State Farm Fire & Casualty Co. v. Tully

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STATE FARM FIRE AND CASUALTY COMPANY
v. MARK TULLY ET AL.
(SC 19600)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 28—officially released August 23, 2016
Kirk D. Tavtigian, Jr., for the appellant-appellee
(defendant Child Doe).
Ron Murphy, for the appellee-appellant (named
defendant).
Jack G. Steigelfest, for the appellee in both appeals
(plaintiff).
Opinion
ROBINSON, J. The principal issue in these appeals
is whether evidence of an insured person’s voluntary
intoxication may be used, when an insurance policy
excludes coverage for intentional acts, to negate intent
and thereby establish the insurer’s duty to defend the
insured person against civil claims arising from sexual
misconduct with a minor. The plaintiff, State Farm Fire
and Casualty Company, brought this action seeking a
declaratory judgment that it owed no duty to defend
the named defendant, Mark Tully, under a homeowners
insurance policy (policy), in a separate civil action filed
on behalf of the defendant Child Doe.1 The defendants
appeal2 from the judgment of the trial court granting
the plaintiff’s motion for summary judgment on the
ground that, because the policy excluded coverage for
acts ‘‘intended’’ by the insured, Tully’s actions fell out-
side the scope of the policy and, thus, the plaintiff had
no duty to defend him under the presumption of intent
established in United Services Automobile Assn. v.
Marburg, 46 Conn. App. 99, 104–105, 698 A.2d 914
(1997). On appeal, the defendants claim that the trial
court improperly rendered summary judgment in favor
of the plaintiff because evidence that Tully was intoxi-
cated at the time of the incident created a genuine
issue of material fact as to whether his actions were
intentional. Specifically, the defendants assert that evi-
dence of voluntary intoxication may negate the intent
presumed under Marburg and thereby establish an
insurer’s duty to defend. We disagree and, accordingly,
affirm the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. On July 2, 2012, Doe and two
other girls were in the shower area of Winding Trails
Park in Farmington. At that time, Doe was fourteen
years old and the two other girls were, respectively,
thirteen and eight years old. Tully, who was fifty-six
years old and ‘‘under the influence of intoxicating
liquor,’’ approached the three girls and offered to buy
them ice cream. After the girls refused, Tully grabbed
Doe’s breast, nearly removing her bathing suit top. Tully
then fondled the buttocks of the eight year old girl in
Doe’s view.
Doe, by and through her parent as next friend, subse-
quently filed a civil action against Tully alleging, inter
alia, that he ‘‘negligen[tly]’’ sexually assaulted her while
he was intoxicated.3 The plaintiff had previously issued
the policy, which provided that the plaintiff would
defend Tully against claims resulting from an ‘‘occur-
rence,’’ which is defined in the policy as an ‘‘accident,’’
but not from claims resulting from his intentional
actions. Tully claimed coverage under the policy, based
on his intoxicated state, and requested that the plaintiff
defend him in the action.4 The plaintiff denied coverage,
however, on the ground that Doe’s claim fell within the
intentional act exclusion of the policy.
In response to this complaint, the plaintiff initiated
the present action seeking a declaratory judgment with
regard to its duty to defend Tully.5 The plaintiff moved
for summary judgment on the ground that the complaint
in the underlying action alleged an intentional act,
which fell within the policy’s intentional act exclusion
of coverage. In response, Tully submitted two affidavits,
one from a physician and one from a psychologist,
which opined that he was an alcoholic and so intoxi-
cated on the day of the incident that he could not have
formed the requisite intent to harm Doe, as well as his
own affidavit attesting that he did—and still does—
struggle with alcoholism. The defendants argued that
this evidence raised a genuine issue of material fact as
to whether Tully’s actions were intentional.6 The trial
court rendered summary judgment in favor of the plain-
tiff, concluding that the plaintiff was entitled to rely on
Marburg, which established a presumption of intent in
cases involving the sexual assault of a minor. See United
Services Automobile Assn. v. Marburg, supra, 46 Conn.
App. 104. The trial court then stated, more generally,
that ‘‘voluntary intoxication does not establish a ques-
tion of intent when defending against an exclusionary
clause of an insurance policy.’’ These appeals followed.
See footnote 2 of this opinion.7
On appeal, the defendants reiterate their claim that
evidence of Tully’s voluntary intoxication raises a genu-
ine issue of material fact as to whether his actions
were intentional and, thus, fall within the intentional
act exclusion of the policy.8 The defendants first claim
that the trial court improperly applied the presumption
established in Marburg because this court overruled
that presumption in Allstate Ins. Co. v. Barron, 269
Conn. 394, 409, 848 A.2d 1165 (2004), which held that
the standard for determining whether an insured’s
intent may be negated for the purposes of an intentional
act exclusion is whether the insured was able to under-
stand the wrongfulness of his conduct. Thus, the defen-
dants claim that there was a genuine issue of material
fact as to whether Tully was able to understand the
wrongfulness of his conduct as a result of his intoxica-
tion. Alternatively, should this court apply the Marburg
presumption, the defendants argue that this court
should, as a policy matter, allow evidence of voluntary
intoxication to be used to negate that intent. Lastly, the
defendants claim that the trial court improperly decided
‘‘that an insured’s intoxication can never, as a matter of
law, negate the intent required to invoke the intentional
acts exclusion.’’ (Emphasis in original.)
In response, the plaintiff contends that the trial court
properly applied the Marburg presumption and, thus,
there is no genuine issue of material fact that Tully’s
acts fell within the intentional acts exclusion. The plain-
tiff also argues that Barron clarified the Marburg pre-
sumption, rather than overruled it, given that the two
cases are factually distinguishable. Finally, the plaintiff
argues that this court should not allow evidence of
Tully’s voluntary intoxication to rebut the Marburg pre-
sumption, as it would be against public policy to allow
evidence of voluntary intoxication to negate intent for
the purposes of an intentional exclusion act in an insur-
ance policy.
We agree with the plaintiff and conclude that: (1) the
Marburg presumption of intentional conduct based on
an insured’s sexual misconduct with a minor remains
good law after Barron; (2) the trial court properly
applied the Marburg presumption in the present case;
and (3) evidence of voluntary intoxication may not be
used to negate intent in duty to defend cases in which
the insured’s intent is inferred from the underlying com-
plaint that alleges that the insured committed sexual
misconduct with a minor. We, therefore, conclude that
the plaintiff satisfied its burden of demonstrating that
no genuine issue of material fact exists insofar as the
complaint in the underlying civil action alleges inten-
tional acts and, thus, the plaintiff has no duty to
defend Tully.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book [§ 17-45] . . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Allstate Ins. Co.
v. Barron, supra, 269 Conn. 405–406.
