Summary
In Morris, on which Plaintiff relies, a Connecticut Superior Court held that a count labeled "false imprisonment" did not trigger coverage under a policy that excluded action for sexual abuse, because the claims for false imprisonment claim grew out of an act of sexual abuse. SeeMorris, 2004 WL 1730133, at *9–10.
Summary of this case from Farm Family Cas. Ins. Co. v. SamperiOpinion
No. CV02-0173643S
July 1, 2004
MEMORANDUM OF DECISION
This case involves a declaratory judgment action brought by the Mount Vernon Fire Insurance Company v. James Morris III and Pediatric Day and Night Care LLC. Mr. Morris was the Executive Director of that entity and on its behalf, he applied to the plaintiff for a general liability insurance policy on November 20, 1998. That policy was issued on September 1, 1999 effective March 23, 1999 through March 23, 2000 and thereafter renewed for an additional year based on a renewal application dated February 4, 2000.
Mount Vernon's claims are set forth in its four-count amended complaint of August 27, 2002. It asks the court to declare that its policy does not apply to the claims made against Morris and Pediatric Day and Night Care LLC in the underlying action which will be discussed shortly; to declare that it owes no duty to defend or indemnify those defendants in the underlying action because the insurance provided does not apply to such claims and to declare that the policy is null and void due to the defendants' material misrepresentations in their application for insurance. The insurance policy is attached to the Amended Complaint as Exhibit A and the renewal policy effective March 23, 2000 as Exhibit B.
The business of Pediatric Day and Night Care LLC was the operation of a day care center for children under 13 years of age. The underlying action entitled Jane Doe P.P.A. John Doe v. James P. Morris III and Pediatric Day and Night Care LLC, was brought on behalf of a minor child, age 2-3, against Morris and Pediatric for acts of sexual molestation alleged to have been perpetrated by James Morris. That underlying action is attached to the Amended Complaint as Exhibit D. That complaint in its first six counts are all directed to the individual defendant James P. Morris III. The seventh count is specifically directed at Pediatric Day and Night Care LLC for its negligent supervision of James P. Morris III.
In the first count of the underlying complaint, the plaintiff alleges a sexual assault by James P. Morris on the minor child, in the second count, battery, in the third count, False Imprisonment, in the fourth count intentional infliction of Emotional Distress, in the fifth count, Negligent Infliction of Emotional Distress and in the Sixth count a violation of C.U.T.P.A. Connecticut General Statutes § 42-110a et seq. All of these counts have in common the first 20 paragraphs of Count I which are realleged in all subsequent counts. They allege that the minor child was enrolled in Pediatric Day and Night Care, LLC from about August 23, 2000 until on or about January 3, 2001. Within the first six counts the defendant Morris' conduct is described interchangeably as "sexual assault," "acts of sexual assault," "Battery on the plaintiff's person in all of the offensive sexual conduct," and "sexually assaulting." The acts include disrobing the child, touching the child's penis and anal entry by both finger and penis. That conduct is the factual predicate for each of the counts. Each of those acts were intentional and criminal. There is no evidence to the contrary.
Paragraphs 18 and 19 of each of the Seven Counts allege that the "acts of assault . . . intentionally caused John Doe to endure conscious confinement in restraint of his physical liberty without consent" both at the day care center facility at 79 Linden Street in Waterbury and on at least one occasion at the defendant Morris's home located at 310 Pine Street in Waterbury. Those paragraphs are the specific factual predicate for the Third Count alleging False Imprisonment.
In the underlying action both James P. Morris, III and Pediatric Day and Night Care LLC were defaulted and the matter proceeded to a hearing in damages calendar before Pittman, J. on July 18, 2003. In the judgment that day, the Court stated "and that the well pleaded allegations of the complaint are taken as proved and the issue is solely one of damages." She then awarded in the First through Fifth Counts $26,910 in economic damages and $250,000 in non-economic damages and on the Sixth and Seventh Count respectively $2000 in compensatory damages and $2000 in punitive damages and attorneys fees for total damages against the defendants of $280,910.
Prior to that judgment the plaintiff in the underlying action moved to intervene in this case which motion was granted on January 5, 2003.
In the declaratory judgment action the parties have filed cross motions for summary judgment. The court will first deal with the plaintiff's claim that based on false material representation in the policy applications, the policy is void and therefore affords no coverage. Thereafter the court will deal with each party's claim that the policy language as a matter of law provides for coverage or expressly excludes coverage.
