Fire Insurance Exchange v. Diehl

Riley, J.

(dissenting). Because I believe that the insurance contract did not provide coverage for the injury caused by the insured child’s intentional conduct, I respectfully dissent. Although the majority accepts the rule that this Court should infer an intent to injure as a matter of law for an adult who sexually assaults a child, it refuses to infer this intent for a child who sexually assaults another child. The majority concludes that the contract covered the injury in the present case because the insured child did not subjectively intend to harm the victim. Ante, p 687. I disagree with this reasoning. In this case, the male child was either seven or eight years old when he first forced the female child victim1 to perform fellatio on him, and was nine years old when he repeated this sexually abusive conduct against her.2 Because of the inherently harmful nature of his conduct, I would infer his intent to injure her as a matter of law. I would reverse the Court of Appeals decision and reinstate the circuit court’s grant of summary disposition in favor of the insurer, plaintiff Fire Insurance Exchange.

i

As a general principle of insurance law, the *693burden of proof lies with the insured to show that the damage suffered was covered by the insurance policy. Williams v Detroit Fire & Marine Ins Co, 280 Mich 215, 218; 273 NW 452 (1937). In examining an insurance contract, this Court first determines if the insured was indemnified by the insurer. As this Court explained in Auto-Owners Ins Co v Churchman, 440 Mich 560, 566-567; 489 NW2d 431 (1992):

An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962). Accordingly, the court must look at the contract as a whole and give meaning to all terms. Fresard v Michigan Millers Mut Ins Co, 414 Mich 686, 694; 327 NW2d 286 (1982).

The insurance contract between Fire Insurance and the insureds provided that it would cover personal liability arising from an "occurrence”:

We 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 contract defined an "occurrence” as:

[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.

*694As the majority correctly notes,3 this Court has held that an exclusionary insurance provision, containing similar language to the definition of "occurrence” in the present case, requires the application of a subjective standard. Churchman, supra at 567-568.4 However, in examining virtually the same "occurrence” provision as the present one, a plurality of this Court stated a more refined version of this standard by concluding that the subjective standard was "policy-blended,” distinguishable from a purely subjective standard. See Frankenmuth Mut Ins Co v Piccard, 440 Mich 539, 547, 549-550; 489 NW2d 422 (1992) (Riley, J., joined by Brickley and Mallett, JJ.).5 I believe this description of the test is more accurate. Rather than merely attempting to determine whether the insured subjectively intended to injure the victim, this Court also reviews the intentional conduct and examines other considerations to determine whether we should infer intent as a matter of law. The majority employed this analysis *695in the present case, but decided that the parties’ expectations and the child’s incapacity made it "inappropriate” to infer an intent to harm as a matter of law. Ante, pp 689-691. There is no dispute that the male child denied that he intended to harm the victim even though he admitted to intending to commit the sexually abusive acts.

ii

A

I share the majority’s view that when an adult sexually assaults a minor, this Court should infer an intent to harm as a matter of law regardless of whether the insured claims that he did not subjectively intend to harm the victim. Id., pp 689-690.6 However, the majority refuses to apply this rule to a child who sexually abuses another child on the grounds that children do not "have the capability to understand the consequences of their sexual acts” and because such an inference would "def[y] the reasonable expectation of the insured parents . . . .” Id., p 690.

I disagree. The United States Court of Appeals for the Eighth Circuit explained that the rationale for inferring intent as a matter of law for this kind of sexual abuse "is based on the inherently harmful nature of child molestation.” B B v Continental Ins Co, 8 F3d 1288, 1293 (CA 8, 1993). Such conduct is inherently harmful regardless of the *696age of the person who inflicts the injury. Any person who could decide to force another to perform such a sexually intimate act must also have had the intent to cause harm because the harm inheres in the abusive act itself. In other words, where a person intends to commit this act, he also intends the harm. See id. at 1293.7 Here, there is no dispute that the male child intended to commit this act. Thus, I conclude that we may infer his intent to harm.8

The majority refuses to extend this inference *697because children do not have the "capacity to understand the consequences of their sexual acts.” Ante, p 681. However, this statement, contradicts the general rule in Michigan that allows a jury to find a child seven years or older capable of negligence or of committing an intentional tort. Burhans v Witbeck, 375 Mich 253, 255; 134 NW2d 225 (1965).9 Only a child under the age of seven is incapable of negligence or of committing an intentional tort as a matter of law. Id., Queen Ins Co v Hammond, 374 Mich 655, 658; 132 NW2d 792 (1965).

