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Westfield National Insurance Co. v. Continental Community Bank and Trust Co.12/23/2003
of emotional distress upon the children, which resulted from the defendant's sexual molestation. Watters, 268 Ill. App. 3d at 502. The defendant tendered his defense to State Farm, and State Farm sought a declaratory judgment with respect to the policy. The trial court determined that the homeowner's policy provided coverage for the defendant's actions and that State Farm was required to defend and indemnify the defendant in the civil suit. Watters, 268 Ill. App. 3d at 505.
On appeal, State Farm argued that its policy did not provide coverage because the defendant's sexual misconduct was intentional and not an "accident." In determining whether the "occurrences" were "accidents" triggering coverage or whether the policy's exclusion provision applied, the reviewing court considered whether the injury was expected or intended from the standpoint of the insured. Watters, 268 Ill. App. 3d at 506. The reviewing court found the Scudder court's reasoning persuasive and reversed, holding that, despite the defendant's diminished mental capacity, his specific intent to injure would be inferred as a matter of law, precluding coverage under the homeowner's policy. Watters, 268 Ill. App. 3d at 507. The reviewing court also considered and rejected the argument that the cause of action for negligent infliction of emotional distress should be covered under the policy, finding that the allegations of negligence were "a transparent attempt to trigger insurance coverage." Watters, 268 Ill. App. 3d at 510.
In Western States Insurance Co. v. Bobo, 268 Ill. App. 3d 513, 519-20 (1994), the reviewing court explained the public policy rationale underlying the inferred-intent rule in that, although some innocent victims may go uncompensated, the " 'benefit [of compensating sexual abuse victims with insurance proceeds] is outweighed by the effect of allowing sexual offenders to escape having to compensate minors for the harm' " they caused. Bobo, 268 Ill. App. 3d at 521, quoting Whitt v. De Leu, 707 F. Supp. 1011, 1016 (W.D. Wis. 1989). In Kelly, 309 Ill. App. 3d 800, the First District considered whether intent could be inferred as a matter of law to exclude coverage when the allegations of sexual conduct with a minor were phrased in terms of negligence. In determining that inferred-intent applied to free the insurance company from its duty to defend, the reviewing court stated that "the parties did not intend to include in the definition of 'occurrence' inappropriate sexual misconduct of a minor." Kelly, 309 Ill. App. 3d at 806. The court also reasoned that a homeowner would not believe that he was paying for such coverage and would not want to share that type of risk with other policyholders. Kelly, 309 Ill. App. 3d at 807.
The general rule flowing from the foregoing cases is that an insurance company is under no duty to defend or indemnify an insured who sexually abuses a minor, because the nature of the conduct itself conclusively establishes as a matter of law that the insured expected or intended to injure the victims. See Kelly, 309 Ill. App. 3d at 805-07; Bobo, 268 Ill. App. 3d at 521; Watters, 268 Ill. App. 3d at 507; but see Country Mutual Insurance Co. v. Hagan, 298 Ill. App. 3d 495, 504-06 (1998) (holding that an intent to injure is not inferred when the abuser is also a minor). Coverage is not triggered because an insured's sexual abuse of a minor does not fall within the definition of "occurrence." See Kelly, 309 Ill. App. 3d at 806. Further, the "expected or intended acts" exclusion provision of an insurance policy applies to exclude coverage for an insured's sexual abuse of a minor. Scudder, 201 Ill. App. 3d at 928.
We recognize that, in the Scudder, Watters, Bobo, and Kelly cases,
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