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Pettit v. Erie Insurance Exchange9/5/1997
0 A. 815 (1937)).
Consequently, in order for Erie's intentional injury exclusion to apply, I believe it must be shown that Kowalski intended to injure the Pettit children, rather than merely to express his love for them in such an unfortunate manner.
The intentional injury exclusion here at issue is similar to that which recently confronted the Court of Appeals in Bailer v. Erie Ins. Exchange, 344 Md. 515, 687 A.2d 1375 (1997). Notably, in Bailer Erie conceded in its brief that the intentional injury exclusion did not preclude coverage for a tort that "produces an unintended result, even if the means were intended." Id. at 528. Not surprisingly, here Erie makes no such concession. Instead, Erie attempts to distinguish Bailer because the Bailer policy was an excess coverage policy, while that in the case at hand is a basic liability policy. As I see it, this distinction is of no avail to Erie.
The approach we adopted in Allstate and Ghassemieh is supported by 7A Appleman, INSURANCE LAW AND PRACTICE, ยง 4492.02 (1979):
The rebuttable presumption that a person intends the ordinary consequences of his voluntary act that is used in determining responsibility for the consequences of a voluntary act has no application to the interpretation of terms used in insurance contracts. The word "intent" for purposes of tort law and for purposes of exclusionary clauses in insurance policies denotes that the actor desires to cause the consequences of his act or believes that consequences are substantially certain to result from it.
Id. at 29 (footnote omitted).
We held in Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md. App. 474, 545 A.2d 718, 545 A.2d 718 (1988), a case somewhat similar to the instant case, that, under the facts there presented, the insured was not entitled to coverage for having sexually abused his daughter. The Harpy facts, however, differ in three important respects from those in the case at hand.
First, the insured in Harpy was not a pedophile, and suffered no mental disorder precluding him from forming the required intent to injure. Thus, Erie concedes that this issue was neither raised in nor addressed in Harpy.
Second, we emphasized in Harpy that Harpy had submitted an affidavit that he did not intend or expect "that [the child] would suffer the type of injuries that she has alleged in her complaint against me." While we pointed out that such a self-serving affidavit was of no avail to Harpy, I believe it is instructive to observe the language chosen by Harpy, that he neither intended nor expected that the child would suffer "the type of injuries that she has alleged in her complaint . . . ." rather than that he neither intended nor expected that she would suffer any injury. Here, however, Kowalski is a pedophile. While he may have intended his pedophillic acts, he may not have intended to injure the Pettit children. I believe this is a question for the fact finder.
Moreover, Harpy involved rape, while in the case at hand there is no evidence of violence or of rape. Although in occasionally encouraging his pedophile friends to participate, Kowalski may have intended to injure the Pettit children, I believe this is likewise a question for the fact finder.
In conclusion, I believe that in cases such as the one at hand, a pedophile's intent to injure the child involved should be submitted to the fact finder, not determined as a matter of law. I believe submitting such evidence to the fact finder, comports with the familiar and long established framework of negligence tort law. Consequently, I believe that the trial court erred in granting Erie's motion for summary judgment.
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