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Pettit v. Erie Insurance Exchange9/5/1997
d/or failure to refrain from harmful conduct; and (3) failure to take reasonable steps to make his premises safe (i.e., premises liability).
During all or some portion of the relevant time period, Kowalski was insured under three different types of liability insurance policies issued by Erie. For the entire time period, Kowalski was covered by a HomeProtector 2003 Policy. This policy contains a broad coverage clause that covers all sums the insured becomes legally obligated to pay because of bodily injury or property damage covered by the policy. The policy excludes "bodily injury or property damage expected or intended by anyone we protect." For the time period from May 1993 through May 1994, essentially for the last month the abuse allegedly occurred, Kowalski was covered by an Ultrasure Package Policy for Landlords and a HomeProtector 2004 Tenantcover Edition Policy. These latter two policies limit coverage to personal injury and property damage caused by an occurrence and define occurrence as "an accident, including continuous or repeated exposure to the same general harmful conditions." These policies exclude "injury or damage expected or intended from the standpoint of the insured." In addition, the Tenantcover Policy contains a clause excluding "bodily injury or property damage which arises out of the sexual molestation, corporal punishment or physical or mental abuse by anyone we protect." While appellants acknowledge that the sexual molestation exclusion, if applicable in the instant case, would exclude coverage, Erie informs us that this particular exclusion was not approved by the Maryland Insurance Commissioner until 1995, and thus, Erie concedes that it has no application to the instant case.
On November 9, 1994, Erie filed a declaratory judgment action claiming that it owes no defense or coverage under any of the policies for Kowalski's acts. By stipulation, the parties agreed to stay the underlying tort action until resolution of the declaratory judgment action. The parties filed cross-motions for summary judgment. In opposition to Erie's motion for summary judgment, appellants submitted (1) an affidavit of James Kowalski wherein Kowalski stated that he neither expected nor intended to injure the minor appellants; (2) portions of the transcript of Kowalski's criminal trial containing testimony of Fred Berlin, M.D., Michael Sweda, Ph.D., and Joanna Brandt, M.D., including their conclusions that Kowalski is a pedophile; and (3) an affidavit of Neil H. Blumberg, M.D. who, upon review of Kowalski's medical records and the trial testimony of Drs. Berlin, Sweda, and Brandt, concluded that (a) Kowalski suffers from a mental disorder known as pedophilia, (b) pedophilia is not characterized by intent to injure or harm the sexual partner, and (c) based on the fact that Kowalski is a pedophile, it is Blumberg's opinion to a reasonable degree of medical probability that Kowalski did not have the intent to harm the minor appellants.
Following a hearing, the circuit court concluded that the policies provide no coverage as a matter of law, and granted Erie's motion for summary judgment and denied appellants' motion for summary judgment. This appeal followed.
Questions Presented
Appellants present three questions on appeal that really are restatements of but a single issue:
Did the circuit court err by concluding, as a matter of law, that the allegations in the amended complaint do not give rise to a "potentiality of coverage" under any of the insurance policies?
Standard of Review
Under Rule 2-501(a), a party may file a motion for summary judgment "on the ground that there is no genuine dispute as to material fa
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