Concord General Mutual Insurance Co. v. Madore, No. 507-11-03 Wmcv (Carroll, J., June 17,
2004)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]
STATE OF VERMONT
WINDHAM COUNTY, SS.
CONCORD GENERAL MUTUAL
INSURANCE COMPANY,
Plaintiff,
v. WINDHAM SUPERIOR COURT
DOCKET NO. 507-11-03 Wmcv
LEO MADORE, LINDA MADORE, &
T.M. (a minor) and TRACY DION &
T.S. (a minor),
Defendants.
ORDERS ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this declaratory judgment action, Plaintiff insurer seeks a declaration that it has no
potential liability, and thus no duty to defend, with respect to tort claims brought by Defendants
Dion and T.S. against Defendants Madore and T.M. for damages resulting from the sexual
molestation of T.S. by T.M. As the homeowners’ policy in question clearly excludes coverage
for personal injury “arising out of . . . sexual molestation of any person,” the Court GRANTS
Plaintiff insurer’s Motion for Judgment on the Pleadings. It follows that the Motion for
Summary Judgment filed by Defendants Dion and T.S. must be DENIED.
I. Plaintiff’s Motion for Judgment on the Pleadings
A motion for judgment on the pleadings should be granted if, viewing the pleadings
favorably to the non-movant, the movant is entitled to judgment based on the pleadings as a
matter of law. See Fercenia v. Guiduli, 2003 VT 50, Para. 6, 830 A.2d 55. For purposes of the
motion, the Court considers as true all allegations in the pleadings of the non-moving party and
all reasonable inferences that can be drawn from them; contrary assertions by the moving party
are deemed false. Id.
Here, the pivotal issue is whether there is any possibility that Plaintiff insurer might be
obligated to indemnify Defendants Madore and T.M. on any of the claims asserted in the
underlying suit. See City of Burlington v. National Union Fire Ins. Co., 163 Vt. 124, 127 (1994).
If so, the insurer has a duty to defend. Id. This is determined by comparing the allegations of
the complaint in the underlying action to the terms of coverage in the policy. Id.
In the underlying complaint,1 Defendants Tracy Dion and T.S. assert ten counts or causes
of action against Defendants Madore and T.M.: intentional tort battery, intentional tort assault,
intentional tort of false imprisonment, intentional infliction of emotional distress, negligent
infliction of emotional distress, negligence, negligent supervision, fostering and promoting an
atmosphere in which child sexual abuse could and did take place, outrageous conduct, and loss
of consortium. Each count includes and is based on the allegation that T.M. sexually molested
T.S. from the summer of 1998 through the fall of 2001. As amended, the complaint in the
underlying suit additionally includes in each count the allegation that T.M.’s acts also constituted
lewd and lascivious behavior.
Defendants Madore had a homeowners’ insurance policy with Plaintiff insurer from
1
Both the complaint in the underlying case and the policy have been incorporated into
September 16, 1997 through September 16, 2002. This policy explicitly excluded from coverage
personal liability for bodily injury “arising out of . . . sexual molestation of any person.” Section
II(1)(k). Additionally, in a separate sub-section, the policy excluded from coverage personal
liability for bodily injury “which is expected or intended by one or more ‘insureds.’” Section
II(1)(a).
The exclusion for bodily injury arising out of sexual molestation is clear, unambiguous
and applicable here. Although ambiguities in a policy will be construed against the insurer,
“policies which specifically and unambiguously exclude coverage are effective to preclude the
insurer’s liability.” American Fidelity Co. v. Elkins, 125 Vt. 313, 315 (1965).
Defendants Dion and T.S. cite Northern Security Ins. v. Perron, 172 Vt. 204 (2001) for
the pleadings here.
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the proposition that a sexual molestation exclusion cannot provide the basis for a denial of
possible liability where the alleged molester is a minor. However, this argument reads far too
much into Perron, which involved a sexual molestation by a minor but did not involve the
applicability of a sexual molestation exclusion. Instead, the Court considered the applicability of
an intentional injury exclusion to a sexual molestation by a minor; and in that context, the Court
held that where the alleged molester is a young minor, intent to cause injury could not be inferred
(as it can be when the alleged molester is an adult) and must be determined by the facts in a
particular case. Thus, where the insurer is relying on an intentional injury exclusion, whether the
child’s acts of sexual molestation were intended to cause injury will generally be a question of
fact precluding an early determination that the insurer has no possible liability, and thus no duty
to defend. 172 Vt. at 216-18.
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Despite the fact that Perron involved an intentional injury exclusion rather than a sexual
molestation exclusion, Defendants suggest the Perron analysis controls applicability of the
exclusion at issue here, either because the sexual molestation exclusion is merely a sub-set of the
intentional injury exclusion, or because some showing of intent would be necessary to convict
T.M. of sexual molestation. Contrary to Defendants’ suggestion, however, the sexual
molestation exclusion is not a sub-set of the intentional injury exclusion, but is a separate and
independent exclusion. Moreover, the focus here is not on the technical legal requirements for
conviction of a crime, but on the alleged acts which gave rise to the alleged injuries. It may be
that a defendant cannot be convicted of sexual molestation because he or she was unable to form
the necessary intent to coincide with the acts of sexual molestation; but the fact that the
defendant cannot be convicted does not mean that the acts of sexual molestation (and the injuries
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that arose from those acts) did not occur. Undefined terms in an insurance contract are to be
taken in their plain, ordinary, and popular sense. Elkins, 125 Vt. at 315. The Court has no doubt
that any reasonable reader of this exclusion would understand it to cover the injuries and acts
alleged here.2
Thus, applicability of the sexual molestation exclusion does not require an intent to
injure, and the Perron analysis is not controlling here. Indeed, if Defendants’ suggestion were
accepted, the sexual molestation exclusion would be totally redundant, since injuries from all
acts of sexual molestation would already be excluded as intentional injuries.
2
For this same reason, Defendants’ addition of the phrase “lewd and lascivious conduct”
cannot take their claims outside the scope of the exclusion. The alleged acts are the alleged acts,
regardless of what legal term Defendants use to describe them; and whichever term is used, they
fall within the plain meaning of sexual molestation.
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Accordingly, the Court holds that the sexual molestation exclusion applies, and that
Plaintiff is entitled to judgment as a matter of law.
II. Defendants’ Motion for Summary Judgment
Again relying on their overly broad reading of Perron and their erroneous importation of
an intent requirement into the sexual molestation exclusion, Defendants Dion and T.S. argue that
since T.M. was too young to intend injury as a matter of law, they should be granted summary
judgment on the issue of the inapplicability of sexual molestation exclusion. The Court finds the
proposition that T.M. was too young to intend injury as a matter of law questionable. Even if the
Court were to accept that proposition, however, Defendants’ argument would have to fail since
the Court has held that an intent to injure is not necessary for the sexual molestation exclusion to
apply.
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ORDERS
Plaintiff’s Motion for Judgment on the Pleadings is GRANTED.
Defendants’ Motion for Summary Judgment is DENIED.
Dated:
_____________________________
Karen R. Carroll
Presiding Judge
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