‘‘The principles governing our determination of
[whether an insurer has a duty to defend] are well
settled. [A]n insurer’s duty to defend . . . is deter-
mined by reference to the allegations contained in the
[underlying] complaint. . . . The obligation of the
insurer to defend does not depend on whether the
injured party will successfully maintain a cause of
action against the insured but on whether he has, in
his complaint, stated facts which bring the injury within
the coverage. If the latter situation prevails, the policy
requires the insurer to defend, irrespective of the
insured’s ultimate liability. . . . It necessarily follows
that the insurer’s duty to defend is measured by the
allegations of the complaint. . . . Hence, if the com-
plaint sets forth a cause of action within the coverage
of the policy, the insurer must defend. . . . Indeed, [i]f
an allegation of the complaint falls even possibly within
the coverage, then the insurance company must defend
the insured. . . . On the other hand, if the complaint
alleges a liability which the policy does not cover, the
insurer is not required to defend.’’ (Citations omitted;
internal quotation marks omitted.) Community Action
for Greater Middlesex County, Inc. v. American Alli-
ance Ins. Co., 254 Conn. 387, 398–99, 757 A.2d 1074
(2000).
Specifically, ‘‘[w]here . . . the policy excludes cov-
erage for damages resulting from intentional acts, the
court examines the factual allegations to decide
whether both intentional acts and intended results are
present.’’ Middlesex Ins. Co. v. Mara, 699 F. Supp. 2d
439, 449 (D. Conn. 2010). ‘‘Moreover . . . Connecticut
courts have long eschewed the notion that pleadings
should be read in a hypertechnical manner. . . . They
thus read the complaint in a manner that advances
substantial justice, construing it reasonably to contain
all that it may fairly mean.’’ (Citation omitted; internal
quotation marks omitted.) Id., 450. ‘‘The result is that
even when an action is [pleaded] as an unintentional
tort [such as negligence], the court examines the alleged
activities in the complaint to determine whether the
insured intended to commit both the acts and the injur-
ies that resulted. If so, regardless of the title of the
action, the court holds the action to be outside the
coverage of the policy.’’ Id.
‘‘Furthermore, harmful intent may be inferred at law
in circumstances where the alleged behavior in the
underlying action is so inherently harmful that the
resulting damage is unarguably foreseeable.’’ Id. ‘‘Case
law is clear that where the provisions in the insurance
policy expressly exempt intentional acts of an insured
from coverage, the court will grant summary judgment
in favor of the insurer who relies upon such exemption.’’
Id., 450–51; see also United Services Automobile Assn.
v. Marburg, supra, 46 Conn. App. 104. When an insurer
relies on an exclusionary clause to deny coverage, the
initial burden is on the insurer to demonstrate that
all the allegations within the complaint fall completely
within the exclusion. Community Action for Greater
Middlesex County, Inc. v. American Alliance Ins. Co.,
supra, 254 Conn. 398–99. If the complaint alleges liabil-
ity that falls completely within the exclusion, the insurer
is not required to defend. Id., 399.
The plaintiff argues that Tully’s intent may be pre-
sumed in this case as a matter of law under Marburg
because the complaint in the underlying civil action
alleged sexual misconduct with a minor. This requires
us to consider the defendants’ argument that intent may
not be presumed because Allstate Ins. Co. v. Barron,
supra, 269 Conn. 394, overruled the Marburg pre-
sumption.
In United Services Automobile Assn. v. Marburg,
supra, 46 Conn. App. 100–101, our Appellate Court con-
sidered whether an insurer had a duty to defend the
defendant, Bonita Marburg, a woman accused of sexu-
ally abusing a minor during tutoring sessions. In its
motion for summary judgment, the insurer argued that
no genuine issue of material fact existed as to whether
the allegations fell within the homeowners insurance
policy’s ‘‘ ‘expected-or-intended injury’ ’’ exclusion. Id.,
102. The minor and his mother alleged, however, that
Marburg’s sexual misconduct was a result of a mental
disease or defect that negated her intent to harm the
minor. Id., 103. The Appellate Court, following an Amer-
ican Law Reports annotation, recognized a presumption
of intent for acts of sexual molestation of minors
because that act itself is ‘‘so heinous that intent to cause
harm is presumed as a matter of law.’’ Id., 104, citing
annot., 31 A.L.R. 4th 957, § 5 (b) (1984); see, e.g., Gearing
v. Nationwide Ins. Co., 76 Ohio St. 3d 34, 37, 665 N.E.2d
1115 (1996) (observing that, by ‘‘1993, the inferred intent
standard in cases of sexual molestation of a minor was
characterized as the unanimous rule,’’ and that minority
approach of considering subjective intent has ‘‘largely
been abandoned, having been criticized as logically
untenable’’ [internal quotation marks omitted]); see also
Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 390, 788
P.2d 121 (App. 1989) (concluding that public policy
supports presuming intent to injure with respect to
sexual abuse of minors because such acts are not per-
formed under any claim of right or privilege under law,
and are in fact crimes); Horace Mann Ins. Co. v. Leeber,
180 W. Va. 375, 380–81, 376 S.E.2d 581 (1988) (observing
that presumption of intent was supported by doctrine
of reasonable expectations with respect to policyholder
and homeowners insurance carrier).
Applying this presumption and relying on the stan-
dard set out in Home Ins. Co. v. Aetna Life & Casualty
Co., 35 Conn. App. 94, 644 A.2d 933 (1994), rev’d on
other grounds, 235 Conn. 185, 663 A.2d 1001 (1995),
the Appellate Court then reasoned that, ‘‘[a]n insured’s
conduct can be considered unintentional in situations
such as those here only if the insured can produce
evidence to show that she did not intend to cause the
damage. . . . If the insured cannot show that her
behavior was unintentional, the presumption of intent
remains intact, and the exclusion of the homeowners
policy precludes coverage.’’ (Citation omitted.) United
Services Automobile Assn. v. Marburg, supra, 46 Conn.
