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Westfield National Insurance Co. v. Continental Community Bank and Trust Co.12/23/2003
natural and probable result of her enabling acts, regardless of whether she could anticipate the precise injury the minors would actually suffer. See Wilson, 96 Ill. 2d at 493-94. Despite the phraseology used in the underlying complaint, the minors have alleged intentional conduct on the part of the aunt, and the minors' cause of action based on negligence is "a transparent attempt to trigger insurance coverage." See Watters, 268 Ill. App. 3d at 510. The allegations presented in the underlying complaint are entirely dissimilar to the circumstances presented in Warren, in which the reviewing court identified a right to recover applied to an "innocent" spouse. See Warren, 71 Ill. App. 3d at 629. Finding that the allegations in the present case established that the aunt was an "innocent" spouse or interpreting the allegations as nothing more than mere negligence would require us to ignore the facts alleged.
We also find support for our conclusion that the instant complaint alleges conduct of an intentional nature from decisions of other jurisdictions addressing similar circumstances. A wife's indifference to her husband's criminal conduct may be characterized as an affirmative act. See Pamela L. v. Farmer, 112 Cal. App. 3d 220, 169 Cal. Rptr. 282 (1980); Doe v. Franklin, 930 S.W.2d 921 (Tex. Ct. App. 1996). In Farmer, the reviewing court found that the respondent wife was not merely negligent in failing to prevent harm to the minor plaintiffs from her husband but that the respondent by her own acts increased the risk of such harm occurring. According to the allegations, the respondent " 'encouraged and invited' " the children to play in her swimming pool, prepared refreshments to " 'entice' " the children, and " 'encouraged the parents ... to permit' " the children to come to her premises by telling them it would be perfectly safe for the children to swim when the respondent was not there, because her husband would be there. Farmer, 112 Cal. App. 3d at 210, 169 Cal. Rptr. at 284. The respondent was alleged to have committed these acts with the knowledge that the husband had molested women and children in the past and that it was reasonably foreseeable he would do so again if left alone with the children on the premises. The court concluded that, by encouraging and inviting the children to be alone with the husband under circumstances where he would have an opportunity to commit such misconduct, the respondent could be held to have intentionally acted and unreasonably exposed the children to harm. Farmer, 112 Cal. App. 3d at 210, 169 Cal. Rptr. at 284.
In the present case, we conclude that the allegations in the underlying complaint are affirmative acts couched in terms of negligence. See Farmer, 112 Cal. App. 3d at 211, 169 Cal. Rptr. at 285. We therefore find that the exclusion provision that bars coverage for bodily injury that is "expected or intended" from the standpoint of the aunt applies and that Westfield has no duty to defend or indemnify the aunt under the allegations of the underlying complaint. We are not persuaded by the minors' attempt to recast as negligence the expected or intended acts of an insured in an attempt to defeat the intended-acts exclusion of Westfield's policies.
We find further support for our decision today in Jessica M.F. v. Liberty Mutual Fire Ins. Co., 209 Wis. 2d 42, 561 N.W.2d 787 (1997). In that case, grandchildren and their parents filed suit against their grandfather and grandmother for sexual abuse by the grandfather. The allegations against the grandmother were for her negligent failure to protect and supervise the children and to prevent the grandfather from committing the sexual abuse. The plaintiffs alleged, among other things, that the grandmoth
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