Fire Insurance Exchange v. Diehl

Brickley, C.J.

In this case we decide if a homeowner’s insurance policy covers the injury resulting from a child actor’s requests for the child victim to perform fellatio and the child victim’s acquiescence. We find that the policy may cover the incidents if a jury finds that the injury resulting from the child actor’s conduct was not reasonably foreseeable to a child of like age, ability, intelligence, and experience under like circumstances.

Reaching this conclusion, we find that if the policy excludes coverage for. intentional acts where the result is "reasonably foreseeable,” reasonable foreseeability for an insured child should be judged under a mixed objective-subjective standard.

*681As a separate holding, we also decline to infer, as a matter of law, that child actors intend the harm that results from their sexual assault of a victim.1 The inference is inappropriate because children, as a group, do not have the capacity to understand the consequences of their sexual acts.

FACTS

On two distinct occasions the male child actor requested the victim to perform fellatio and the victim complied. At the time of the first incident, the child actor was about six or seven years old. At the time of the second incident, the child actor was nine years old. The victim is younger than the actor. Neither party disputes that the child actor intended the act.

The child actor’s deposition testimony emphasizes that, although the child actor intended his. acts, he was unaware that the acts could hurt.

Q. Did you have any idea that you would be hurting [the victim]?
A. No.
Q. Did you ever mean to hurt [the victim]?
A. No.
Q. [The victim] was your friend, wasn’t she?
A. Yes.
Q. Did you have any idea that you may be hurting [the victim] in her head?
A. No.
Q. Did you have any idea whether or not you were hurting [the victim] on her body?
A. No.

Testifying about the second incident the child *682actor still maintained that he did not know he was hurting the victim.

Q. All right. Did you know you were hurting [the victim] then?
A. No.
Q. Did you mean to húrt [the victim] in any way then?
A. No.

The victim’s mother learned of the assaults and brought a civil action for physical and emotional damages against the child actor and his parents. Separately, Fire Insurance Exchange (plaintiff), who covered the actor and the actor’s parents under a homeowner’s policy, filed this action, seeking a declaratory judgment that the company was under no duty either to defend or indemnify the assailant or the assailant’s parents in the action arising from the sexual assaults. Plaintiff based its summary judgment motion on the terms of the homeowner’s policy.

Plaintiff asserted that the child actor’s acts were not covered because the policy only covered injury that was "neither expected nor intended by the insured,” and because the policy excluded coverage for intentional acts. The intentional-acts exclusion was based on the foreseeability of harm that resulted from such acts. Plaintiff also argued that, despite the child actor’s assertions that he did not intend to hurt the child victim, the court must infer the child actor’s intent to injure the victim as a matter of law. The trial court granted plaintiff’s motion for summary disposition on the basis of the intentional-acts exclusion. The trial court ruled that the intentional-acts exclusion applied because a reasonable adult could have foreseen the harm that resulted from the acts.

*683The Court of Appeals reversed. It declined to impose on a minor the objective standard of foreseeability used by the trial court. Instead, it interpreted the intentional-acts exclusion to require a mixed objective-subjective standard of foreseeability. It announced this standard as being whether "a reasonable child of like age, ability, intelligence, and experience under like circumstances” would have foreseen the harm. Fire Ins Exchange v Diehl, 206 Mich App 108, 119; 520 NW2d 675 (1994). The Court arrived at this standard by adapting the negligence standard for minors to the concept of foreseeability. Id. It also refused to infer as a matter of law that the child actor intended to injure the victim. Id. at 118.

THE INSURANCE POLICY

This Court must now address plaintiff’s motion for summary judgment by deciding if plaintiff’s policy would cover sexual assaults by minors where a minor intends the act but is unaware that harm could result. An insurance policy is a contract between the parties. To decide whether a policy covers a particular act, the court must determine what the parties agreed to in the policy. Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). To determine what the parties agreed to, the court applies a two-part analysis. In the first part, the court must decide if the occurrence section of this policy includes a particular act. If so, the court then must decide if coverage is denied under one of the policy’s exclusions. Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 172; 534 NW2d 502 (1995).