App. 104–105. The Appellate Court then analyzed the
evidence that Marburg provided to rebut the presump-
tion—namely, an affidavit and letter from two physi-
cians describing her mental condition—to determine
whether a material issue of fact was in dispute regarding
Marburg’s ability to form intent. Id., 106–107. Ulti-
mately, the Appellate Court held that the affidavits dem-
onstrated that no genuine issue of material fact existed
and, thus, summary judgment was appropriate. Id.,
110–11.
Several years later, we decided Allstate Ins. Co. v.
Barron, supra, 269 Conn. 407, a case in which the under-
lying complaint leading to the insurance coverage dis-
pute alleged, inter alia, that a mother stabbed her
husband and one of her children, poured gasoline on
herself and the child, and then set fire to the house.
The underlying complaint also alleged that, ‘‘at the time
of these events, [the mother] was suffering from a men-
tal illness or impairment that rendered her incapable
either of appreciating the nature, consequences and
wrongfulness of her conduct or controlling her actions
or both.’’ Id. Specifically, the mother had been diag-
nosed with postpartum depression, recurrent major
depression, and bipolar disorder. Id., 411.
In Barron, this court adopted the holding from Home
Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn.
App. 94, which was also applied in United Services
Automobile Assn. v. Marburg, supra, 46 Conn. App.
104–107, namely, that ‘‘an insured’s intent to commit
an act may be negated for purposes of an intentional
conduct exclusion clause when the insured did not
understand the nature or wrongfulness of his conduct,
or was deprived of the capacity to control his actions
regardless of his understanding of the nature or wrong-
fulness of his action.’’ (Internal quotation marks omit-
ted.) Allstate Ins. Co. v. Barron, supra, 269 Conn. 407.
We, therefore, determined that the dispositive issue was
‘‘not whether [the mother’s] actions were intentional in
the narrow sense that they were deliberate, but whether
her intent was negated by her inability to understand
the wrongfulness of her conduct or to control her con-
duct.’’ Id., 409. Ultimately, this court concluded that,
‘‘[t]he documents submitted by the plaintiff in support
of its motion for summary judgment simply did not
address that issue.’’ Id.
We conclude that Barron is inapposite to the present
case and does not affect the continuing vitality of the
Marburg presumption. First, the allegations in the
underlying complaint in Barron did not concern sexual
misconduct with a minor child. Second, the legal propri-
ety of the Marburg presumption was not at question
in Barron. Rather, Marburg and Barron are both cases
in which our courts have adopted and applied the stan-
dard set forth in Home Ins. Co. v. Aetna Life & Casualty
Co., supra, 35 Conn. App. 94, to determine whether an
insured adduced evidence sufficient to defeat summary
judgment as to whether mental incapacity rendered the
relevant actions unintentional under the intentional acts
exclusion clause of an insurance policy. Barron cited
to Marburg as a situation in which an insurer had satis-
fied its burden of demonstrating that no genuine issue
of material fact existed with regard to whether the
underlying allegations fell completely within the insur-
ance policy’s intentional acts exclusion clause, and the
insured subsequently failed to proffer sufficient evi-
dence to allow for an inference that the insured was
incapable of forming the intent necessary to result in
her acts being intentional. Allstate Ins. Co. v. Barron,
supra, 269 Conn. 412. In Barron, because there was no
claim that the allegations gave rise to a presumption
of intent as a matter of law, the insurer had an initially
greater burden to demonstrate that there was no genu-
ine issue of material fact on summary judgment than
in cases, such as the present one, in which an insurer
may rely on a presumption of intent to satisfy its burden
on summary judgment. The insurer in Barron ultimately
had to demonstrate that, despite the allegations within
the complaint that the mother suffered from mental
disease at the time of the incident, she nevertheless
formed the requisite intent to commit the acts, that
her acts were intentional, and that the allegations fell
completely within the intentional acts exclusion of the
policy. Thus, Barron did not overrule the Marburg pre-
sumption; rather, Barron clarified the standard for
determining whether an insured sufficiently has
negated intent in order to defeat summary judgment in
favor of the insurer.
Tully also argues in his brief that the Marburg pre-
sumption should not apply in the present case because
the underlying facts in that case are too dissimilar,
insofar as Marburg concerned allegations of sexual
assault, including penetrative intercourse, on at least
seventy-three occasions. See United Services Automo-
bile Assn. v. Marburg, supra, 46 Conn. App. 101. We
disagree. In Marburg, our Appellate Court, in presuming
intent to harm as a matter of law when an insured has
engaged in sexual misconduct with a minor, did not
consider any restrictions on the type or manner of sex-
ual assault of a minor by an adult. Id., 104–106. This
was for good reason. As the Maryland Court of Appeals
observed in rejecting an argument that the presumption
is inapplicable in a case without a ‘‘ ‘violent’ ’’ sexual
assault, minor victims of sexual abuse are unable to
consent as matter of law, and ‘‘[c]hild sexual abuse is
an affront to the dignity of the child—an invasion of
the child’s autonomy—because a child cannot appreci-
ate or comprehend the full nature of the sexual acts.
. . . While it is undoubtedly worse to couple sexual
molestation of a child with physical injury, such a dis-
tinction differs in degree, not in kind. The essence of
child sexual abuse is the violation of the dignitary inter-
est, whether there is physical injury or not.’’ (Citation
omitted.) Pettit v. Erie Ins. Exchange, 349 Md. 777,
783–84, 709 A.2d 1287 (1998). Put differently, the very
nature of the act of sexual abuse of minors, ‘‘inevita-
bl[y]’’ causes injury extending to ‘‘emotional harm to
minors from sexual abuse in all forms’’; Maryland
Casualty Co. v. Havey, 887 F. Supp. 195, 198 (C.D. Ill.
1995); regardless of whether the abuser subjectively
meant no harm from his actions, and the abuse was
not violent in nature. See, e.g., Allstate Ins. Co. v.
Troelstrup, 789 P.2d 415, 419–20 (Colo. 1990) (rejecting
claim that inference should not apply because abuse
was not ‘‘ ‘extreme’ enough to warrant such a result’’);
Scudder v. Hanover Ins. Co., 201 Ill. App. 3d 921, 929,
559 N.E.2d 559 (1990) (presumption of intent applies
to fondling of minor’s genitals because of emotional
harm, despite lack of force); Pettit v. Erie Ins.
