State Farm & Casualty v. Pickral, et. ux.

STATE FARM FIRE AND )
CASUALTY COMPANY, )
)
Plaintiff-Appellee, ) Appeal No.
) 01A01-9609-CV-00409
v. )
) Sumner Circuit
HENRY DAVID PICKRAL, and ) No. 14587-C
wife, LINDA M. PICKRAL, )
Defendants-Appellants.
)
)
FILED
February 26, 1997
Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRCUIT COURT OF SUMNER COUNTY AT GALLATIN,
TENNESSEE.
THE HONORABLE THOMAS GOODALL, JUDGE.
ROGER W. HUDSON,
MURFREE, COPE, HUDSON & SCARLETT
16 Public Square North
Murfreesboro, TN 37130
Attorney for Appellee.
LUTHER E. CANTRELL, JR.,
DAVIES, CANTRELL, HUMPHREYS & McCOY
150 Second Avenue North, Suite 225
P.O. Box 190609
Nashville, TN 37219-0609
Attorneys for Appellant, Henry David Pickral
AFFIRMED AND REMANDED
HERSCHEL P. FRANKS, JUDGE
CONCUR:
GODDARD, P.J.
SUSANO, J.
In this declaratory judgment action the Trial Judge
declared that the policy issued by plaintiff to defendant,
Henry David Pickral, did not afford coverage for an action
brought against defendant by ANF, who had charged in her
complaint that ?he would sexually molest and assault her, both
physically and mentally.?
Defendants have appealed, and motion was filed in
this Court to dismiss for failure to comply with Rule 5
T.R.A.P., i.e., appellant did not file a copy of the notice of
appeal with the Clerk of the Court of Appeals. Appellants
concede this fact and offer no circumstances requiring us to
waive the requirement of the Rule. Accordingly, the appeal
will be dismissed on this ground.
However, we have reviewed the record and conclude
the Trial Judge reached the correct result.
Plaintiffs’ complaint averred that it was not
obligated to defend Pickral in his lawsuit or indemnify him
for any judgment against him under his homeowner’s insurance
policy. It asserts that no coverage is provided because the
molestation was not an occurrence, as defined in the policy,
and the policy excludes liability for bodily injury which is
expected or intended by an insured, or is the result of a
willful and malicious act of an insured.
Summary judgment will be granted when there is no
genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. Byrd v. Hall, 847
S.W.2d 208 (Tenn. 1993). The policy in this case defines an
2
occurrence as an accident that results in bodily injury or
property damage. It excludes coverage for bodily injury or
property damage which is either expected or intended by the
insured, or to any person or property which is the result of
willful and malicious acts of the insured. Exclusionary
clauses such as these are not to be construed broadly in favor
of the insurer, nor are they to be construed so narrowly as to
defeat their purpose. Midland Ins. Co. v. Home Indemnity Co.,
619 S.W.2d 387, 389 (Tenn. App. 1981).
Appellant argues that a distinction can be drawn
between an intent to commit an act and an intent to harm. He
submits a physician’s affidavit opining that Pickral was not
aware or did not intend that the touching of the child would
cause her harm.
The Supreme Court has adopted a two part approach to
determining whether an intended or expected acts exclusion
applies. It must be established that the insured intended the
act and also intended or expected that the injury would
result. Tennessee Farmer’s Mutual Insurance Co. v. Evans, 814
S.W.2d 49, 55 (Tenn. 1991). The Evans Court notes:
these are separate and distinct inquiries because
many intentional acts produce unexpected results and
comprehensive liability insurance would be somewhat
pointless if protection were precluded if, for
example, the intent to cause harm was not an
essential (and required) showing. See 7A J.
Appleman, Insurance Law and Practice §4501.09 at 263
(1979). Intent may be actual or inferred from the
nature of the act and the accompanying reasonable
foreseeability of harm. Id.
The first prong of the evidence test is met by
appellant’s admission that he purposely touched the child in
an extremely inappropriate manner, and had her touch him.
The second prong of the test, that injury was intended or
expected to result, can reasonably be inferred from the nature
of the act. Defendant’s subjective assertion regarding his
3
intention does not bring these materials facts into dispute.
J.C. Penney Casualty Insur. Co. V. M.K., 804 P.2d 689, 697
(Cal. 1991). Nor does the affidavit of a physician concluding
that defendant meant no harm. J.C. Penney at 700; CNA Ins.
Co. V. McGinnis, 666 S.W.2d 689, 691 (Ark. 1984); Allstate
Ins.Co. V. Troelstrup, 789 P.2d 415, 419 (Colo. 1990).
It cannot be seriously argued that harm to the child
victim is an ?unexpected result? in these circumstances.
Indeed, numerous courts have found that molestation of a child
always carries with it the inherent intent to harm which can
exclude insurance coverage. Landis v. Allstate Ins. Co., 546
So. 2d 1051, 1053 (Fla. 1989); Horace Mann Ins. Co. V.
Independent School Dist. No. 565, 355 N.W.2d 413 (Minn. 1984);
Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193 (Tex. Ct.
App. 1993).
The appeal is dismissed at appellants’ cost and the
cause remanded.
________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Goddard, P.J.
___________________________
Charles D. Susano, Jr., J.
4