We find that the occurrence section of this policy includes the assaults in this case. The policy states:

*684[Fire Insurance Exchange] shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury or property damage covered by this policy. At our expense we shall defend an insured against any covered claim or suit. We may investigate and settle any claim or suit that we consider proper.

The policy also provides a definition of "occurrence.”

[A] sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.

Therefore, the policy covers the present assaults if the injuries were "neither expected nor intended by the insured.”

Because, in this case, the child actor intended the acts but did not intend the injuries, we must determine whether the phrase "neither expected nor intended by the insured” excludes broad policy coverage for all injuries if the injuries were objectively intended, or whether the phrase only excludes coverage for injuries subjectively intended by the insured. In Allstate Ins Co v Freeman, 432 Mich 656, 709; 443 NW2d 734 (1989), a majority of this Court held that the following policy required the use of an objective standard:

We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.

Comparatively, a majority of this Court held that the following policy exclusion required the use of a subjective standard:

*685[The policy excludes b]odily injury or property damage which is either expected or intended from the standpoint of the insured. [Id. at 708. (See also opinions by Archer, Cavanagh, and Levin, JJ.)]

Explaining the distinction, Justice Boyle noted that the first policy required an objective standard because, of the two exclusionary phrases in the policy, the first exclusionary phrase applied to injury "reasonably” expected, and the policy counterpoised the first exclusionary phrase to the second phrase that applied if the injury was "in fact intended.” Therefore, the first phrase must require application of an objective standard or the word "reasonably” loses its meaning and the second exclusionary phrase is redundant. Id. at 709. On the other hand, the policy exclusion from the second policy did not contain the word "reasonably,” but instead employed the phrase "from the standpoint of the insured.” This language required application of a subjective standard. Id.

. The language of plaintiff’s policy places the policy somewhere between the two policies at issue in Freeman. Although the policy does not employ the term "reasonably,” the phrase "from the standpoint of the insured” is also absent. Yet, even without these aids we find that the definition of "occurrence” in plaintiff’s policy also requires the application of a subjective standard. The policy states that it applies to "bodily injury . . . neither expected nor intended by the insured.” (Emphasis added.) The manner in which the policy employs the phrase "by the insured” suggests that the emphasis of the policy is on whether the insured expected or intended the injury.

Additionally, in Auto-Owners Ins Co, supra at 567-568, a majority of this Court held that a policy exclusion for injury " 'expected or intended by an *686insured person,’ is unambiguous and requires a subjective intent . . . We find no substantial difference between the policy exclusion language in Churchman and the disputed phrase in plaintiff’s policy’s definition of "occurrence.” Therefore, we hold that the definition of "occurrence” in plaintiff’s policy requires the application of a subjective standard. Because there is no evidence at this stage in the trial that the child actor subjectively intended the harm that resulted from the assaults, summary judgment on the basis of the policy’s definition of "occurrence” is denied.

INTENTIONAL-ACTS EXCLUSION

The Court must next consider whether the policy’s intentional-acts exclusion denies coverage for the assaults at issue. The intentional-acts exclusion has two parts.

We do not cover bodily injury or property damage:
3. Either:
a. caused intentionally by or at the direction of an insured, or
b. resulting from any occurrence caused by an intentional act of an insured person where the results are reasonably foreseeable.

We will consider each part of the exclusion separately.

This Court has previously interpreted the language in part a of the exclusion. In Putman v Zeluff, 372 Mich 553, 557; 127 NW2d 374 (1964), this Court held that an exclusion barring recovery for injury "caused intentionally by or at the direction of the insured” excluded coverage only when *687the insured caused the injury intentionally. Id. at 555. Because the first part of plaintiff’s exclusion is the same as the exclusion in Putman, the first part of the intentional-acts exclusion only applies to the assailant if the assailant intended to cause the injury. Because there is no evidence showing that the assailant intended the injury, the first part of plaintiff’s intentional acts exclusion does not bar coverage.