Exchange, supra, 783–87 (presumption applies in case
of fondling of minors’ genitalia by diagnosed pedophile
who subjectively meant no harm and believed his acts
were expression of love); Gearing v. Nationwide Ins.
Co., supra, 76 Ohio St. 3d 40 (concluding that presump-
tion applied in cases of ‘‘criminal sexual touching’’ of
children and holding that ‘‘[b]ecause harm is inherent
in the act of sexual molestation, [insured’s] representa-
tions that he was subjectively ignorant of the fact that
his actions would harm his victims were insufficient to
raise a genuine issue of material fact’’); Horace Mann
Ins. Co. v. Leeber, supra, 180 W. Va. 379–81 (rejecting
insured’s reliance on ‘‘ ‘negligent’ seduction’’ in holding
presumption applicable to nonviolent fondling of
minor’s genitalia). Accordingly, we conclude that the
Marburg presumption is applicable in the present case,
despite the fact that the sexual abuse in Marburg was
far more severe than that alleged in the underlying com-
plaint.9
Because we conclude that the Marburg presumption
remains good law and is applicable in the present case,
we now consider the terms of the policy, which
excluded coverage for ‘‘bodily injury . . . which is
either expected or intended by the insured,’’ in light of
the allegations contained within the complaint in the
underlying civil action. Specifically, we seek to deter-
mine whether the allegations of Tully’s sexual miscon-
duct with a minor trigger the Marburg presumption and,
as a result, fall completely within the policy’s intentional
acts exclusion. The complaint in the underlying civil
action alleges that Tully, in an intoxicated state, grabbed
Doe’s breast and fondled the buttocks of an eight year
old child. The complaint then characterizes these allega-
tions as negligence. The complaint alleges that Doe’s
injuries ‘‘were caused by [Tully’s] negligence . . . in
that [he] was under the influence of intoxicating liquor
when he committed these actions.’’ The complaint fur-
ther alleges that ‘‘[a]s a result of [Tully’s] negligence and
carelessness, [Doe] has suffered bodily and emotional
injuries, and has been severely and permanently
injured.’’
Construing the relevant pleadings ‘‘broadly,’’ ‘‘realisti-
cally’’ and ‘‘reasonably, to contain all that it fairly
means,’’ but not ‘‘contorted in such a way so as to strain
the bounds of rational comprehension’’; Deming v.
Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905
A.2d 623 (2006); we conclude that the complaint in the
underlying civil action alleged that Tully engaged in
sexual misconduct with a minor. That complaint, there-
fore, alleges presumptively intentional conduct on the
part of Tully. First, the complaint alleges that Tully
attempted to lure the minor girls by offering to buy
them ice cream. The complaint then alleges that Tully
grabbed Doe’s breast, almost removing her bathing suit
top, and fondled the buttocks of an eight year girl.
Marburg aside, to read these allegations as anything
other than sexual misconduct with a minor would be
to ‘‘strain the bounds of rational comprehension.’’ Id.
Although the defendants contend that the allegations
arise from negligence, rather than deliberate sexual mis-
conduct with a minor, we are not persuaded. ‘‘[E]ven
when an action is [pleaded] as an unintentional tort
[such as negligence], the court examines the alleged
activities in the complaint to determine whether the
insured intended to commit both the acts and the injur-
ies that resulted. If so, regardless of the title of the
action, the court holds the action to be outside the
coverage of the policy.’’ (Internal quotations marks
omitted.) Middlesex Ins. Co. v. Mara, supra, 699 F.
Supp. 2d 450. Nothing about the allegations in the under-
lying civil action involve a negligent act. That complaint
does not, for example, allege that Tully was so intoxi-
cated that he drunkenly fell down and accidentally
touched Doe’s breast. Rather, the complaint alleges that
Tully ‘‘proceeded to grab [Doe’s] breast, almost com-
pletely removing her bathing suit in the process’’ and
‘‘then proceeded to fondle the buttocks of the [eight]
year old girl . . . .’’ Because the complaint in the under-
lying civil action alleges deliberate sexual misconduct
with a minor, we, therefore, conclude that the trial court
properly allowed the plaintiff to rely on the Marburg
presumption of intent in satisfying its initial burden on
summary judgment.10
Because the Marburg presumption of intent is rebut-
table, next we turn to the question of whether the defen-
dants have adduced evidence sufficient to raise a
genuine issue of material fact as to Tully’s intent. See
United Services Automobile Assn. v. Marburg, supra,
46 Conn. App. 104–106. To rebut the Marburg presump-
tion, the defendants claim that this court should con-
sider evidence of voluntary intoxication, such as
affidavits from physicians or Tully himself, to negate
intent. See footnote 6 of this opinion. The plaintiff
argues in response that evidence of voluntary intoxica-
tion should not be considered to negate Tully’s intent.
We agree with the plaintiff, and conclude that evidence
of voluntary intoxication may not be used to negate
intent in situations, as here, in which the defendants
seek insurance coverage for a claim arising out of Tul-
ly’s sexual misconduct with a minor.
This court has not considered previously whether
evidence of voluntary intoxication may negate intent
in the context of insurance claims arising from sexual
misconduct with a minor. This also is a relatively novel
issue for the country as a whole. In Wiley v. State Farm
Fire & Casualty Co., 995 F.2d 457, 465–66 (3d Cir. 1993),
the United States Court of Appeals for the Third Circuit
described, generally, the three approaches courts
across the country have taken to resolve this policy
issue.
Under the first approach, intent is inferred based on
the nature and character of the act, and the insured’s
subjective intent to harm is ‘‘wholly irrelevant.’’ Id., 465.
Under this approach, ‘‘any question of the inability to
form the intent to harm, whether it arises out of alleged
mental disease or defect or voluntary intoxication, is
immaterial in resolving the insurer’s obligation to pro-
vide coverage.’’ (Emphasis added.) Id. Put another way,
in cases in which intent is inferred, the inference is
conclusive, and an insured may not rebut that presump-
tion with evidence of lack of capacity to form the requi-
site intent for the acts to be considered ‘‘intentional.’’
