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American Economy Insurance Co. v. Estate of Wilker6/7/1999
Joseph G. Wilker allegedly sexually abused three minor girls, S. Doe, C. Roe, and Jane Doe, who lived in his neighborhood. After Wilker's subsequent suicide, representatives of the minor girls sued Wilker's estate and his homeowner's insurer, American Economy Insurance Company (American Economy) for, inter alia, negligent infliction of emotional distress. Plaintiffs alleged that Wilker caused the minor girls emotional distress when he accidentally allowed them to observe him sexually abusing one of the girls. American Economy moved for summary Judgement, which the trial court denied. American Economy now appeals.
Upon review of the record, we conclude that S. Doe, C. Roe, and Jane Doe's emotional distress injuries were not caused by an "occurrence" under the insurance policies, and that American Economy therefore has no duty to defend Wilker's estate or provide coverage for the girls' injuries. We reverse the trial court's denial of summary Judgement.
The following evidence is undisputed. Over a period of several years, Joseph G. Wilker allegedly sexually molested S. Doe, C. Roe, and Jane Doe, three minor girls who lived in his neighborhood. The conduct began in approximately 1990 and continued until the fall of 1994. At the beginning of that time, the girls were about nine or ten years old.
Soon after he met the girls, Wilker directed a series of "grooming" behaviors toward them: He gave the girls cigarettes and alcohol, made suggestive comments about their bodies, and touched them inappropriately. In later years, Wilker showed the girls pornography, encouraged them to touch him, and exposed himself to them. Toward the end of this period, Wilker made C. Roe and Jane Doe engage in oral sex, and had intercourse with Jane Doe and S. Doe.
This appeal concerns those occasions on which one of the girls observed Wilker sexually abusing one of the other girls. The record contains accounts of two such incidents. On one occasion, C. Roe turned on the light in a darkened "cubbyhole" in Wilker's basement, and observed Wilker performing oral sex on Jane Doe. On another occasion, Jane Doe, who had been in the cubbyhole with Wilker and C. Roe, left briefly to get a glass of water. When she returned to the cubbyhole, she observed C. Roe performing oral sex on Wilker. According to respondents, Wilker did not intend the girls to observe these two events.
Respondents claim that S. Doe, C. Roe, and Jane Doe suffered emotional distress as a result of observing the sexual abuse encounters, and that the emotional distress caused physical symptoms.
Wilker's alleged conduct came to the attention of the authorities, and he was arrested on September 1, 1994. He was criminally charged with two counts of rape of a child in the first and second degree and two counts of sexual molestation in the first and second degree. On December 28, 1994, Wilker committed suicide.
Representatives of the minors filed two lawsuits in Snohomish County against Wilker's estate and Wilker's homeowner's insurer, American Economy. The lawsuits alleged various causes of action, including sexual assault, battery, and negligence. The negligence claims are based on the theory that Wilker negligently breached a duty of care toward S. Doe, C. Roe, and Jane Doe by engaging in conduct with another minor in their presence which inflicted emotional harm upon them.
American Economy filed a declaratory Judgement action seeking a ruling that there was no coverage under the homeowner's policies for any of the claims and that American Economy had no duty to defend the estate. The trial court granted American Economy's motion for summary Judgement in part, ordering th
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