concurring. I agree with the majority in affirming the summary judgment of the trial court declaring that the insurance policy issued by the plaintiff to the defendant Bonita L. C. Marburg does not apply to the claims against Marburg arising out of her sexual relationship with the defendant minor child. In this case, however, there is no need to decide whether this court should join those jurisdictions that have adopted the presumption that sexual molestation of a minor child raises a presumption of intent to harm the child as a matter of law and, therefore, falls within the policy exclusion of liability for damages resulting from the intentional conduct of an insured.
The affidavits of the child and his mother supporting the motion for summary judgment, which have not been controverted, narrate the circumstances of the relationship between the child and Marburg. The facts recited in those documents plainly indicate that Marburg realized that the child had not reached the age necessary for consent to sexual intercourse. I agree with the majority that the two counteraffidavits filed in behalf of the defendants are insufficient to raise an issue of fact with respect to the mental condition of Marburg that would affect the conclusion to be drawn from the affidavits of the mother and the child that her conduct was intentional.