No. 92-180
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
-- -
FARMERS UNION MUTUAL INSURANCE,
Plaintiff and Respondent,
-vs-
RON KIENENBERGER, PATTI KIENENBERGER,
JARET KIENENBERGER, AND J.L.
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Patrick F. Flaherty, Attorney at Law, Great Falls,
Montana (KIenenberger)
John E. Se:
idlitz, Jr., Attorney at Law, Great Fa1
Montana ( J.L.)
For Respondent:
William J. Gregoire, Smith, Walsh, Clarke
Gregoire, Great Falls, Montana
Submitted on Briefs: November 24, 1992
Decided: February 25, 1993
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Eighth
Judicial District, County of Cascade, State of Montana, the
Honorable John M. McCarvel presiding. The Kienenbergers and J.L.
appeal from an order granting the respondent, Farmers Union Mutual
Insurance (Farmers Union) summary judgment on the basis that it
owed no duty to defend or indemnify its insured, Ron Kienenberger,
in the underlying action. We affirm.
The underlying action arose in January 1991, when Ron
Kienenberger's son Jaret, age 13, raped J.L., age 28. In the
ensuing criminal proceedings, Jaret pled guilty to sexual
intercourse without consent. J.L. then sued Jaret's parents on a
theory of negligent supervision. She alleged in her complaint that
the Xienenbergers owed a duty to her and to others to provide
appropriate supervision to their child, Jaret Kienenberger, and
that they had negligently supervised his upbringing "to the point
where it was reasonably foreseeable that he would be a danger to
himself and to third parties." The District Court dismissed J.L ' s
.
action in April, 1992, on the Kienenbergers' motion, and J.L.
appealed. Her appeal has not been decided.
The case before the Court is a declaratory judgment action
instituted in District Court in October 1991 by Farmers Union.
Farmers Union sought an order that it owed no duty to its policy
holder, Ron Kienenberger, even though it had retained counsel for
the Kienenbergers in J.L.'s action. The District Court held that
under Ron Kienenberger's Farm and Ranch Liability Policy, Farmers
2
Union was not obligated either to indemnify or to defend the
Kienenbergers against J.L.ls claim for damages,
The dispositive issue on appeal is whether the District Court
erred in finding that 15ienenbergersv insurance policy precluded
coverage because J.3;. s injuries were not caused by an vtoccurrencevv
as defined in the policy. Appellants also question whether the
District Court erred in finding that coverage was precluded by a
clause in the policy that expressly excluded injuries caused by
sexual molestation. We do not decide this issue because we affirm
the District Court on the first issue. Appellants also raise
another issue: whether negligent supervision by Jaret
Kienenbergervsparents is an ~occurrencegl which Farmers Union
for
was obligated to provide coverage. The ~istrictCourt did not
address this issue and we will not decide it here.
The policy provided that Farmers Union would pay damages for
bodily injury or property damage caused by an vvoccurrence,defined
as "an accident . . . neither expected nor intended from the
standpoint of the insuredv1(emphasis added). An intentional act
because it is not an accident and because
cannot be an vvoccurrencevv
it is intended or expected by the insured. Therefore, injuries
caused by an insured personvsintentional act are not covered. New
Hampshire Insurance Group v. Strecker (1990), 244 Mont. 478, 481,
798 P.2d 130, 132.
It is undisputed that as a member of Ron Kienenbergergs
household Jaret was an insured, and that Jaretlssexual assault of
J.L. was intentional. Summary judgment is proper when the record
discloses no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.p.; also see Truck Insurance Exchange v. Waller (Mont.
1992), 828 P.2d 1384, 1386, 49 St.Rep. 318, 319. Since it is
undisputed that J.L.'s injuries were caused by an insured person's
intentional act, and the insurance contract clearly and
unambiguously excludes coverage for intentional torts, Farmers
Union is entitled to summary judgment as a matter of law.
AFFIRMED.
We concur:
Justices
4
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the result of the majority opinion because I
conclude that Jaretts conduct constituted sexual molestation and
that damages for such conduct were specifically excluded by the
terms of the policy.
I dissent from the majority 's conclusion that J. L. 's injuries
were not an occurrence within the meaning of the policy.
J. L Is claim against the parents is not based upon inten-
.
tional conduct by the parents. It is based upon their alleged
negligent failure to supervise their son, Jaret. Therefore, the
authority relied upon by the majority is not on point and should
not control the disposition of this case.
In New Hampshire Zrtsurance Group v. Strecker ( 199 0 ) , 2 4 4 Mont . 4 78, 798
P.2d 130, the insured sought coverage for his own sexual assault
and molestation of his daughter. We held that under those
circumstances his conduct was not an ttoccurrencett
within the
meaning of the policy because it was not an accident and because
the consequences of his conduct were intended.