The claims of misrepresentation implicate two applications prepared by James P. Morris III, the first dated November 20, 1998 attached as Exhibit C to the plaintiff's motion for summary judgment and the second application dated February 4, 2000 attached as Exhibit B to that same motion. In the November 1998 application the court is directed to questions 8 and 12. The court will deal with question 12 first. That question asks "Has there ever been any alleged or actual incidents regarding any abuse or molestation?," to which Morris checked "no." The plaintiff points to a Consent Order entered into between Connecticut's Department of Public Health and James Morris dated September 17, 1997, attached as Exhibit D to the plaintiff's motion for summary judgment in support of its claim.
The court concludes that question 12 refers to abuse and molestation involving sexual conduct and not the type of conduct referred in the Consent Order and therefore the answer was not clearly false.
Question 8 in the same application asks "Has applicant ever been cited by authorities for day care violations with or without suspension or revocation of certificate or license?" Morris answered "No" to that question which was clearly false in light of the Consent Order of September 17, 1997 which cited several violations of the Regulations for Family Day Care Homes. Those violations were for a lack of supervision, did not involve any suspension of license and it is not clear from the affidavit of Hugh Seltner, the plaintiff's underwriter, attached as Exhibit A to the Motion for Summary Judgment that this alone would have affected a denial of the application.
As far as the application of February 4, 2000, the court is directed to two questions which have been highlighted 1) Has there ever been a suspension or revocation of certificate or license and 2) any alleged or actual incidents regarding child molestation or abuse. Morris in each case answered "No." In Seltner's affidavit he claims that based on the Consent Order of September 17, 1997, the answers should have been "Yes." This is simply not the case. The consent order has nothing to do with child molestation nor was any suspension or revocation of license involved. There are clearly disputed questions of fact left unresolved and the Motion for Summary Judgment is denied on that claim of misrepresentation.
The first Motion for Summary Judgment was filed by the intervenor on March 23, 2004, wherein she claimed there are no genuine issues of material fact and she is entitled to a judgment as a matter of law to the effect that Mount Vernon must provide coverage to their named insureds, Pediatric Day and Night Care LLC and James P. Morris III regarding the sexual molestation of the minor child by James P. Morris, III. In its several briefs the intervenor claims that the Seventh Count of its complaint in the underlying action alleges the defendant Pediatric Day and Night Care, LLC was liable for negligent supervision of the child, John Doe and for negligent supervision of James P. Morris, III. This court reads that count as only claiming negligent supervision of James P. Morris, III. That fact is not a significant factor in deciding the issues of Summary Judgment.
In the intervenor's brief submitted in support of its Motion for Summary Judgment under the section entitled "Argument" contained on pages 7 through its conclusion on page 17, not a single case or citation is provided in support of its position. It merely quotes language from the policy that it claims as a matter of law requires Mount Vernon to pay the judgment ordered by Judge Pittman in the underlying action.
On April 12, 2004, Mount Vernon filed its Memorandum in Opposition to the Intervenor's Motion for Summary Judgment which the court will refer to shortly. On April 16, 2004 Mount Vernon filed its own Motion for Summary Judgment accompanied by its memorandum of the same date basically making the same arguments made in its brief in opposition to the intervenor's motion.
On April 29, 2004, the intervener filed its objection to Mount Vernon's Motion for Summary Judgment on the basis that the policy of insurance specifically provided coverage to the intervenor for acts of child molestation. It relies almost exclusively on the case of Dacruz v. State Farm Fire and Casualty Company, 69 Conn. App. 507 (2002), wherein the Appellate Court in reversing the trial court's granting of Summary Judgment in favor of the insurance carrier held "that the plaintiff having obtained a final judgment against the defendant's insured that involved both findings of both negligent and intentional conduct, the plaintiff could recover from the defendant pursuant to C.G.S. § 38a-321 as a matter of law. Its reliance on that case was misplaced because that case was unanimously overruled by the Connecticut Supreme Court reported at 268 Conn. 675 (2004), holding that the trial court's finding in the underlying action that the conduct of the insured was intentional and negligent had no collateral estoppel effect upon the insurer in the declaratory judgment action. That case is now totally supportive of the plaintiff's position. Here the actions of James P. Morris III were done intentionally and this court so finds. There was no evidence to the contrary. Calling it anything else is a transparent attempt to trigger insurance coverage. How Morris's conduct was described in the underlying complaint is not binding on this court.
Thereafter on May 29, 2004, the intervener filed a reply brief to plaintiff's Motion for Summary Judgment again supported by no authority claiming that a specific endorsement to the policy, identified as L-318PKG (6/92) entitled Child Molestation Exclusion was somehow in conflict with other language in the policy, the net effect of which was to cause an ambiguity in the policy that should deny Summary Judgment. That is simply not the case. Endorsements to policies generally do affect some change in the policy itself and are hardly in conflict with it. The language of the endorsement is clear and unambiguous.
