. Bruns’ “course of conduct” and “pattern of sexual abuse and molestation” amounted to grooming, in that the commission of the earlier assaults made it more likely that assaults and other violations would occur in the future.
See State v. McIntyre,
The facts as they are alleged in the initial declaration indicate that any false imprisonment or invasion of privacy was the result of the sexual assaults. Put another way, as they are alleged, the claims for invasion of privacy and false imprisonment are merely rebrandings of the claim for sexual assault. We are not persuaded that the renaming of a claim entitles it to coverage where coverage would not otherwise exist. We, instead, agree with the First Circuit’s analysis of New Hampshire law, that:
In deciding the scope of a liability policy’s coverage, a court must compare the policy language with the facts pled in the underlying suit to see if the claim falls within the express terms of the policy; the legal nomenclature the plaintiff uses to frame the suit is relatively unimportant.
Titan Holdings Syndicate, Inc. v. City of Keene, N.H.,
Mrs. Bruns argues that these claims are covered by the policy because, while they may arise out of the commission of the sexual assaults, there is no exclusion in the policy for those claims that “arise out of’ uncovered acts. As we have stated, however, these are not claims that arise out of uncovered acts; they are restated versions of the claims for the uncovered acts. Insurance coverage may not be obtained by merely changing the name of the act from one outside the policy to one within it. Accordingly, we uphold the superior court’s grant of summary judgment in favor of State Farm as to the claims in the initial declaration.
In the amended declaration Mrs. Bruns purported to allege instances of false imprisonment and invasion of privacy occurring without sexual contact. With respect to the invasion of privacy claim, all factual allegations in the initial declaration remained unchanged, except that Mrs. Bruns added:
*714 In addition, this invasion of privacy occurred on numerous occasions where no actual sexual contact took place. This invasion of privacy included the psychological and emotional imprisonment and brainwashing of the minor plaintiff, leaving her helpless to resist these invasions of her privacy by the defendant.
Similarly, the claim for false imprisonment added:
In addition, there were numerous occasions where defendant falsely imprisoned the minor plaintiff in her bed, room and home, where no actual sexual contact took place. Under these circumstances, the minor plaintiff, due to defendant’s “grooming,” prior conduct, psychological entrapment and brainwashing and threats, was both physically and emotionally imprisoned by the defendant as she was afraid and unable to escape and leave his presence.
Both claims in the amended declaration, as in the initial declaration, specifically incorporate by reference all prior allegations, including that Mr. Bruns had engaged in a course of conduct and pattern of molestation that amounted to grooming.
State Farm contends that because these new allegations are intertwined with the allegations of sexual assault, and so dependent upon the facts of the sexual assaults, the claims may not be separated. Thus, State Farm argues, the claims for false imprisonment and invasion of privacy in the amended declaration are not entitled to coverage.
We are not aware of, and the parties do not point to, any decision from this jurisdiction directly on point. Relying upon decisional law from other jurisdictions, State Farm contends that because the claims for invasion of privacy and false imprisonment are “inextricably linked” with or “inseparable from” the sexual assault claims, they are precluded from coverage. In
Auto-Owners Insurance Co. v. Todd,
The Minnesota Supreme Court noted that its established rule in determining coverage was to “look to the ‘overall intentional plan’ of the insured.” Id. at 699. The court went on to state that a review of the daughter’s complaint established that the father’s overall intentional plan was to sexually assault his daughter, not to falsely imprison her. Id. Thus, the court held that because the sexual abuse was not covered and because the false imprisonment claim was inextricably linked with the intentional plan of sexual abuse, it was excluded from coverage. Id. at 699-700.
Mrs. Bruns, in a footnote in her brief, urges us to reject the reasoning of
Todd
for two reasons. First, she contends that its holding creates a conflict in the policy language relating to the coverage of intentional torts and, thus, the policy must be construed to provide coverage. For reasons stated later in this opinion, we do not accept this assertion. Second, she argues that the holding in
Todd
is inconsistent with New Hampshire law which states that insurers may limit their liability only through clear and unambiguous policy language.