See, e.g., State Farm Fire & Casualty Co. v. Estate of
Jenner, 874 F.2d 604, 606–607 (9th Cir. 1989); Mutual
Fire Ins. Co. v. Hancock, 634 A.2d 1312, 1313 (Me. 1993);
American Family Mutual Ins. Co. v. Peterson, 405
N.W.2d 418, 422 (Minn. 1987); Public Employees Mutual
Ins. Co. v. Rash, 48 Wash. App. 701, 705, 740 P.2d 370
(1987); N.N. v. Moraine Mutual Ins. Co., 153 Wis. 2d
84, 96, 450 N.W.2d 445 (1990).
Under the second approach, regardless of the charac-
ter of the act, an insured is precluded entirely from
asserting voluntary intoxication as a defense to an inten-
tional acts exclusion in an insurance policy in any duty
to defend case. Wiley v. State Farm Fire & Casualty
Co., supra, 995 F.2d 465–66. The reasoning is that ‘‘evi-
dence establishing that the insured was under the influ-
ence of intoxicants is of no consequence, for the law
must not permit the use of such stimuli to become a
defense for one’s actions.’’ (Internal quotation marks
omitted.) Id., 465 Essentially, voluntarily becoming
intoxicated should not excuse poor behavior or judg-
ment exercised while intoxicated under any set of facts.
See, e.g., Capitol Indemnity Corp. v. Evolution, Inc.,
293 F. Supp. 2d 1067, 1074 (D.N.D. 2003); Allstate Ins.
Co. v. Sherrill, 566 F. Supp. 1286, 1288 (E.D. Mich.
1983), aff’d, 735 F.2d 1363 (6th Cir. 1984); Prasad v.
Allstate Ins. Co., 644 So. 2d 992, 994–95 (Fla. 1994);
Dolan v. State Farm Fire & Casualty Co., 573 N.W.2d
254, 257 (Iowa 1998); Group Ins. Co. of Michigan v.
Czopek, 440 Mich. 590, 600–601, 489 N.W.2d 444 (1992);
Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285, 289
(Mo. App. 1979); Beckwith v. State Farm Fire & Casu-
alty Co., 120 Nev. 23, 27, 83 P.3d 275 (2007).
The third approach deems it appropriate for only a
fact finder to consider and determine the insured’s
intent when an insured claims incapacity to form the
requisite intent. Wiley v. State Farm Fire & Casualty
Co., supra, 995 F.2d 466. Importantly, under this
approach, even in situations in which intent is otherwise
presumed, ‘‘this factual inquiry in effect supersedes
scrutiny of the nature and character of the act commit-
ted and renders application of the inferred intent rule
inappropriate.’’ Id.; see, e.g., Globe American Casualty
Co. v. Lyons, 131 Ariz. 337, 339–40, 641 P.2d 251 (App.
1981); State Farm Fire & Casualty Co. v. Morgan, 258
Ga. 276, 276–77, 368 S.E.2d 509 (1988); Hanover Ins.
Co. v. Talhouni, 413 Mass. 781, 785–86, 604 N.E.2d 689
(1992); Burd v. Sussex, 56 N.J. 383, 398–99, 267 A.2d
7 (1970).
We adopt the second approach, and conclude that,
as a matter of law, evidence of voluntary intoxication11
may not be used to negate intent for the purposes of
determining whether an insurer owes a duty to defend
an insured in cases in which the insured’s intent is
presumed because the conduct in question involved
sexual misconduct with a minor. Under the second
approach, evidence of voluntary intoxication may
never, in any case, serve to negate intent for insurance
purposes. Wiley v. State Farm Fire & Casualty Co.,
supra, 995 F.2d 465. For a variety of public policy con-
siderations, we conclude the second approach is per-
suasive in the context of sexual misconduct with a
minor, even without considering whether it extends to
other acts.
The first policy consideration for holding that volun-
tary intoxication should not operate to negate intent is
not to relieve the insured of responsibility, financial
and otherwise, for his otherwise intentional actions.
One federal court, applying Michigan state law, stated
that, ‘‘public policy demands that a voluntary departure
of one’s good judgment and rational decision-making
abilities should not permit the insured to abrogate his
financial responsibility to those he brutally injures.’’
Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp. 1288.
Further, permitting voluntary intoxication to negate
intent ‘‘would allow commission of a crime without the
requisite responsibility’’ and would ‘‘create the ability
to act unwisely without the requisite financial responsi-
bility.’’ Group Ins. Co. of Michigan v. Czopek, supra,
440 Mich. 601.
Another policy consideration in support of our con-
clusion that evidence of voluntary intoxication may not
negate intent is that, even though a person is intoxicated
at the time, the conduct is such that a reasonable
insured would not expect it to fall within his policy
coverage. See American Family Mutual Ins. Co. v.
Peterson, supra, 405 N.W.2d 422 (voluntary intoxication
did not negate intent when man struck woman on head
with hammer because reasonable insured would not
expect that type of assault to be covered); see also
Dolan v. State Farm Fire & Casualty Co., supra, 573
N.W.2d 257 (insured cannot claim that intentional
assault was unexpected or unintended for purpose of
insurance coverage).
Finally, in determining whether evidence of voluntary
intoxication should negate intent, some state courts
have looked to their state’s criminal statutes to deter-
mine, as an expression of public policy, whether the
legislature would have intended for evidence of volun-
tary intoxication to negate intent in duty to defend
cases. For example, in Michigan, the state’s legislators
had ‘‘distinguishe[d] between a lack of mental capacity
due to mental illness and that which results from acute
voluntary alcohol or drug intoxication. In the latter situ-
ation, even though a criminal defendant’s freedom and
liberty [were] at stake, a defense of voluntary intoxica-
tion [could] not be tendered. To allow such a defense
would create an intolerable precedent of self-immu-
nity.’’ Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp.
1288. The court then applied that distinction to the
insurance context, holding that, ‘‘where an insured vol-
untarily ingests alcohol or drugs he may not assert a
defense to an exclusionary clause . . . based on his
lack of capacity to form the intent to act or harm, where
that defense is based solely on the effects of the alcohol
and/or drugs.’’12 Id.
We find these policy rationales that hold the insured
responsible for his intentional actions to be consistent
with existing Connecticut statutes and case law. Turn-
ing first to our own criminal statutes, we find support
in General Statutes § 53a-7.13 That statute expressly pro-
vides that, ‘‘[i]ntoxication shall not be a defense to a
criminal charge . . . if the actor, due to self-induced
intoxication, is unaware . . . such unawareness, dis-
regard or failure to perceive shall be immaterial.’’