In this case, the parents of the victim sued the male child and his parents for the nonconsénsual sexual conduct and sued the parents for negligent supervision.10 Because a person seven years or older may be capable of committing a tort under Michigan law, the male child must defend himself from the allegation that he forced the victim to perform fellatio on him. If the injury he intentionally caused is covered by the insurance contract, the insurer would be responsible for defending him in the suit.11

Moreover, I am unpersuaded that inferring the child’s intent to harm would be inconsistent with the reasonable expectations of the parties. By entering this insurance contract, the parties *698agreed that only certain events would be covered by the insurer. Specifically, the insurance contract covers a "sudden event,” including continuous or repeated exposure to the same conditions, that results in "bodily injury . . . neither expected nor intended by the insured.” The male child’s decision to commit these abusive acts cannot reasonably be described as a "sudden event.” Also, the insureds could not have reasonably expected that their child’s intentional and inherently harmful conduct would be protected by their insurer when this child was also subject to tort liability under Michigan law. See Burhans, supra at 255.

B

Furthermore, I believe that the majority’s ruling is inconsistent with this Court’s decision to conclude that there was an intent to harm in an analogous situation, where an adult intentionally committed an act injuring another, but claimed not to have had the subjective intent to harm the victim, either because of mental incompetence, see Churchman, supra, or diminished capacity, see Group Ins Co of Michigan v Czopek, 440 Mich 590; 489 NW2d 444 (1992). The majority does not explain why these cases are distinguishable.

In Churchman, supra at 563-565, Henry Frost, an insured adult, murdered his girlfriend’s former husband by shooting him four times, and then he killed himself. For the purposes of the appeal, the parties stipulated that Frost did not have the requisite mental capacity to form the criminal intent to commit murder at the time of the killing, apparently because he was a paranoid schizophrenic. See id. at 564, n 1. See also id. at 581 *699(Levin, J., dissenting). This Court reviewed the exclusionary provision of the insurance contract, which stated that the insurer did not provide coverage for a "bodily injury or property damage expected or intended by an insured person.” Id. at 566. This Court concluded that an insane or mentally ill person can intend or expect the results within the meaning of the insurance policy’s exclusionary clause and that the insured did intend to seriously injure the victim because he "was capable of foreseeing the[] consequences [of his acts] and understanding what he was doing . . . .” Id. at 568, 569-570. By analogy, if this Court will find an intent to harm from the intent to perform the act that caused the injury (shooting the victim) for an adult who is incompetent, i.e., cannot distinguish between right and wrong, surely this Court may also infer such an intent for a child who intentionally sexually abuses another.

In Czopek, supra at 592-595, Arthur Smith was drunk when he assaulted two police officers while resisting arrest. He admitted that he intended to resist arrest, but denied that he intended to bite or strike the officers, and he denied that he intended to harm them. This Court concluded that this assault was not an "occurrence” as defined by the insurance contract12 because it was not an accident. Id. at 598. Thus, this Court decided that insurance coverage was barred. Id. The Court also rejected the contention that Smith’s intoxication vitiated his intent, but held that "[a]n intoxicated person is responsible for his actions” because otherwise it would create a "precedent of self-immunity.” Id. at 601. Similarly, this Court should not immunize a family that fails to protect its children *700from the kinds of pernicious influences13 that cultivate such wrongful sexual conduct.

The majority reasons that "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.” Ante, p 691 (emphasis added). The majority overstates the likelihood that this kind of sexually abusive conduct will occur and undervalues the significance of the parent’s duty to protect their children from exposure to immoral or irresponsible sexual images. Moreover, I fear that the majority trivializes the harm inflicted by the child in this case by describing his conduct as a sexual "experiment,” rather than stating the sad reality that it was a sexual assault.

CONCLUSION

The majority’s result fails to integrate the inherently harmful nature of this sexual abuse, does not comport with the reasonable expectations of the parties in entering this contract, and is not consistent with this Court’s previous treatment of similar issues. I would conclude that the insurance policy does not cover the child’s intentional conduct as an "occurrence” because his intent to harm may be inferred from the nature of his acts. I would reverse the Court of Appeals decision and would reinstate the trial court’s grant of summary *701disposition in favor of plaintiff Fire Insurance Exchange.

Boyle and Weaver, JJ., concurred with Riley, J.

The child victim was four or five years old when the first incident occurred, and was six years old when the second incident occurred.

The majority mistakenly states that the male child was only six or seven years old at the time of the first incident. Ante, p 681. The first amended complaint brought by the victim’s parents alleged that the first incident occurred in either summer of 1988 or 1989 and that the second occurred in July 1990. Because the male child turned ten years old in November 1990, he would have been either seven or eight years old when the first incident occurred and nine years old when the second occurred. See Fire Ins Exchange v Diehl, 206 Mich App 108, 110; 520 NW2d 675 (1994).

Ante, p 686.

See also Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 404, 407-409; 531 NW2d 168 (1995) (holding that a similar definition of "occurrence” in an insurance contract created a subjective standard).

The insurance contract in Piccard, defined "occurrence” as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis added.)

