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Pettit v. Erie Insurance Exchange9/5/1997
ed the question.
In Atwood, the Court of Appeals addressed the question of whether an insurer could relitigate the issue of negligence in a post-tort trial declaratory judgment action. 319 Md. at 247. In setting forth the operative principles, however, the Court noted that "where the allegations in the tort suit against the insured obviously constitute a patent attempt to recharacterize, as negligent, an act that is clearly intentional, we believe that a declaratory judgment action prior to the trial of the tort case is permissible." Id. at 253. The Court then discussed favorably a case from the Supreme Court of Colorado, Troelstrup v. District Court, 712 P.2d 1010 (Colo. 1986), that is directly on point. In Troelstrup, the underlying tort action was an action by a minor against the insured for engaging in homosexual acts and committing a sexual assault upon the minor. It further was alleged that the insured photographed and developed nude and erotic photographs of the minor. The Atwood Court noted that Colorado, similar to Maryland, generally prohibits the use of pre-tort trial declaratory judgments to resolve coverage disputes. Id. The Court then noted that the Troelstrup court "held that in situations where 'the nature and character of the act is such that the intent to inflict injury may be inferred as a matter of law,' a declaratory judgment action before the tort trial is appropriate. Atwood, 319 Md. at 253-54. The Court went on to "agree with the Supreme Court of Colorado that, when an intent to injure may be inferred as a matter of law, a pre-tort trial declaratory judgment action may be an appropriate proceeding in which to resolve the coverage issue." Id. at 254. Further, as examples of cases wherein an intent to injure may be inferred as a matter of law, the Court cited to a number of cases involving "'negligent' sexual assault," including Allstate Ins. Co. v. Kim W., 160 Cal. App. 3d 326, 331-32, 206 Cal. Rptr. 609 (1984), a case on which Erie now relies. While the Court's discussion of inferred intent in Atwood did not constitute a direct holding, the Court clearly signaled a willingness to hold that intent to injure may be inferred in certain cases, and that cases involving sexual molestation are one such type of case.
Our holding in this case similarly is consistent with our holding in Harpy, supra. In Harpy, we held that the insured's intent to injure his minor daughter by sexually molesting her was not an issue that would be decided in the underlying tort action, but instead, intent to injure could be presumed as a matter of law. Accordingly, we upheld summary judgment in favor of the insurer in a pre-tort trial declaratory judgment action. Similar to this case, we held that sexual abuse is excluded under the intentional injury exclusion regardless of whether an objective or subjective test is applied. 76 Md. App. at 482-84. We similarly distinguished Sparks on the basis that while there is no substantial certainty that one stealing gasoline will start a fire, there is substantial certainty that sexual molestation of a child by her father over an extended period of time will cause that child to suffer serious harm. Id. at 483. We further noted:
While it is true that an intended act causing unintentional injury , under some circumstances, can be considered negligence, "as the probability of injury to another, apparent from the facts within his knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it reaches the substantial certainty of harm which juries, and sometimes courts, may find inseparable from intent itself.
Id. at 483-84 (quoting Ghassemieh v. Schafer, 52 Md. App. 31, 41, 447 A.2d 84, cert. denied, 294 Md. 543 (1
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