(Emphasis added.) General Statutes § 53a-7. Further,
the official comment following § 53a-7 states that,
‘‘where the [criminal] offense is based on recklessness
or criminal negligence, unawareness of the actor due
to self-induced intoxication does not excuse him. For
example, a defendant charged with criminally negligent
homicide cannot argue that he was too intoxicated to be
aware of the risks involved in his conduct and therefore
should not be held liable for his unawareness.’’ Commis-
sion to Revise the Criminal Statutes, Penal Code Com-
ments, Conn. Gen. Stat. Ann. § 53a-7 (West 2012),
commission comment. Thus, the statutory language
expressly provides that voluntary intoxication does not
excuse a defendant from liability for criminal neg-
ligence.
We find further legislative support for precluding evi-
dence of voluntary intoxication from negating intent in
the insurance context in situations involving the
insured’s sexual misconduct with a minor within Gen-
eral Statutes § 53a-13,14 the mental capacity affirmative
defense statute. Section 53a-13 expressly precludes vol-
untary intoxication as a lack of mental capacity defense.
Because our legislature specifically precluded volun-
tary intoxication as a lack of mental capacity defense
in the criminal context, we extend that statement of
public policy to the insurance context, in which the
insured’s money, rather than his freedom, is at stake.
See Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp.
1288 (extending legislature’s distinction between lack
of mental capacity and acute voluntary intoxication in
criminal context to civil insurance context).
Finally, the second approach set forth in Wiley is
consistent with our holding and analysis in Barron.
Unlike the first approach, which serves as a total bar
precluding an insured from presenting any evidence of
any lack of capacity defenses, including evidence of
mental disease or defect, in cases in which intent is
inferred based on the nature of the act, the second
approach allows an insured to present evidence of men-
tal disease or defect, aside from evidence of voluntary
intoxication, to negate intent in the insurance context.
Thus, we conclude that the second approach is consis-
tent with our case law that allows evidence of mental
disease or defect to negate intent.15 See, e.g., Allstate
Ins. Co. v. Barron, supra, 269 Conn. 408–13 (considering
extrinsic evidence to determine whether insured lacked
mental capacity to negate intent); United Services Auto-
mobile Assn. v. Marburg, supra, 46 Conn. App. 107–10
(allowing insured to provide affidavits to demonstrate
lack of capacity to negate intent, but ultimately finding
that evidence was insufficient).
The defendants, however, claim that precluding vol-
untary intoxication from negating intent would under-
mine the ability of victims to receive compensation
from an insurance company in an automobile accident
involving driving under the influence. We disagree.
Comparing the situation at hand to an accident involv-
ing an intoxicated driver is akin to comparing apples
and oranges. In such an accident, a driver voluntarily
consumes alcohol, gets behind the wheel of a vehicle,
and then accidentally injures another driver or pedes-
trian on the road. In that situation, an insurance com-
pany would have a duty to defend the intoxicated driver
because the injury of the other person was uninten-
tional, however foreseeable.
Here, however, Tully voluntarily consumed alcohol,
went to a local park, attempted to lure children, grabbed
one child’s breast, and fondled the buttocks of another.
The act of sexual molestation of minors was not unin-
tentional or accidental. The situation at hand is more
similar to a scenario in which a driver voluntarily con-
sumes alcohol, gets behind the wheel of a car, sees a
pedestrian in the road and then intentionally hits the
person with his vehicle. In that situation, the driver’s
act of injuring the pedestrian was intentional, despite
the driver’s voluntary intoxication, which lowered his
inhibition.
Accordingly, we conclude that evidence of voluntary
intoxication may not negate intent in duty to defend
cases in which the insured’s intent is inferred from an
underlying complaint that alleges the insured commit-
ted sexual misconduct with a minor.16 Applying this rule
to the present case, the trial court properly granted the
plaintiff’s motion for summary judgment because the
defendants failed, as a matter of law, to rebut the pre-
sumption of intent based on Tully’s sexual misconduct
with a minor.17
The judgment is affirmed.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
2
Doe appealed, and Tully cross appealed, from the judgment of the trial
court to the Appellate Court, and we transferred the appeal and the cross
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2.
3
Tully also was arrested and charged with various criminal offenses. He
entered a plea of nolo contendere to sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (2), unlawful restraint in the
second degree in violation of General Statutes § 53a-96, and risk of injury
to a child in violation of General Statutes § 53-21 (a) (1). He was sentenced
to ten years imprisonment, execution suspended after thirty months, and
five years of probation.
4
The complaint in the underlying civil action was later amended to allege
a single negligence claim against Tully.
5
The plaintiff also sought a determination as to whether it owed a duty
to indemnify Tully. The trial court did not decide that issue, however, as it
determined that the plaintiff did not have a duty to defend Tully. See DaCruz
v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004)
(‘‘[b]ecause the duty to defend is significantly broader than the duty to
indemnify, where there is no duty to defend, there is no duty to indemnify’’
[internal quotation marks omitted]).
6
To rebut the presumption of intent, Tully offered affidavits from a
licensed physician and a licensed psychologist describing his intoxication
at the time of the incident and his alcoholism. First, Tully attached an
affidavit from a licensed physician, who averred that ‘‘Tully’s level of intoxi-
cation at the time of the incident was such that it is unlikely he would have
maintained the capacity to form intent or to act with an expectation to
cause harm or bodily injury.’’ Second, Tully attached the affidavit of a
licensed psychologist who conducted a psychological evaluation and sex
offender risk assessment on Tully and stated that his ‘‘conduct on [July 2,
2012] was the result of excessive alcohol consumption due to his alcohol
dependence and . . . that it is unlikely he would have had the intent or
expectation to cause harm or bodily injury . . . before or during the incident
at issue.’’ Finally, Tully provided his own affidavit in which he stated that
he is an alcoholic and was one at the time of the incident. He also attested
that he did not ‘‘recall the events of [July 2, 2012] other than drinking alcohol
before going to Winding Trails [Park], drinking alcohol while at Winding
Trails [Park], and then being arrested.’’ Tully also stated that he did not
intend to cause harm to anyone.