In this case, even though the Kienenbergers are accused of
negligently failing to supervise their son, there is no allegation,
nor is it reasonable to conclude that by their negligent conduct
they ever intended that their son would sexually assault J. L. or
any other person. The circumstances in this case are much more
similar to, and therefore, controlled by our decision in Lindsay
Drilling and Contracting v. United States Fidelity and Guaranty Company ( 19 8 4 ) , 2 08
Mont. 91, 676 P.2d 203. In that case, the plaintiff claimed that
among other things, Lindsay negligently allowed its employees to
interfere with samples taken from drilled test holes at the site of
mining claims. USF&G insured Lindsay, and like the insurer in this
case, sought a declaratory judgment to the effect that the conduct
of its insured which was complained of did not fall within the
risks covered by its policy of insurance. In that case, USF&G
relied on the same definition of ~occurrencel~
that is found in the
policy that we construe in this case and contended that since
intentional conduct was the basis for the plaintiffls complaint,
there was no occurrence within the meaning of the policy. We
disagreed and held as follows:
A covered occurrence, as defined in the policy, is one
whose consequences were neither expected nor intended by
the insured. In Northwestern Natio~zal Casualty Co. v. Phalen
(l979), 1 8 2 Mont. 448, 597 P.2d 720, we held that an
insurance policy with the same definition of lfoccurrencelt
covered an intentional act whose consequences were
neither expected nor intended. Here, the counterclaim
alleges in part that Lindsay neqlisently allowed
bystanders to tamper with the core samples, his
scenario does not include intended or expected
consequences. Therefore, the counterclaim sets forth a
covered noccurrencew as defined in the policy, if bodily
injury or property damage resulted, [Emphasis added.]
Likewise, in this case, J. L. Is claim accuses Ron and Patti
Kienenberger of negligent conduct which assumes that the
consequences complained of were never intended nor expected by
those insureds. She does not allege on appeal that the
Kienenbergers' son, Jaret, is a covered insured based on his
intentional conduct.
The distinction that the majority is unable to make was made
clearly by the U.S. District Court for the Southern District of
Florida in United States Fidelity and Guaranty Company v Toward
. .
(S D. Fla
1990), 734 F. Supp. 465. In that case, James and Rosario Toward
operated a school and were insured in that business by USF&G. The
parents of some students alleged that certain teachers at the
school had molested their children while they were pupils at the
school. They filed lawsuits alleging molestation. They named the
Towards as defendants, and alleged that they had negligently hired
and then negligently supervised employees at their school.
A complaint for declaratory judgment was filed by USF&G to the
effect that it had no duty to defend the Towards, based upon the
same definition of "occurrence" that exists in this policy and that
was found in the Lindsay policy. The district court disagreed and
held that :
The last part of the definition--"which results in
bodily injury ... neither expected nor intended from
the standpoint of the insuredt1--alsosupports a finding
of a duty to defend. This language is applicable to the
case here because the accident, the acts of negligent
supervision in hiring, could be the legal and proximate
cause of the injuries of the molested children.
Toward, 734 F. supp. at 467.
In the Toward case, the insurer also sought to rely on prior
case law similar to the Strecker decision relied upon by the majority
in this case. In Landk v Allstate Insurance Company (Fla. 1989) ,
. 546
So. 2d 1051, coverage was excluded for an act of child molestation.
However, the Federal District Court for Florida distinguished Landis
for the following reasons:
However, this case (Landis) does not support the
plaintiff's (USF&G) attenuated reasoning. First, the
Florida Supreme Court was considering a homeowner's
policy, not an explicit "public liability policy"
covering a school explicitly. Furthermore, the Landis
court, in pertinent part, interpreted an intentional tort
exclusionary clause in an insurance policy. The insured was
sued for his acts of child molestation. The issue was
whether, under the contract language, a child molester
can commit his misconduct without intending to injure the
child. Indeed, the clause in the case at bar regarding
a "bodily injury . .. neither expected nor intended from
the standpoint of the insured" is applicable to the Landis
analysis. The supreme court merely held that an insured
child molester intends, as a matter of law, to harm the
child.
This holding is not at issue here. The state [sic]
plaintiffs, taking their allegations as true, do not seek
to recover from insured molesters. The allegations are
that the named defendants allowed other parties to molest
the children. [Underlining emphasis added.]
Toward, 734 F. Supp. at 468.
Likewise, plaintiff in the underlying tort action in this case
does not seek to recover from the parents for their intentional
conduct. The basis of her effort to recover against them is that
they negligently allowed their son to commit a violent offense
against plaintiff. These facts are clearly distinguishable from
the facts in the Strecker decision. These facts are controlled by our
decision in Lindsay.
I would reverse the District Court's conclusion that Farmers
had no duty to defend nor indemnify its insureds, Ron and Patti
Kienenberger, based upon the definition of vtoccurrencetl
within
their insurance policy.
I do conclude, however, that coverage was excluded under the
terms of Farmers* policy based on the "sexual molestation" clause
which excluded coverage for bodily injury arising out of sexual
molestation. Although there are no decisions in Montana which
specifically define sexual molestation, and even though it is not
defined within the terms of the policy, it is clear from the use of
that language what kinds of injury were intended to be excluded.
Molest means to annoy, disturb, or persecute, especially with
hostile intent or injurious effect. It is often defined as an
annoying sexual advance. WebstertsNew Collegiate Dictionary 764
(1984).
Therefore, I conclude that the damages sustained by J. L. as
a result of Jaret 's conduct were excluded from coverage in Farmers
policy with the Kienenbergers.
For these reasons, I concur with the result of the majority
opinion, although I disagree with its rationale.
Justice William E. Hunt, Sr., concurs in the foregoing
concurrence and dissent of Justice Trieweiler.
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
John E. Seidlitz, Jr.
Attorney at Law
P.O. Box 1581
Great Falls, MT 59403-1581
Patrick F. Flaherty
Attorney at Law
625 Central Ave. W., #I01
Great Falls, MT 59404
William J. Gregoire
Smith, Walsh, Clarke & Gregoire
P.O. Box 2227
Great Falls, MT 59403-2227
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F MONTANA