Opinion
No. 3:99-CV-402-H.
April 27, 2000.
MEMORANDUM OPINION
This declaratory judgment suit involves an insurer's duties to defend and indemnify an insured who pled guilty to sexually abusing a young boy. The insured, Defendant Robert V. Goodlin, was caring for three boys at his home when one of the boys, Defendant Kristopher Cross, allegedly hit Goodlin in the groin during "horseplay and rough housing." Goodlin responded by getting on top of Cross and pinching or grabbing Cross's genitals. Goodlin repeated this pinching on at least one other occasion, and there is other evidence of Goodlin's aberrant behavior towards the boys. Cross eventually told another adult, and a criminal investigation ensued.
Goodlin ultimately pled guilty to two counts of sexual abuse in the first degree for his conduct toward Cross. He now argues that he intended to take a plea of nolo contendere, as described by the Supreme Court in North Carolina v. Alford, 400 U.S. 25, 34-40 (1970). From the present record, the Court cannot determine whether his plea was guilty or nolo contendere, but, as explained below, the distinction is not material to the present analysis. Now Cross's mother has filed a civil lawsuit against Goodlin in Jefferson County Circuit Court (the "Cross suit"), and Goodlin asked his home liability insurer, Plaintiff State Farm, to defend and indemnify him in that lawsuit. State Farm refused and filed this lawsuit, seeking a declaratory judgment that it has no duty to defend or indemnify Goodlin.
(1) A person is guilty of sexual abuse in the first degree when:
(a) He subjects another person to sexual contact by forcible compulsion; or
(b) He subjects another person to sexual contact who is incapable of consent because he:
1. Is physically helpless; or
2. Is less than twelve (12) years old.
(2) Sexual abuse in the first degree is a Class D felony.
Ky. Rev. Stat. Ann. § 510.110 (Mich. 1999). "'Sexual contact' means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party." Id. at § 510.010(7).
At the relevant times, Goodlin had a renter's insurance policy with State Farm, which included personal liability coverage:
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice.
Renters Policy, § II — Liability Coverages, Coverage L — Personal Liability, at 12 (emphasis in original). The policy defines an "occurrence" as "an accident . . . which results in bodily injury." Id. at 2. In addition to this limitation of liability coverage, there is a specific exclusion for certain intentional conduct:
"Accident" is not defined by the policy, but the Kentucky Supreme Court has held that an "accident is generally understood as an unfortunate consequence which befalls an actor through his inattention, carelessness or perhaps for no explicable reason at all. The result is not a product of desire and is perforce accidental. Conversely, a consequence which is a result of a plan, design or intent, is commonly understood as not accidental." Fryman v. Pilot Life Ins. Co., 704 S.W.2d 205, 206 (Ky. 1986).
Coverage L . . . [does] not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by the insured; or
(2) which is the result of willful and malicious acts of the insured.Id., § II — Exclusions, at 13. Clearly, the liability coverage is only for accidents — events that Goodlin did not intend would happen. The Cross suit alleges tort claims for assault and battery, outrage, and negligence, all of which are premised on the same conduct underlying Goodlin's conviction for sexual abuse. Even if there were no case law on this subject, as a matter of normal contract interpretation, the facts would not support liability coverage under the policy.
