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Westfield National Insurance Co. v. Continental Community Bank and Trust Co.12/23/2003
coverage was sought on behalf of the actual abuser whose victims were seeking relief in a civil forum. In the present case, however, the minors are seeking relief based on the aunt's conduct and not the acts of Valdez, the actual abuser. Therefore, the issue in the present case is whether a duty to defend or indemnify exists as to the spouse of a perpetrator who commits sexual abuse upon minors. In this case, for the reasons articulated below, we hold that the intentional-acts exclusion of the policies applies and precludes Westfield from owing a duty to defend or indemnify the aunt for the injuries she allegedly inflicted upon the minors.
Although no other Illinois court has addressed this particular issue, we note that several reviewing courts have considered whether one spouse-insured may have a right to recover under an insurance policy separate from that of the other spouse-insured who committed an intentional act, the first being Economy Fire & Casualty Co. v. Warren, 71 Ill. App. 3d 625 (1979). In Warren, after a couple's claim for fire damages had been paid by the insurer, the wife admitted setting the fire that caused the loss. The insurer sought restitution of the proceeds paid to the husband and wife. The husband denied any wrongdoing and sought to keep his share of the proceeds received under the insurance policy. The trial court found that the settlement and payment were procured by fraud. On appeal, after considering rulings from other states, the reviewing court declined to impute the intentional act of the wife to the husband. Warren, 71 Ill. App. 3d at 628-29. Instead, the reviewing court identified the husband as an "innocent" insured, and allowed the husband to recover one-half of the insurance proceeds. Warren, 71 Ill. App. 3d at 629. The reviewing court further explained that, had the insurer intended that the wrongdoing of one insured be imputed to another insured, it should have expressed those terms in the policy. Warren, 71 Ill. App. 3d at 629.
Since Warren was decided, other reviewing courts have similarly held that, absent an insurance provision to the contrary, the wrongdoing of one insured cannot be imputed to another insured. See, e.g., Fittje v. Calhoun County Mutual County Fire Insurance Co., 195 Ill. App. 3d 340 (1990); State Farm Fire & Casualty Insurance Co. v. Miceli, 164 Ill. App. 3d 874 (1987); West Bend Mutual Insurance Co. v. Salemi, 158 Ill. App. 3d 241 (1987). In the present case, the minors filed suit against the aunt seeking damages based on the aunt's allegedly negligent conduct, which purportedly led to Valdez's molestation of the minors. The inferred-intent rule clearly precludes any duty to defend or indemnify Valdez, as his intent to cause bodily harm to the minors is inferred as a matter of law by his conduct. See Kelly, 309 Ill. App. 3d at 805-07; Bobo, 268 Ill. App. 3d at 520; Watters, 268 Ill. App. 3d at 507. Based upon the principles articulated in the Warren line of cases, we decline to impute the intent of Valdez to the aunt and will instead focus on the provisions of the policy and the allegations of the underlying complaint in determining whether the intentional-acts exclusion applies to preclude Westfield from having a duty to defend or indemnify the aunt. See National Union Fire Insurance Co., 329 Ill. App. 3d at 234. In doing so, we reject the minors' argument that the trial court abused its discretion when it refused to allow them to depose the aunt before ruling on Westfield's motion for summary judgment. See Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons, 315 Ill. App. 3d 552, 567 (2000) (stating that, where summary judgment is sought in the context of a declaratory judgment action to determine whether
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