See Cacavas v. Maine Bonding & Casualty Co.,
In
Horace Mann Insurance Co. v. Barbara, B.,
While the factual circumstances of these cases differ, and thus lead to different outcomes, the underlying legal and logical principles are the same. Where the facts reveal that potentially covered acts are inextricably intertwined with and dependent upon the commission of uncovered acts, an insurer will not be required to defend. If, however, there is a genuine dispute as to the interconnectedness of the claims, or where it is clear that the covered and uncovered claims may be separated, a duty to defend may exist and summary judgment must be denied. As stated by the court in Barbara B.:
If the parties to a declaratory relief action dispute whether the insured’s alleged misconduct should be viewed as essentially a part of a proven sexual molestation, or instead as independent of it and so potentially within the policy coverage, and if the evidence pertaining to the alleged misconduct that the parties submit does not permit the court to eliminate either of these views, then factual issues exist precluding summary judgment in the insurer’s favor. Indeed, the duty to defend is then established, absent additional evidence bearing on this issue.
Id. at 798. We are persuaded by this logic.
We are further persuaded by the similarity of the issues here to other cases involving arguably intertwined claims. In various cases relative to coverage of a professional liability policy for acts of sexual abuse committed during the rendition of professional services, courts have looked to the relationship between the services provided and the harm alleged to determine whether coverage was appropriate. In
Niedzielski v. St. Paul Fire & Marine Ins. Co.,
Applying the above logic to the facts alleged in this case, we conclude that the facts supporting the uncovered claims and the potentially covered claims are inextricably linked. We note that while we may inquire into the underlying facts to avoid permitting the pleading strategies, whims and vagaries of third party claimants to control the rights of the parties,
Ross,
The nature of this action is even more clear with regard to the false imprisonment claim. In that claim, Mrs. Bruns specifically states that the false imprisonment was due to Mr. Bruns’ “grooming” and prior conduct, *718 where the only prior conduct alleged is the sexual abuse. That is, any false imprisonment, despite the unsupported conclusion offered in the amended declaration, is the result of the sexual abuse. Under these circumstances, we conclude that the claims of invasion of privacy and false imprisonment are inextricably linked with the claims of sexual abuse such that they are not entitled to coverage.
We find it important to state what we do not hold in this case. We do not hold that the policy at issue could never cover claims for invasion of privacy or false imprisonment; nor do we hold that there is no set of facts upon which State Farm would become liable to defend and/or indemnify Mr. Bruns. Instead, we hold only that on the facts
as they are alleged,
the claims for false imprisonment and invasion of privacy are inextricably intertwined with and dependent upon the uncovered sexual assault claims and are, therefore, outside the policy’s coverage.
See Pennsylvania Millers Mut. Ins. Co. v. Doe,
As noted previously, Mrs. Bruns alleges that there is a conflict or ambiguity in the policy because it professes to cover certain intentional torts, but then excludes coverage for those same torts when the insured acted with the intent to cause harm. According to Mrs. Bruns, this ambiguity must be construed against State Farm so as to provide coverage. We have, however, no occasion to reach the allegedly ambiguous or conflicting provisions of the policy. Our holding that State Farm is not required to defend or indemnify Mr. Bruns is based upon the conclusion that all of the claims, as they are alleged, are intertwined with clearly uncovered claims of sexual assault, and not upon the intentional harm exclusion in the policy. We, therefore, express no opinion on that portion of the policy, or whether a potential conflict or ambiguity might be resolved against State Farm. “We will not create an ambiguity simply to resolve it against the insurer.”
Niedzielski,
Finally, Mrs. Bruns argues that the policy not only covers the substantive claims she has made, but also the claims for enhanced damages. As we have concluded that State Farm is not obligated to defend *719 or indemnify Mr. Bruns, we do not address whether the policy is meant to cover the claims for enhanced damages.
Affirmed.