7
We note that, six days before we transferred the appeal to this court,
the trial court, Peck, J., rendered judgment by stipulation in the underlying
civil action in favor of Doe in the amount of $90,000. This stipulation was
entered pursuant to an agreement between the parties in that case. Although
the underlying civil action has settled, the defendants are not precluded
from pursuing the present appeals. ‘‘If the insurer declines to provide its
insured with a defense and is subsequently found to have breached its duty
to do so, it bears the consequences of its decision, including the payment
of any reasonable settlement agreed to by the plaintiff and the insured, and
the costs incurred effectuating the settlement up to the limits of the policy.’’
Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760,
806, 67 A.3d 961 (2013).
8
The plaintiff also denied coverage on the ground that Doe’s complaint
failed to allege an ‘‘ ‘occurrence’ ’’ under the policy, defined as an ‘‘ ‘acci-
dent,’ ’’ claiming that it had no duty to defend Tully because his actions did
not fall within the scope of the policy. ‘‘A typical definition of the term
‘accident’ is ‘a lack of intention or necessity, often opposed to design; an
unforeseen unplanned event; [a] sudden event or change occurring without
intent or volition . . . and producing an unfortunate result.’ . . . In short,
the relevant inquiry in determining whether an accident has occurred is
whether the injuries at issue were caused by the intentional design of the
insured, or rather, by a sudden, unforeseen event.’’ (Citations omitted.)
Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 594, 966 A.2d 672
(2009). Although this court has sometimes treated the analyses of whether
an act constitutes an ‘‘occurrence,’’ defined as an ‘‘accident,’’ and whether
the act falls within the intentional act exclusion separately; see, e.g., id.,
597; the ultimate inquiry—whether the act was intentional—is the same.
We therefore need not conduct a separate analysis as to whether Tully’s
actions constitute an ‘‘occurrence.’’ See also Allstate Ins. Co. v. Suchecki,
United States District Court, Docket No. 3:12CV01566 (VLB) (D. Conn. Febru-
ary 20, 2014) (concluding that act did not meet definition of ‘‘ ‘occurrence’ ’’
under insurance policy, and also that act fell within intentional act exclusion
of policy ‘‘for the same reasons’’).
9
We note that neither of the defendants has asked us to overrule Marburg
on the ground that the presumption of intent established in that case is
doctrinally unsound as a general proposition. Although there was, at one
point, a split of authority as to whether a presumption of intent to harm
could be inferred as a matter of law in cases concerning the sexual abuse
of minors by adults, with the vast majority of state courts adopting the
inference, we note that ‘‘the supreme courts of the other four states that
previously followed the minority approach have all now adopted the majority
approach.’’ State Farm Fire & Casualty Co. v. Davis, 612 So. 2d 458, 464
(Ala. 1993); see Gearing v. Nationwide Ins. Co., supra, 76 Ohio St. 3d 37
(describing inferred intent in cases concerning sexual abuse of minors as
‘‘unanimous rule’’ by 1993); see also Pettit v. Erie Ins. Exchange, supra,
349 Md. 788 and n.5 (discussing resolution of split).
Similarly, neither of the defendants claim that the inferred intent rule is
inapplicable on the ground that the girls were not minors, or even that Tully
was subjectively unaware of their ages, when he acted in this case. See
Allstate Ins. Co. v. Patterson, 904 F. Supp. 1270, 1282 n.11 (D. Utah 1995)
(discussing split of authority with respect to whether inferred intent rule
applies when victim is adult); see also Northern Security Ins. Co. v. Perron,
172 Vt. 204, 214–15, 777 A.2d 151 (2001) (discussing split of authority with
respect to whether inferred intent rule should apply when perpetrator is
minor, rather than adult).
10
The defendants also argue that the initial burden was on the plaintiff,
as the party seeking summary judgment, to establish the absence of any
genuine issue as to Tully’s mental condition. We disagree. The initial burden
is on the plaintiff to establish that there are no genuine issues of material
fact as to whether the allegations fall entirely within the policy exclusion.
See, e.g., Community Action for Greater Middlesex County, Inc. v. Ameri-
can Alliance Ins. Co., supra, 254 Conn. 398–99. Because the complaint in
the underlying civil action alleges sexual misconduct with a minor, thus
triggering the Marburg presumption, the plaintiff satisfied its burden, and
the burden then shifted to the defendants to establish that his actions were
not intentional, based on the standard set forth in Allstate Ins. Co. v. Barron,
supra, 269 Conn. 407–406. See United Services Automobile Assn. v. Marburg,
supra, 46 Conn. App. 106.
11
The defendants claim that the plaintiff failed to establish that Tully’s
intoxication was voluntary rather than involuntary and, thus, there was a
genuine issue of material fact that should have defeated the plaintiff’s motion
for summary judgment as to whether the plaintiff had a duty to defend him.
They further claim that the affidavits they submitted support the proposition
that his intoxication was involuntary because of his alcoholism. We disagree.
First, the insurer’s burden of proof on a motion for summary judgment
is to establish that no genuine issue of material fact exists as to its duty to
defend. Community Action for Greater Middlesex County, Inc. v. American
Alliance Ins. Co., supra, 254 Conn. 397–98. To do so, the insurer must
compare the policy terms with the four corners of the complaint. Id., 398–99.
Involuntary intoxication is ‘‘a very rare thing, and can never exist where
the person intoxicated knows what he or she is drinking, and drinks the
intoxicant voluntarily, and without being made to do so by force or coercion.’’
2 Criminal Practice Manual § 40:2 (West 2016). The complaint in the underly-
ing civil action did not allege that Tully’s intoxication was involuntary.
Rather, it alleged that Tully ‘‘approached [Doe] and her friends while he
was in an intoxicated state,’’ and that Tully ‘‘was under the influence of
intoxicating liquor when he committed these actions.’’ On the basis of a
reasonable reading of the allegations in a manner not to distort rational
comprehension; see, e.g., Deming v. Nationwide Mutual Ins. Co., supra,
279 Conn. 778; we do not read the complaint in the underlying civil action
to give rise to a genuine issue of material fact as to whether Tully’s intoxica-
tion was voluntary or involuntary.
