D.E.M. v. Allickson

VANDE WALLE, Chief Justice,

dissenting.

I respectfully dissent. I cannot agree there was notice of a claim for “bodily injury” arising from the consentual sexual encounter between Donna and Allickson. The majority opinion says North Star is estopped from raising the issue because it didn’t tell the Church “it was relying all along upon the lack of notice of a claim for bodily injury, which lack of notice the Church could have ‘remedied or obviated’ had it ever been apprised of North Star’s secret theory.”

The insurance policy covered bodily injury defined by the policy as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting there-from_” I suggest when an insured submits a claim for bodily injury arising from a consentual and ongoing illicit love affair and it is rejected because the policy does not contain coverage for sexual misconduct claims, it is immediately obvious the insurer does not construe the claim to be one for bodily injury as defined in the policy. Here, the claim on its face appears to be one for violating a trust. If a claimant intends to rely on the after effects of the illicit love affair as coming within the definition of “bodily injury,” it is incumbent on the claimant to do so by book, line and page. Even then, I have serious doubt that coverage exists. At least, however, it might prompt the insurer to seek a declaratory judgment as authorized by section 32-23-06, NDCC. See Blackburn, Nickels v. National Farmers, 452 N.W.2d 319 (N.D.1990). The obvious reason North Star sought no declaratory judgment as to its coverage and duty to defend is because it was so apparent there was no coverage. •

Although this liability policy contained no exclusion clause, compare Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179 (N.D.1994) (sexual molestation exclusion clause), this was not a sexual molestation ease and we do not start with an assumption all acts are covered except as are specifically excluded. A definition of a term in an insurance contract excludes coverage if the language of the contract is clear. Bjornson v. Guaranty Nat. Ins. Co., 539 N.W.2d 46 (N.D. 1995). When the language is unambiguous it should not be strained to impose liability on the insurer. Id.

The definition of bodily injury is unambiguous to the extent that emotional and psychological affects of consentual illicit liaisons are not covered, at least absent a specific statement by the claimant as to why they constitute “bodily injury” as defined by the policy.

I would reverse the judgment.