However, this Court has not yet interpreted part b of the exclusion. On the basis of part b’s language, two elements are necessary before an act is excluded. First, the "occurrence” must result from an insured’s intentional act. This element is satisfied in the present case in that the assailant intended the sexual assaults. Second, the results must be "reasonably foreseeable.” The question we face is, By what standard should we measure reasonable foreseeability?

Answering this question, we are guided by three principles of insurance policy interpretation. First, although the court cannot create an ambiguity in an otherwise clear policy, if the policy contains an ambiguity, the ambiguity will be construed in favor of the insured. Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 402-403; 531 NW2d 168 (1995). Second, this Court strictly construes against the insurer exemptions that preclude coverage for the general risk. Vanguard Ins Co v Clarke, 438 Mich 463, 472; 475 NW2d 48 (1991). Finally, under the rule of reasonable expectation, the court grants coverage under the policy if "the policyholder, upon reading the contract language is led to a reasonable expectation of coverage.” Powers v DAIIE, 427 Mich 602, 632; 398 NW2d 411 (1986). These three principles of interpretation lead us to conclude that for a child the reasonable foreseeability of the result should be *688judged under a mixed objective-subjective standard.2

We reach this conclusion because the phrase "reasonably foreseeable” is ambiguous when applied to a child. The policy could be read to apply either when the result is reasonably foreseeable to an objective adult, or when the result is reasonably foreseeable to a similar child. Because the phrase "reasonably foreseeable” is ambiguous and because it is contained in an exception, we will construe it in favor of the insured and apply a mixed objective-subjective standard.

This mixed standard is also required by the rule of reasonable expectation. We find it unlikely that a policyholder reading the intentional-acts exclusion would reasonably expect that a covered child’s actions would be judged by an objective adult standard because of the unexpected results. The reasonable expectation is for a child to be held to a lesser standard of foreseeability than an adult.

Applying these principles, we agree with the Court of Appeals and choose to adapt the negligence standard for children to the concept of reasonable foreseeability under plaintiff’s insurance policy. Whether a result is reasonably foreseeable to a child should be "a question of fact for the jury, which is to determine it on the basis of whether ... a child of [like] age, ability, intelligence and experience would reasonably have been expected to [foresee the injury] under like circumstances.” Burhans v Witbeck, 375 Mich 253, 255; 134 NW2d 225 (1965). Therefore, under the terms *689of plaintiff’s insurance policy, summary judgment is inappropriate because foreseeability is an issue for the jury.

INTENT TO INJURE AS A MATTER OF LAW

Finally, we address plaintiff’s contention that the intent to injure must be inferred as a matter of law.3 For purposes of civil liability insurance, when an adult sexually assaults a child, the Court of Appeals has inferred the intent to injure as a matter of law. State Mut Ins Co v Russell, 185 Mich App 521, 526-527; 462 NW2d 785 (1990). The Court of Appeals decision is consistent with decisions in many other jurisdictions.4 We agree that *690courts should infer the intent to injure where an adult sexually assaults a child. However, we conclude that the intent to injure should not be inferred as a matter of law where a child is the assailant.5

We find that inferring as a matter of law the intent to injure where a child sexually assaults another individual is inappropriate. Children, as a group, do not have the capability to understand the consequences of their sexual acts. Additionally, it defies the reasonable expectation of the insured parents to suggest that their insurance policies could not cover the harm from certain sexually motivated acts undertaken by their children. The present case is an example of a situation in which insured parents would expect coverage.

In a deposition, the child actor testified that he had stayed up late at night and watched "bad movie[s]” at his grandparent’s house. In one movie he saw people "mating.” But when the child actor saw the movie, he did not perceive that the people "mating” in the movie could be harming each other.

Q. I think you told us a minute ago that you’ve seen people mating on television, right?
A. Yes.
Q. Did it look like they were hurting each other?
*691A. No.
Q. Did it look like they were having fun?
A. No.
Q. Did you ever think in watching that that they were hurting each other?
A. No.