12
On the other hand, the most common policy rationale for allowing
evidence of voluntary intoxication to negate intent—and leaving that ques-
tion for the fact finder to decide—is the public interest in compensating
victims. See, e.g., Hanover Ins. Co. v. Talhouni, supra, 413 Mass. 786 (citing
‘‘public interest that the victim be compensated, and the view that the victim
is aided by the narrowest view of the policy exclusion’’ [internal quotation
marks omitted]); Burd v. Sussex, supra, 56 N.J. 398–99 (citing public interest
‘‘that the victim be compensated, and the victim’s rights being derivative
from the insured’s, the victim is aided by the narrowest view of the policy
exclusion consistent with the purpose of not encouraging an intentional
attack’’). Although a policy interest in compensating victims exists, that
interest must be balanced by the fact that insurance policyholders share a
risk, as reflected by the cost of premiums. As the Ohio Supreme Court
has aptly observed, ‘‘requiring an insurer to indemnify an insured who has
engaged in sexual abuse of a child subsidizes the episodes of child sexual
abuse of which its victims complain, at the ultimate expense of other insureds
to whom the added costs of indemnifying child molesters will be passed,’’
and ‘‘the average person purchasing homeowners insurance would cringe
at the very suggestion that he was paying for such coverage . . . [a]nd
certainly . . . would not want to share that type of risk with other home-
owners [policyholders].’’ (Internal quotation marks omitted.) Gearing v.
Nationwide Ins. Co., supra, 76 Ohio St. 3d 39.
13
General Statutes § 53a-7 provides: ‘‘Intoxication shall not be a defense
to a criminal charge, but in any prosecution for an offense evidence of
intoxication of the defendant may be offered by the defendant whenever
it is relevant to negate an element of the crime charged, provided when
recklessness or criminal negligence is an element of the crime charged, if
the actor, due to self-induced intoxication, is unaware of or disregards or
fails to perceive a risk which he would have been aware of had he not been
intoxicated, such unawareness, disregard or failure to perceive shall be
immaterial. As used in this section, ‘intoxication’ means a substantial distur-
bance of mental or physical capacities resulting from the introduction of
substances into the body.’’ (Emphasis added.)
14
General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecu-
tion for an offense, it shall be an affirmative defense that the defendant, at
the time he committed the proscribed act or acts, lacked substantial capacity,
as a result of mental disease or defect, either to appreciate the wrongfulness
of his conduct or to control his conduct within the requirements of the law.
‘‘(b) It shall not be a defense under this section if such mental disease
or defect was proximately caused by the voluntary ingestion, inhalation or
injection of intoxicating liquor or any drug or substance, or any combination
thereof, unless such drug was prescribed for the defendant by a prescribing
practitioner, as defined in subdivision (22) of section 20-571, and was used
in accordance with the directions of such prescription. . . .’’
15
We acknowledge the defendants’ reliance on evidence establishing that
Tully is alcohol-dependent, and that the actions at issue resulted from exces-
sive intoxication stemming from his alcoholism. To this end, Tully himself
claims that his alcoholism was ‘‘ ‘out of control,’ ’’ precluding him from
forming the intent to harm anyone when he committed the acts at issue in
this case. See footnote 6 of this opinion. Consistent with our legislature’s
pronouncement on this issue, we acknowledge that alcohol dependency, or
alcoholism, is itself a recognized mental disease or disorder. See General
Statutes § 17a-680 (1) (‘‘‘[a]lcohol-dependent person’ means a person who
meets the criteria for moderate or severe alcohol use disorder, as described
in the most recent edition of the American Psychiatric Association’s ‘Diag-
nostic and Statistical Manual of Mental Disorders’ ’’); see also Skakel v.
Benedict, 54 Conn. App. 663, 677, 738 A.2d 170 (1999) (statutory privilege
for psychiatric records under General Statutes § 52-146d [2] applicable to
alcoholism treatment). The defendants do not, however, cite any authorities
suggesting that intoxication is any less voluntary as a matter of law when
it is spurred by an alcoholic’s substance dependency, and, as observed by
the plaintiff, the case law on this point holds expressly to the contrary.
See American Family Mutual Ins. Co. v. Peterson, supra, 405 N.W.2d 422
(holding, in hammer attack committed by diagnosed alcoholic, that ‘‘volun-
tary intoxication may not be used to deny an intent to injure one’s victim
where the circumstances of the assault otherwise compel an inference of
intent to injure’’ and observing that ‘‘[n]or do we think that other kinds of
assaults, such as rape, if committed in an alcoholic blackout, are within an
insured’s reasonable expectations of insurance coverage’’); see also State
v. Johnson, 327 N.W.2d 580, 582–83 (Minn. 1982) (describing as ‘‘weak,’’
and ‘‘not . . . accepted in any jurisdiction,’’ defendant’s claim ‘‘that a
chronic alcoholic’s intoxication is really involuntary intoxication and that
therefore the defense of involuntary intoxication, which applies to all crimes,
even general intent crimes, can be raised whenever a chronic alcoholic
commits a crime while intoxicated’’); Commonwealth v. Kuhn, 327 Pa.
Super. 72, 82, 475 A.2d 103 (1984) (‘‘involuntary intoxication cannot, as a
matter of law, be established through evidence showing that the criminal
defendant was a chronic alcoholic incapable of voluntarily refraining from
ingestion of alcohol’’); State v. Allert, 117 Wash. 2d 156, 167–68, 815 P.2d 752
(1991) (holding that, in absence of statutory direction to consider alcoholism
or other addictive diseases in sentencing, ‘‘voluntary use of alcohol is an
improper factor to consider in deciding whether to impose an exceptionally
low sentence’’); State ex rel. Jacobus v. State, 208 Wis. 2d 39, 51–54, 559
N.W.2d 900 (1997) (statute prohibiting prosecution of alcoholic for public
drunkenness or consumption of alcohol did not preclude prosecution for
violation of bail condition precluding consumption of alcohol); cf. In the
Matter of Moulton, 198 A.D. 2d 595, 603 N.Y.S.2d 240 (1993) (rejecting
unemployment insurance claim because ‘‘[i]t was not claimant’s alcoholism
but his voluntary disregard of a legitimate condition of employment, the
maintenance of an operator’s license, which mandated his termination’’).
16
We need not, however, consider whether voluntary intoxication may
negate intent in cases in which intent is not inferred, as a matter of law, or
in cases in which intent is inferred for acts other than sexual misconduct
with minors.
17
Because we hold that evidence of voluntary intoxication may not, as a
matter of law, negate intent for purposes of insurance coverage arising out
of a claim against the insured for sexual misconduct with a minor, we need
not reach the question of whether the evidence presented by the defendants
was sufficient to create a genuine issue of material fact.