Pettit v. Erie Insurance Exchange9/5/1997
lt and a child, whether or not accompanied by force, is injurious to the child.
Appellants next seek to distinguish Harpy on the basis that the insured's affidavit stated only that he did not expect that his daughter would suffer "the type of injuries that she has alleged in her complaint," as distinguished from Kowalski's claim that he did not intend or expect that his conduct would cause any injury. Our entire discussion in Harpy, however, focused on presumed intent as a matter of law, rather than on the sufficiency of the particular evidence supplied by the insured. Accordingly, we do not believe that this difference supplies a relevant distinction.
Appellants further seek to distinguish Harpy on the basis that it involved different issues of contract interpretation, given that Erie "intentionally failed to utilize a 'sexual molestation exclusion. . . .'" As we noted earlier, Erie included a sexual molestation exclusion in one of the policies at issue, but that exclusion was not approved by the Maryland Insurance Commissioner until after the pertinent dates of coverage. The issue before us is the interpretation of the intentional injury exclusion, the exact issue that was before us in Harpy.
As we noted in Harpy, other jurisdictions that have decided the issue are almost unanimous in their exclusion of coverage for child sexual abuse under the intentional injury exclusion, regardless of whether they apply a subjective or an objective standard. See, e.g., State Farm Fire and Cas. Co. v. Davis, 612 So. 2d 458 (Ala. 1993); CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (Ark. 1984); J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d 1009, 804 P.2d 689, 278 Cal. Rptr. 64 (Cal.), cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232, 112 S. Ct. 280 (1991); Scudder v. Hanover Ins. Co., 201 Ill. App. 3d 921, 559 N.E.2d 559, 147 Ill. Dec. 386 (Ill. App. 1990); Worcester Ins. Co. v. Fells Acres Day School, 408 Mass. 393, 558 N.E.2d 958 (Mass. 1990); Linebaugh v. Berdish, 144 Mich. App. 750, 376 N.W.2d 400 (Mich.App. 1985); Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn. 1982); Illinois Farmers Ins. Co. v. Judith G., 379 N.W.2d 638 (Minn.App. 1986); Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 589 N.E.2d 365, 581 N.Y.S.2d 142 (N.Y. 1992); Rodriguez v. Williams, 107 Wash. 2d 381, 729 P.2d 627 (Wash. 1986); Grange Ins. Ass'n v. Authier, 45 Wash. App. 383, 725 P.2d 642 (Wash.App. 1986); Western Nat. Assur. Co. v. Hecker, 43 Wash. App. 816, 719 P.2d 954 (Wash.App. 1986); Horace Mann Ins. Co. v. Leeber, 180 W. Va. 375, 376 S.E.2d 581 (W.Va. 1988); State Farm Fire and Cas. Co. v. Estate of Jenner, 874 F.2d 604 (9th Cir. 1989) (applying California law); Foremost Ins. Co. v. Weetman, 726 F. Supp. 618 (W.D. Pa. 1989), aff'd, 904 F.2d 697 (3rd Cir. 1990) (predicting Pennsylvania law); Whitt v. DeLeu, 707 F. Supp. 1011 (W.D. Wis. 1989) (predicting Wisconsin law); Allstate Ins. Co. v. Roelfs, 698 F. Supp. 815 (D. Alaska) (predicting Alaska law). But see Loveridge v. Chartier, 161 Wis. 2d 150, 468 N.W.2d 146 (Wis. 1991) (intentional injury exclusion did not apply where insured transmitted herpes simplex virus to seventeen year old girl during consensual sex with the girl even though, under Wisconsin law, sex between an adult and a minor aged 16 to 18 constitutes a misdemeanor).
Appellants identify four cases that they assert hold to the contrary: State Farm Fire & Cas. Co. v. Nycum, 943 F.2d 1100 (9th Cir. 1991); Alabama Farm Bureau Mutual Cas. Inc. Co. v. Dyer, 454 So. 2d 921 (Ala. 1984); MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 471 A.2d 1166 (N.H. 1984); State Auto Mutual Ins. Co. v. McIntyre, 652 F. Supp. 1177 (N.D. Ala. 1987). In Nycum, the Ninth Circuit, applying California law
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