Opinion
NUMBER 2012 CA 0062
11-02-2012
P. D. & An.D., INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD A.D. v. S.W. L., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD K.W.; R. L.; MR. & MRS. K., INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD J.K.; XYZ INSURANCE COMPANY; AND MNO INSURANCE COMPANY
Kris A. Perret Baton Rouge, LA Counsel for Plaintiffs/Appellants P.D. and An.D., individually and on behalf of their minor child, A.D. Charles Schutte, Jr. Baton Rouge, LA Counsel for Defendants/Appellants S.W.L., individually and on behalf of her minor child, K.W., and R.L, Donald R. Smith Baton Rouge, LA Counsel for Defendant/Appellee Allstate Insurance Company David Forester Mark G. Murphey Baton Rouge, LA Counsel for Defendants/Appellees Mrs. K., individually and on behalf of her minor child, J.K.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Suit Number 112340
Honorable Robert H. Morrison, III, Judge
Kris A. Perret
Baton Rouge, LA
Counsel for Plaintiffs/Appellants
P.D. and An.D., individually and on
behalf of their minor child, A.D.
Charles Schutte, Jr.
Baton Rouge, LA
Counsel for Defendants/Appellants
S.W.L., individually and on behalf of
her minor child, K.W., and R.L,
Donald R. Smith
Baton Rouge, LA
Counsel for Defendant/Appellee
Allstate Insurance Company
David Forester
Mark G. Murphey
Baton Rouge, LA
Counsel for Defendants/Appellees
Mrs. K., individually and on behalf
of her minor child, J.K.
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
GUIDRY, J.
This case again comes before this court on review of a summary judgment rendered in favor of a different insurer, finding that an exclusion in the insurer's policy precludes coverage of the claims of the plaintiffs, P.D. and An.D., individually and on behalf of their minor child, A.D. A detailed recitation of the underlying facts and applicable law are presented in the prior appeal; however, the primary allegations underlying the plaintiffs' suit is that two thirteen-year-old boys, K.W. and J.K., sexually exploited an intoxicated and semi-conscious sixteen-year-old girl, A.D., while she was at a sleepover at her friend's house.
To protect the identity of the minors involved in this appeal, we are using initials rather than their names in this opinion.
In the prior appeal, we affirmed the trial court's dismissal of the plaintiffs' claims against Liberty Mutual Insurance Company, the homeowner's insurer of one of the thirteen-year-old boys and his parents, based on a sexual molestation exclusion contained in its policy. See P.D. v. S.W.L., 07-2534 (La. App. 1st Cir. 7/21/08), 993 So. 2d 240, writ denied, 08-2770 (La. 2/13/09), 999 So. 2d 1146. Consideration of whether an exclusion in the Liberty Mutual policy for intentional acts applied was pretermitted in the prior opinion, but is the sole issue presented in this appeal of the summary judgment rendered in favor of Allstate Insurance Company, the homeowner's insurer of the other thirteen-year-old boy and his mother.
Liberty Mutual issued a homeowner's insurance policy to S.W.L. and R.L. S.W.L. is the mother of K.W.
Allstate intervened in the personal injury suit filed by the plaintiffs to assert that the policy issued to Ms. K, the mother of J.K., contained exclusions precluding coverage for the claims asserted by the plaintiffs. Allstate later filed a motion for summary judgment asserting that the intentional act/injury exclusion contained in its policy precluded coverage, which motion was granted by the trial court and is the subject of this appeal.
In the policy issued to Ms. K, Allstate provided "Family Liability Protection," wherein Allstate agreed to pay damages for which an insured person under the policy becomes legally obligated to pay because of bodily injury arising from an occurrence to which the policy applied and covered under the Family Liability Protection. The policy expressly provided that Allstate would not cover losses under the Family Liability Protection for:
An "insured person" is defined in the policy as the person named in the policy declarations as the insured and any relative and any dependent person that is in the insured's care that is a resident of the insured's household. The subject policy lists Ms. K as the named insured in the policy declarations.
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... any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, the insured person. This exclusion applies even if:In opposing the motion for summary judgment, plaintiffs assert that the exclusion invoked by Allstate is not an intentional "act" exclusion, but an intentional "injury" exclusion, and as such, Allstate has not presented sufficient evidence to show that J.K. intended to cause the injuries suffered by A.D.
a) such insured person lacks the mental capacity to govern his or her conduct;
b) such bodily injury ... is of a different kind or degree than intended or reasonably expected; or
c) such bodily injury ... is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.
In support of its motion for summary judgment, Allstate submitted copies of the plaintiffs' original and amended petitions for damages, an excerpt of A.D.'s deposition testimony, and a certified copy of the policy issued to Ms. K. The petitions and deposition testimony establish that J.K. intended to engage in sexual conduct with A.D. and that A.D. did not consent to sexual acts inflicted by J.K. In her deposition, A.D. testified that "[w]hen I realized what was going on, I said, no, I don't want this." Further, according to the plaintiffs' petition, the injuries or damages claimed are not simply that the sexual conduct occurred, but are for the injuries, mental pain and suffering, loss of enjoyment of life, embarrassment, ridicule, and severe emotional distress suffered by A.D.
The sole basis of the plaintiffs' case against Allstate's insureds, Ms. K and J.K., is the sexual conduct that occurred between J.K. and A.D., and clearly, without the sexual conduct, there would be no damages claimed by the plaintiffs against Ms. K and J.K. Further, it is undisputed that J.K. intended to engage in sexual conduct with A.D. Coverage under Family Liability Protection is excluded when the act causing injury is intentional and injury may "reasonably be expected to result" from that intentional act.
Thus, according to the language of the exclusion, coverage is excluded when either (1) the insured intended the injury or damage; or (2) injury or damage may be reasonably expected to result from the intentional act of the insured. In this case, regardless of the insured's actual thoughts, or lack thereof, regarding the consequences of his actions, the injuries and damages asserted by the plaintiffs in this case are of the type and nature that persons would reasonably expect to result from the intentional conduct that occurred in this case. Therefore, we find that summary judgment was properly granted by the trial court.
As for the secondary argument urged by the plaintiffs as grounds for holding that the intentional act/injury exclusion contained in Allstate's policy should not apply to the vicarious liability claims asserted against Ms. K, we observe that a similar argument was raised by the plaintiffs in the prior appeal. See P.D., 07-2534 at pp. 12-13, 993 So. 2d at 247-48. As Ms. K's vicarious liability is for the same injuries that were the result of J.K's intentional act of engaging in sexual conduct with A.D. without consent, we find the basis for finding no coverage for Ms. K's vicarious liability is not because the Allstate policy contains a special clause limiting Ms. K's parental liability; rather, there is no coverage for her vicarious liability because of the exclusion limiting coverage for the injuries suffered by A.D. that reasonably resulted from J.K.'s intentional act. Thus, we reject the plaintiffs' secondary arguments for urging coverage under the Allstate policy.
CONCLUSION
Accordingly, based on our de novo review of the record and the policy language at issue, we affirm. All costs of this appeal are assessed to the appellants, P.D. and An.D.
AFFIRMED.