Milbank Insurance Co. v. B.L.G.

CRIPPEN, Judge

(concurring in part and dissenting in part).

On the record before us, respondent B.L.G. is entitled to a declaration of coverage as a matter of law. We should affirm the trial court’s summary judgment for respondent.

Responding to B.L.G.’s motion for summary judgment, appellant Milbank Insurance Company relied exclusively on the determinations of fact in M.M.D.’s suit against B.L.G. Milbank stipulated that the trial court could decide the case by summary judgment premised on its adjudication of facts in the prior proceedings. Mil-bank has presented neither the trial court nor this court with an offer of any evidence other than the prior adjudication.

In the initial negligence proceedings, the trial court found that transmission of herpes was foreseeable because B.L.G. knew or should have known that he was infected with the virus. As we conclude unanimously, nothing in this adjudication suggests occurrence of intentional harm. Because Milbank offers nothing more, confining itself to this adjudication, the trial court’s summary judgment for respondent B.L.G. should not be disturbed.

Except on reversal of summary judgment for B.L.G., I concur in the entirety of the majority opinion. On the summary judgment for B.L.G., I respectfully dissent.