See also Auto Club Group Ins Co v Marzonie, 447 Mich 624, 640-641; 527 NW2d 760 (1994) (Riley, J., joined by Boyle and Mallett, JJ.) (describing the policy-blended subjective test for a similar phrase in an exclusionary provision); Churchman, supra at 576-577 (Riley, J., concurring) (describing the policy-blended subjective test for a similar phrase in an exclusionary provision); Allstate Ins Co v Freeman, 432 Mich 656, 720; 443 NW2d 734 (1989) (Boyle, J., joined by Brickley; J.) (in interpreting a similar phrase in an exclusionary provision, Justice Boyle -approvingly cited cases in which an intent to injure was inferred from the harmful conduct as a matter of law: she concluded in that case that "I cannot say on the present facts that the denial of an intent to injure 'flies in the face of all reason, common sense and experience’ . . . .”).

See State Mut Ins Co v Russell, 185 Mich App 521; 462 NW2d 785 (1990); Auto-Owners Ins Co v Gardipey, 173 Mich App 711, 715; 434 NW2d 220 (1988); Linebaugh v Berdish, 144 Mich App 750, 762; 376 NW2d 400 (1985). See also Piccard, supra at 553 (Riley, J., joined by Brickley and Mallett, JJ.) ("[W]e conclude that the unforeseen consequences of an insured’s intentional criminal act will preclude coverage where the conduct is addressed directly at the innocent person ..., or the criminal conduct constitutes the injury” [citations omitted]).

The parents of the victim, who are the appellees, also cite Connecticut Indemnity Co v Nestor, 4 Mich App 578; 145 NW2d 399 (1966). In Connecticut Indemnity, supra at 579-581, an eight and a half-year-old boy, Brad Nestor, intentionally started a fire that caused $6,851.91 of damage to another family’s home, but he did not have the intent to cause any damage. The Nestor family insurance policy contained an exclusionary provision that "bodily injury or property damage caused intentionally” was not covered. The Court of Appeals concluded that the trial court properly found that Brad intended the act but not the result and, therefore, the Nestors were protected by their insurer. The present case is distinguishable because the minor’s conduct here was inherently harmful. He forced a girl under six years old to perform fellatio on him. There is no distinction between intending to commit this act and intending to harm her.

See also Gardipey, n 6 supra at 713 (the Court of Appeals inferred an intent to harm where an eighteen-year-old man sexually abused a ten-year-old boy, even though the man was "borderline mentally retarded”).

Other jurisdictions have reached similar results in examining a minor’s sexual molestation of another minor. See, e.g., B B, supra at 1293-1294, 1296 (a minor was between fourteen and fifteen years old when he committed the sexually abusive acts: "[W]e hold that evidence of incapacity based on the age of the insured has no bearing on the application of the inferred-intent standard”); Allstate Ins Co v Roelfs, 698 F Supp 815, 820 (D Alas, 1987) (sixteen years old); Allstate Ins Co v Bailey, 723 F Supp 665, 669 (MD Fla, 1989) (fifteen years old); DWH v Steele, 512 NW2d 586, 589 (Minn, 1994) (eleven years old): "[W]e reject D.H.’s claim that, because he was but 11 or 12 years of age when the alleged assaults occurred, he could not form the requisite intent to injure and should be covered under the policy. [Citation omitted.] (|T]n cases involving nonconsensual sexual contact, the court infers intent to harm as a matter of law and without regard to the insured’s subjective view)”; Illinois Farmers Ins Co v Judith G, 379 NW2d 638, 641-642 (Minn App, 1986) (between thirteen and sixteen years old). But see Allstate Ins Co v Jack S, 709 F Supp 963, 966 (D Nev, 1989) (fourteen years old).

This Court requires the jury to determine as a question of fact whether a child had the capacity to commit a tort by comparing that child to what a child of the same age, ability, intelligence, and experience would reasonably have been expected to do under similar circumstances. Id. See also Serra v DeMaestri, 66 Mich App 171, 175; 238 NW2d 568 (1975) (the Court of Appeals noted that a child seven years or older is liable for his intentional torts as well as for ordinary negligence).

Although not stated in the underlying complaint, plaintiff noted in this Court that the action against the male child was a negligence claim.

In fact, Fire Insurance Exchange did defend the insureds in the underlying action brought by the victim’s family, reserving its rights pending the resolution of this case. .....

The insurance contract did not require that the bodily injury not be expected or intended but only that it be an "accident.” Id. at 596.

The majority notes that the male child got this idea from apparently viewing pornography. Ante, pp 690-691. After the male child had made another young boy perform fellatio on him, the child’s mother merely told him that such conduct was "not nice.” The majority’s decision to refuse to infer an intent to harm allows the possibility that these parents will be protected by their insurer despite their failure to be vigilant in teaching their son respect for himself and respect for the dignity of others.