dissenting.
In order for insurer’s summary judgment to stand avoiding liability by the exclusion, the record must show that the evidence, including all reasonable inferences and construed in favor of the non-moving claimants, is such that, as a matter of law, the molester expected or intended bodily harm to come to the child as a result of his acts. OCGA § 9-11-56 (c); Hallford v. Kelley, 184 Ga. App. 90, 92 (360 SE2d 644) (1987).
There is evidence supporting the insured’s denial of intention to harm, that the insured was so consumed with his desire that his total intention was to satisfy himself, and that he gave no thought whatsoever to the effect on the child. There is a distinction between intentional acts and intentional consequences or results. It is the latter which is the focus of the exclusion. Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333 (291 SE2d 410) (1982). At this stage, therefore, a fact resolution remains. As said in State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 378 (364 SE2d 62) (1987), “the concern is whether intent is or was present in fact, in order to determine the applicability of a policy exclusion . . . the burden is on the carrier to prove and persuade that the injuries were within the scope of the exclusion.” Thus at trial the burden will be on the insurer to prove that the insured expected or intended bodily injury to the child when he acted. Similar then to the situation in State Farm, supra at 379, “[t]he question of whether the [actor’s condition] was such as to preclude the formation of intent or expectation [is] a question for the jury, . . . .” The Supreme Court of Georgia agreed. State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988).
Thus I do agree that the issue with respect to coverage is whether bodily injury was expected or intended by the insured, but I find no authority for the broadening construction of that term by the majority which adds “consciously indifferent to the consequences” to the oft-adjudicated words of the policy. Indifference, even conscious indifference, is not the same mental attitude as intention. Insurance policy exclusions are to be strictly construed, “against the insurer and in favor of providing the indemnity sought.” Mutual Life Ins. Co. v. Bishop, 132 Ga. App. 816 (209 SE2d 223) (1974); State Farm, supra at 379. The newly imported term means “lack of feeling for or against anything; unconcernedness; apathy.” Webster’s New Inti. Dictionary, *3712d ed.1 Particularly with the principle of strict construction in mind, conscious indifference does not equate with intention so as to be part of the latter’s definition.
Furthermore, the exclusion relates to bodily injury, and the injuries for which coverage is sought here and of which there is some evidence are solely psychological injuries or, as claimants term it, “mental damages.”
On these bases, I respectfully dissent.
I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.
On Motion for Rehearing.
On motion for rehearing, the appellants cite the Georgia Supreme Court’s recent decision in State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988), aff'g 185 Ga. App. 377 (364 SE2d 62) (1987), as authority for their contention that a material factual dispute exists in this case with respect to whether the insured had any intention to injure the victim. In that case, the Supreme Court held that although voluntary intoxication may not relieve a person of criminal liability for the consequences of his actions, it may render him incapable of forming an intent or expectation of injuring another, so as to place his actions outside an intentional misconduct exclusion in a homeowner’s insurance policy. There is no evidence and no allegation in the case before us that the insured was debilitated by intoxication at any time during the three years in which he carried out his repeated acts of sexual molestation, nor is there any allegation that he suffered from any mental disorder which might have affected his capacity to intend the results of his misconduct. Consequently, State Farm Fire &c. Co. v. Morgan has no bearing on the present case.
In tort law, as a basis for punitive damages, the expression relates to “an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975).