The policy language cited by the intervenor simply does not support its claim for Summary Judgment and its Motion for Summary Judgment is denied.
The plaintiff in its own Motion for Summary Judgment claims that the policy language simply provides no coverage for the conduct alleged in the underlying complaint. The Policy at issue is a Commercial General Liability Policy, bearing Policy Number CL2100314 (a copy of the Policy is marked Exhibit "E" and annexed to the Affidavit of Hugh Seltner) in the Summary Judgment Motion. Mt. Vernon initially issued the Policy on September 1, 1999, for a policy period between March 23, 1999 and March 23, 2000. The Policy was renewed on March 23, 2000, extending the policy period to March 23, 2001. Under the terms and provisions of the Policy, Morris and Pediatric are insured persons under all relevant coverage. The Policy consists of three coverage parts: general liability coverage, professional liability coverage and child molestation coverage. The court concludes that based on each coverage part there is no coverage afforded for the conduct of James P. Morris, III, and Summary Judgment is granted for the plaintiff as to Counts I and II.
The Insuring Agreement to Part A of the general liability coverage provides in relevant part as follows:
a. [W]e will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or" property damage" to which this insurance applies . . . [W]e will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply . . .
b. This insurance applies to "bodily injury" and "property damage" only if: CT Page 10633
(1) The "bodily injury" or "property damage" is caused by an occurrence . . .
Under SECTION V — DEFINITIONS, "bodily injury" and "occurrence" are defined. "`Bodily injury' means bodily injury, sickness, or disease, sustained by a person, including death resulting from any of these at any time." "`Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
The general liability coverage is subject to certain exclusions. Under Exclusions, paragraph 2(a), coverage is excluded in relevant part for `bodily injury' or `property damage' "expected or intended from the standpoint of the insured."
Coverage A to the general liability coverage affords coverage for "bodily injury" caused by an "occurrence." It is well settled that where, as here, the policy defines "occurrence" as an "accident," it necessarily does not include within its meaning intentional torts by an insured. Commercial Contractor's Corp. v. American Insurance Co., 152 Conn. 31, 42, 202 A.2d 498 (1964); Royal Indemnity Company v. Love, 630 N.Y.S.2d 652 (1995). The term "accident" within a policy of insurance means an unexpected or unintended event. Commercial Contractor's Corp., 152 Conn. 21, 42, 202 A.2d 298 (1964); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, 573 A.2d 699 (1990); Northern Insurance Security Insurance Co. v. Perron, 172 Vt. 204, 777 A.2d 151 (2001). Even where the term "accident" remained undefined by a policy, the Court construed the term "accident" as an unintended or unexpected event based upon its plain and ordinary meaning. Commercial Contractor's Corp., 152 Conn. 31 (1964).
Here, it is indisputable that Part A of the general liability coverage only applies to bodily injury caused by an "occurrence" and "occurrence" is defined as an accident. Consequently, this coverage does not apply to intentional acts by the insured such as are alleged here.
It is equally well settled that in cases involving a sexual assault of a minor the Court will presume that the insured intended to cause the minor harm as a matter of law. United Services Automobile Association v. Marburg, 46 Conn. App. 99, 698 A.2d 914 (1997). This presumption acknowledges that the sexual molestation of a minor by an adult is so heinous that harm is a natural and foreseeable consequence.
Under Connecticut law, an insured can rebut this presumption through the production of evidence that he did not intend to cause the harm. Typically, to rebut the presumption the insured must produce medical evidence that he suffered from a mental disease or illness, which prevented him from forming the requisite state of mind to commit an intentional act. Absent such evidence, the presumption remains intact.
Here, there is no evidence to rebut the presumption that Morris intended to harm John Doe by sexually assaulting him. The Intervenor has presented no evidence that Morris was suffering from a mental disease or illness at the time he allegedly molested John Doe.
Counts I through IV and Count VI of the underlying lawsuit allege injuries arising from Morris' sexual assaulting John Doe. It can be presumed, as a matter of law that Morris intended to harm John Doe, and there is no evidence to rebut this presumption. United Services Automobile Association v. Marburg, 46 Conn. App. 99, 698 A.2d 914 (1997). Hence, Coverage A to the general liability policy does not afford coverage, because these claims do not allege any bodily injury caused by an "occurrence."
Count V and VII of the underlying lawsuit frame Morris' sexual assault upon John Doe in terms of negligence. While a negligence claim against an insured can, under certain circumstances, constitute a covered "occurrence" such is not the case in the Underlying Action. In the Underlying Action, framing the claim as one for negligence is a clear attempt to avoid the terms of the policy and to try to invoke coverage. The conduct was not negligent, it was intentional.