The Kentucky courts have considered this subject in depth, and their conclusions support this common sense approach to contract law. See Goldsmith v. Physicians Ins. Co. of Ohio, 890 S.W.2d 644, 645-47 (Ky.Ct.App. 1994); Thompson v. West Am. Ins. Co., 839 S.W.2d 579, 580-81 (Ky.Ct.App. 1992). In Thompson, the court considered coverage under a virtually identical homeowner policy for civil claims of assault and battery, outrage, and negligence — the exact same claims alleged here. See Thompson, 839 S.W.2d at 580. Noting that Kentucky had not yet considered insurance coverage for torts based on "sexual misconduct," the court held that "even under the broad meaning of occurrence expressed in [prior cases], it is inconceivable that a criminal act of sexual molestation, the essence of which is the gratification of sexual desire, could possibly be an 'occurrence' for purposes of insurance coverage." Id. at 580-81. Then the court adopted the "inferred-intent" doctrine, which holds that
sexual molestation is so inherently injurious, or substantially certain to result in some injury, that the intent to injure, or the expectation that injury will result, can be inferred as a matter of law. . . . [T]o give merit to a claim that no harm was intended to result from the act would be utterly absurd.Id. at 581. Finally, the court considered the insured's argument that even if the intentional torts are not covered, the negligence count merits defense and indemnification: "Here, the acts alleged . . . are that he sexually molested [the plaintiffs]. The intentional act of sexual molestation is the equivalent of an intent to harm. There is no such thing as negligent or reckless sexual molestation." Id. (internal quotations and citation omitted). This states a clear rule that civil suits based on sexual abuse are not insured events under the policy language.
Goldsmith reaffirmed the special character of civil sexual abuse suits, and again refused to extend insurance coverage to those charges. See Goldsmith, 890 S.W.2d at 645. But Goldsmith went a step further, articulating the strong public policy against this type of insurance coverage.
Forcing the insurer to indemnify the insured subsidizes the episodes of 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. . . . We are aware that application of the inferred-intent standard will deny [the victim] another source of compensation for his injuries, but we agree with other courts that have determined that the benefit of ensuring compensation of the victim is outweighed by the effect of allowing sexual offenders to escape having to compensate minors for the harm that the courts have established is inherent in such offenses.Id. at 647 ( quoting B.B. v. Continental Ins. Co., 8 F.3d 1288, 1295 (8th Cir. 1993) (internal quotations and citations omitted)).
Goodlin argues that the Court should not apply Thompson and Goldsmith because the acts he committed were much less severe than the molestations at issue in those cases. The Court is not inclined to make fine quantitative distinctions about child sexual abuse, but Goodlin's analogy of the circumstances of this case to an inadvertent brushing of a fellow elevator passenger's breast is inconceivable. Repeatedly grabbing the penis of an eight-year-old boy is not an accident, and Defendant's attempts to construe it as such are not meritorious. Goodlin pled guilty to two felony counts of sexual abuse in the first degree. By so doing, he necessarily conceded that he touched Plaintiff's child "for the purpose of gratifying the sexual desire of either party." Ky. Rev. Stat. Ann. §§ 510.110, 510.010(7) (Michie 1999). And even if he made an Alford plea, the Cross suit clearly bases its claims on the facts underlying the criminal charges. Goodlin freely admits that he intended to grab or pinch Cross's genitals; he only disputes why he did it. He admitted intentional behavior in the criminal proceeding, he admits it here, and Cross's mother accuses him of that same intentional behavior in her lawsuit.
Cross's mother is not suing Goodlin because he pinched her child. She is suing him because he sexually abused her child, and the damages she complains of are all psychological and directly related to the alleged sexual abuse. She does not seek recovery for the physical pain or injury of the pinching itself. Despite the negligence claim, which must be ignored under Thompson, 839 S.W.2d at 581, her entire suit is based on the premise that the events that transpired at Goodlin's house amount to sexual abuse. State Farm is under no contractual duty to defend such a suit, nor must it indemnify Goodlin if Cross's mother prevails.
The Court will enter an Order consistent with this Memorandum Opinion.
____________________________ JOHN G. HEYBURN II, JUDGE
ORDER
Plaintiff and Defendant Goodlin made cross-motions for summary judgment. Being otherwise sufficiently advised,IT IS HEREBY ORDERED that Plaintiff's motion is SUSTAINED. Plaintiff has no duty to defend or indemnify Goodlin in the civil lawsuit now pending in Jefferson County Circuit Court, Division III, No. 98-CI-06111.
IT IS FURTHER ORDERED that Goodlin's motion is DENIED. Judgment is entered for Plaintiff on Goodlin's counter-claim.
This is a final and appealable order.
____________________________ JOHN G. HEYBURN II, JUDGE