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Pettit v. Erie Insurance Exchange9/5/1997
Opinion by Eyler, J.
Dissenting Opinion by Wenner, J.
Filed: September 5, 1997
This case involves the question of whether, for purposes of determining the applicability of an intentional injury exclusion in various homeowner's liability policies, an insured's intent to injure is presumed as a matter of law from his sexual molestation of two minor boys or whether the question of intent is an issue of fact that may not be resolved on summary judgment. While we have had occasion to consider a similar issue previously in the case of Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md. App. 474, 545 A.2d 718 (1988), appellants seek to distinguish Harpy primarily on the basis that, in this case, there is expert testimony that the insured suffers from "pedophilia," a mental disorder, and consequently, that he did not intend to harm his victims. Consistent with Harpy, we hold that the insured's intent to molest two young boys sexually is sufficient to trigger the intentional injury exclusion of the policies at issue. Accordingly, we shall affirm the judgment of the circuit court.
Facts
Gloria Pettit, as mother and next friend of her two minor children, appellants, filed an action against James Kowalski in the Circuit Court for Prince George's County for injuries sustained by appellants as a result of Kowalski's sexual molestation of the children. The amended complaint alleges that, beginning on or about April 1, 1991, Kowalski befriended the boys' father, Roger Deprey. Approximately one year later, Mr. Deprey died of a brain tumor. The amended complaint further alleges in pertinent part that, between April 1, 1991 and May 25, 1993, (1) Kowalski used his relationship with Roger Deprey and the subsequent death of Roger Deprey to befriend the minor plaintiffs, and to gain the plaintiffs' interest, affection, loyalty, and trust; and (2) as a result of this special relationship and in light of the recent death of their father, Kowalski became very attentive to the minor plaintiffs' needs, providing, at times, care and supervision of the minor plaintiffs, and assuming a fatherly role towards the children. The amended complaint goes on to allege that, unknown to the minor plaintiffs' parents, "Kowalski was a pedophile who, for many years, had had recurrent sexual fantasies and sexual urges with numerous other prepubescent children." It further alleges that, during the relevant time period, Kowalski used his relationship with the minor plaintiffs to act on his pedophilic urges and fantasies as follows:
[Kowalski] committed fellatio and oral sex with the minor Plaintiffs with injury ; undressed the minor Plaintiffs; physically masturbated the minor Plaintiffs; fondled the minor Plaintiffs; and filmed these pedophilic activities, all of which was for the purpose of [Kowalski's] self gratification and satisfaction of [Kowalski's] sexual fantasies as a pedophile[; and]
[While the children were in his custody, Kowalski] allowed, permitted and encouraged others . . . to perform similar pedophilic acts on the [minor Plaintiffs], while in the presence of [Kowalski], for the self gratification and satisfaction of [Kowalski's] sexual fantasies.
While the amended complaint is silent on the issue, the record reveals that the minor appellants were ages seven and nine at the time the sexual abuse first began. After setting forth the factual allegations, the amended complaint then purports to state a cause of action based on various negligence theories. On appeal, appellants specifically identify three negligence theories: (1) negligent care and supervision of the minor children; (2) failure to warn of a dangerous mental condition (pedophilia) an
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