 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pettit v. Erie Insurance Exchange9/5/1997
, concluded that coverage was not excluded because the insurer had not met its burden of demonstrating that the insured intended to molest the child sexually. The court acknowledged that "once the insurer shows that the touching was intentional molestation, the insurer need not make any additional showing." Dyer did not involve sexual abuse. MacKinnon is a case that we declined to follow in Harpy, and for all of the reasons set forth above, we adhere to that assessment. Moreover, since publication of MacKinnon, the Supreme Court of New Hampshire seems to have retreated from its position on the issue. See Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800, 803 (N.H. 1986) (holding that there was no coverage of child sexual abuse under accidental occurrence policy). McIntyre, which involved application of Alabama law by a United States District Court, ultimately was not followed by the Supreme Court of Alabama. See Davis, 612 So. 2d at 461-62.
Our holding in this case is simply that an adult insured's intent to engage in sexual contact with a child embodies an intent to injure for the purpose of applying the intentional injury exclusion. Contrary to appellants' assertions, our holding does not preclude an insured from arguing incapacity in the appropriate case. The inquiry in such a case should be whether the insured possessed the capacity to form the intent to engage in sexual contact with a child.
JUDGMENT AFFIRMED; APPELLANTS TO PAY COSTS.
Dissenting Opinion by Wenner, J.
Filed: September 5, 1997
Because I do not agree with my colleagues that, as a matter of law, James Kowaiski, an acknowledged pedophile, intended to injure the Pettit children, I respectfully dissent.
Facts
The genesis of this appeal is a complaint filed by Ms. Pettit, individually and on behalf of her children, seeking damages from James Kowalski for having molested her two minor children, Randall and Roger Duprey. In 1992, the Roman Catholic Church carried out the dying request of the children's father, Roger Duprey, and named Kowalski the children's godfather. Kowalski developed a close relationship with the Pettit children.
From 1 April 1991 until 25 May 1993, Kowalski voluntarily and gratuitously cared for and supervised the Pettit children at his homes in Hyattsville, Maryland and Winchester, Virginia. Unknown to the Pettits, Kowalski was suffering from pedophilia, a recognized mental disorder. As I understand it, a pedophile believes her/his relationship with male children is normal.
Consequently, Kowalski views his care, love, affection, and support of the Pettit children as a mutual and consensual expression of love, similar to that in an adult relationship. While Kowaiski was aware of his pedophilia, he failed to inform the Pettits of his condition. Nevertheless, there is nothing to indicate that Kowalski either intended or expected to injure the Pettit children. Rather, Kowalski loved and expressed his love for them in an affectionate and caring manner ordinarily reserved for an adult relationship. In sum, Kowalski was neither violent, nor did he threaten the Pettit children with violence.
During this period, Erie had provided Kowalski with four separate homeowner's and personal catastrophic liability insurance policies covering both his Maryland and Virginia homes.
As I have said, Ms. Pettit filed a complaint in the Circuit Court for Prince George's County charging Kowalski with negligence, and seeking damages from Kowalski for having sexually abused the children. Kowalski then sought from Erie coverage and a defense. Erie declined to provide either, and filed a Bill for Decla
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|