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State Farm Lloyds v. C.M.W.8/17/2001
t, even if true, are excluded by the policy, the insurer does not have a duty to defend regardless of the legal theories involved in the case.") There is no bright-line rule for determining whether intent to harm should be inferred as a matter of law. S.S., 858 S.W.2d at 379. To make such a determination, each specific set of facts must be considered on a case-by-case basis. Id. We turn now to that task.
We first address W.'s claims of negligence based upon Borum's threat to commit suicide if W. told anyone about his conduct with W. and encouraging W. to lie to her physicians, thus preventing her from getting proper medical assistance, intervention, and counseling. The very nature of these allegations reveals that Borum was aware of the wrongful nature of his conduct and that such conduct would harm W. If these allegations are tied to the sexual battery of W., then they are related and interdependent on the sexual molestation and, pursuant to Texas law, the inferred intent rule applies. Folsom, 26 S.W.3d at 559. If these allegations are, instead, tied to the alleged "boundary violations," then the fact that Borum threatened to commit suicide if W. told anyone about the conduct and encouraged W. to lie to her physicians reveals the "boundary violations" themselves were so extreme or outrageous that an intent to harm can be inferred as a matter of law, despite the fact these actions did not involve sexual contact. See Maayeh, 850 S.W.2d at 196 (citing S.S. v. State Farm Fire & Cas. Co., 808 S.W.2d 668, 670-71 (Tex. App._Austin 1991), aff'd 858 S.W.2d 374 (Tex. 1993)). Accordingly, in this case, we infer intent to harm from Borum's threats to commit suicide and his encouraging W. to lie to her doctors.
We next address W.'s claims that Borum negligently failed to report child abuse as required by law and failed to seek counseling in order to prevent himself from continuing to commit the alleged acts. W. specifically alleged Borum failed to report child abuse as required by law under section 261.109 of the Texas Family Code. Section 261.109 states " person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter." Tex. Fam. Code Ann. ยง 261.109 (Vernon 1996).
If this claim is based upon Borum's sexual molestation of W., a claim of negligent failure to report such conduct is the same as a claim of negligent failure to report one's own pedophilia. Such a claim does not give rise to either the duty to defend or the duty to indemnify under Texas law. In Commercial Union Insurance Co. v. Roberts, 7 F.3d 86 (5th Cir. 1993), the petition alleged the insured was negligent in failing to obtain treatment for pedophilia and in failing to have an adult present at times of risk. Id. at 87. In holding the insurer had no duty to defend or indemnify, the court stated that the negligent and intentional allegations were related and interdependent. Id. at 89-90 (applying Texas law); see also J.E.M., 928 S.W.2d at 671, 674-75 (no duty to defend claims of negligence in failing to inform other responsible adults of insured's sexual misconduct and in failing to seek professional help for such conduct); Allstate Ins. Co. v. Mauldin, 869 F. Supp. 478, 479-80 (W.D. Tex. 1994) (no duty to defend or indemnify insured against claim of negligent failure to obtain treatment for pedophilia in connection with sexual molestation).
Further, if W.'s negligence claim based on Borum's failure to report child abuse under section 261.109 is based upon the alleged "boundary violations," such claim cannot give rise to a duty to defend or indemnify as a
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