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Pettit v. Erie Insurance Exchange9/5/1997
nd (3) failing reasonably to protect the Pettit children from being injured by his pedophillic activities. The underlying tort action went on to claim that Kowalski's breach of duty injured the Pettit children, and sought damages for those injuries.
Erie's policies provide: "We will pay all sums which anyone we protect becomes legally obligated to pay as damages because of bodily injury or property damage covered by this policy." Three of Erie's policies also provide: "If anyone we protect is sued for damages because of bodily injury or property damage covered by this policy, we will provide a defense with a lawyer we choose, even if the allegations are not true.
In view of this language, and that the underlying tort action charged Kowalski with negligence, I believe Erie was obliged to provide Kowalski with coverage and a defense. According to Erie, the "intentional injury " exclusion relieves it of its duty to provide Kowalski either with coverage or with a defense. The intentional injury exclusion upon which Erie relies provides: "WHAT WE DO NOT COVER (1) Bodily injury or property damage expected or intended by anyone we protect."
Thus, in determining whether potential coverage exists, it must be determined whether Kowalski's pedophillic acts constitute "bodily injury expected or intended by anyone we protect. The trial court believed this exclusion clause excluded Ms. Pettit's claims from potential coverage. I disagree. While Erie urges that Kowalski's pedophillic acts, as a matter of law, constitute intentional injuries, I find no Maryland precedent supporting Erie's position.
No doubt relying on society's visceral reaction to pedophiles, with which I certainly agree, Erie urges us to create an exception to the long established and familiar framework of negligence. That is that, in a situation such as the one now before us, Kowalski intended to injure the Pettit children. While I agree that Kowalski's actions are not only egregious, but well beyond the moral views of our society, the long established framework of negligence as it has evolved over these many years must be considered.
Maryland has long applied a subjective standard in cases involving intentional torts. That is, not only must the intent of the individual who committed the intentional act be considered, but also the intent to cause the injury suffered from the intentional act. For example, in Allstate Ins. Co. v. Sparks, 63 Md. App. 738, 493 A.2d 1110 (1985), we held that, although the insured's son intended to syphon gasoline from a truck parked near a mill, he did not intend to cause the fire that destroyed the mill. Consequently, we concluded that the policy's intentional injury exclusion did not apply.
In Allstate, in construing the language of the exclusion that "damage which is either expected or intended from the standpoint of the insured," we opined that "first, there is the question of whether the results or the means must have been intended. The Allstate policy indicates, in our view, that the insured must have intended the results ("damages"), not simply the causing act, for coverage not to apply." Id. at 742 (emphasis in original).
As I believe the language of the exclusion clause in the policies in question is similar to that in Allstate Ins. Co., I would here apply the same standard.
In Ghassemieh, 52 Md. App. 31, 447 A.2d 84, we distinguished between intended acts and intended harm. There, we said, "While it is true that the absence of intent to harm is essential to the legal conception of negligence, . . . the presence of an intent to do an act does not preclude negligence." Id. at 40 (quoting Adams v. Carey, 172 Md. 173, 186, 19
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