The child actor also testified that his mother did not warn him that such conduct could injure the victim when his mother previously discovered that he had engaged in similar sexually experimental conduct with another boy. The child actor’s mother only told him that he should not engage in such behavior "[b]ecause it’s not nice.”

Understanding that parents and television often have a major effect on children’s lives, this child found himself in a position in which he was exposed to media images of sexual conduct, in which he was himself exploring sexual conduct, and yet in which he was uninformed of the potential consequences of such conduct. Because of a child’s developmental status, it is likely that many minors may be exposed to aspects of sexual activity, attempt to experiment with such activity, and yet not have the capacity to understand the consequences of their sexual acts. This is the type of situation in which insured parents would expect they could obtain insurance to protect them. Therefore, the inference of an intent to injure as a matter of law when a child is sexually assaulted should not apply to child assailants.

REMEDY

In conclusion, we remand this case to the circuit court for entry of an order denying plaintiff’s motion for summary judgment.

Remanded.

*692Levin, Cavanagh, and Mallett, JJ., concurred with Brickley, C.J.

We reserve for a future case,' determination of the appropriate minimum age to infer as a matter of law that children intend the harm that results from their sexual acts.

We do not wish to imply that the interpretation of this exclusion in plaintiff’s policy in any way impacts our decisions in Baker v Alt, 374 Mich 492; 132 NW2d 614 (1965), Burhans v Witbeck, 375 Mich 253; 134 NW2d 225 (1965), and Queen Ins Co v Hammond, 374 Mich 655; 132 NW2d 792 (1965). Those cases address the incapacity of minors under age seven to commit negligence, intentional torts, or crimes. They apply regardless of the policy language interpreted.

Our decision with respect to the applicability of the intent inference is not based on policy interpretation. The existence of the inference is a topic separate from the interpretation of any one insurance policy, but applicable to all insurance policies.

Apparently at this point thirty-six other jurisdictions have also adopted the inference when an adult sexually assaults a minor. Those states are Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin. See cases listed in State Farm Fire & Casualty Co v Davis, 612 So 2d 458, 463-464, n 4 (Ala, 1993), and the following more recent authority, Allen v Automobile Ins Co of Hartford Connecticut, 892 SW2d 198 (Tex App, 1994), Auto-Owners Ins Co v Brubaker, 93 Ohio App 3d 211; 638 NE2d 124 (1974), Nationwide Mut Fire Ins Co v Lajoie, — Vt —; 661 A2d 85 (1995), MAB v Nicely, 911 SW2d 313 (Mo App, 1995); Peerless Ins Co v Viegas, 667 A2d 785 (RI, 1995), and Thompson v West American Ins Co, 839 SW2d 579 (Ky App, 1992).

Generally, these courts reason that the inference of the intent to injure should be applied because the act of child molestation is inherently harmful. B B v Continental Ins Co, 8 F3d 1288, 1293 (CA 8, 1993).

"The [inferred-intent] approach . . . stands for the proposition that a person who sexually manipulates a minor cannot expect his insurer to cover his misconduct and cannot obtain such coverage simply by saying that he did not mean any harm. The courts following the majority approach have concluded that sexual misconduct with a minor is objectively so *690substantially certain to result in harm to the minor victim, that the perpetrator cannot be allowed to escape society’s determination that he or she is expected to know that. Hence, these courts infer the intent to harm as a matter of law in sexual misconduct liability insurance cases involving minors.” [Id., quoting Whitt v DeLeu, 707 F Supp 1011, 1016 (WD Wis, 1989).]

We also note that other jurisdictions have reached contrary results. However, we find these cases unpersuasive. See, e.g., Allstate Ins Co v Bailey, 723 F Supp 665 (MD Fla, 1989), Allstate Ins Co v Boelfs, 698 F Supp 815 (D Alas, 1987), B B v Continental Ins Co, n 4 supra, and DWH v Steele, 512 NW2d 586 (Minn, 1994).