Under circumstances where a sexual assault is alleged in a Complaint in terms of negligence, the Court has dismissed it as a masquerade of the true claim, recognizing that the gravamen of the action was for sexual assault. Middlesex Mutual Assurance Co. v. Rand, 1996 Ct. Sup. 2965, 16 Conn. L. Rptr. 414 (1996). More specifically, the Rand Court recognized that in the context of a claim involving a sexual assault upon a minor by an adult insured it is of no consequence that the allegations against the adult insured in the Complaint are described in terms of negligence for purposes of the Court holding that the sexual assault was not an "accident" under the terms of the policy. See also Middlesex Mutual Assurance Co. v. Favreau, Docket No. 02396760S, Judicial District of Fairfield (Sept. 17, 2003, Dewey, J.) Allstate Insurance Company v. Slimskey, Docket No. 960476326S (March 9, 1999, Graham, J.) ( 24 Conn. L. Rptr. 251); Gibbs v. CNA Insurance Companies, 263 App.Div.2d 826, 693 N.Y.S.2d 720 (1999) (gravamen of complaint, regardless of negligence claim, is for an intentional act of sexual assault for purposes of determining coverage); Lindenbaugh v. Berdish, 144 Mich. App. 750, 376 N.W.2d 400, 406 (1985) (count for negligence in context of sexual assault on minor by insured is a transparent attempt to trigger coverage); Allstate Ins. Co. v. Troelstrup, 789 P.2d 415, 418 n. 7 (Colo. 1990) (inclusion of negligent count irrelevant to determination that insured intended injury). See also DaCruz v. State Farm, supra.
The Insuring Agreement to Part B of the general liability coverage states in relevant part as follows:
We will pay those sums that the insured becomes legally obligated to pay as damages because of `personal injury' . . . to which this insurance applies. We will have a right and duty to defend the insured against any `suit' seeking those damages. However, we will have no duty to defend the insured against any `suit' seeking damages for `personal injury' . . . to which this insurance does not apply . . .
It further provides in relevant part that "[t]his insurance applies to . . . `[p]ersonal injury' caused by an offense arising out of your business . . ." "`Personal injury' means in relevant part injury other than `bodily injury' arising out of one or more of the following offenses: . . . [f]alse arrest, detention or imprisonment . . ."
Under Section I of the professional liability coverage, it provides, in relevant part, as follows:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of liability arising out of any negligent act, error or omission in rendering or failure to render professional services of the type described in the description of hazard shown above (Day Care Center), whether committed by the insured or any person employed by the insured or by others for whom the insured is legally responsible.
Under Section I, it further provides in relevant part that the coverage part does not apply:
(a) to any dishonest, fraudulent, criminal or malicious acts or omissions of the insured; any partner or employee; . . .
(c) to action for assault, battery or . . .
(n) to any actual or alleged sexual misconduct of the insured or the insured's employees.
A "personal injury" for which coverage is sought under Coverage B of the Policy must be caused by one of the enumerated offenses. See French Cleaners, Inc. v. Aetna Casualty and Surety Co., 1995 WL 91423, Docket No. 92 051 82 85, Judicial District of Hartford, Sheldon, J. (1995); see also Edelman v. Pacific Employers Insurance Company, 1997 WL 781814, 21 Conn. L. Rptr. 107 (1997); Titan Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265 (1st Cir. 1990). Moreover, to trigger coverage an enumerated offense causing the "personal injury" must arise out of the insured's business. French, 1995 WL 91423. Connecticut courts have uniformly held that absent an employee acting in furtherance of his employer's business, the employee's alleged offensive conduct does not arise out of the business, even if committed during the course of the employment. Id. (insured's drunken assault of police officer not in furtherance of insured's operation of his Inn); Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990) (employee sexual assault while on duty at his place of employment is not in furtherance of his employer's business). Here, more specifically set forth below, the underlying lawsuit does not allege that John Doe sustained a "personal injury" to which the insurance applies. Clearly, as a day care provider, Morris and Pediatric were in the business of providing care and supervision to and for children. Sexually molesting a child was not in furtherance of Pediatrics' business as a day care provider, even if such acts occurred while Morris was supervising John Doe and/or such conduct occurred at the day care facility or outside of it.
It is indisputable that with the exception of Count III, the complaint in the underlying does not allege that John Doe's injuries were caused by . . . "[f]alse arrest, detention or imprisonment" or any other offense enumerated under the Policy. Hence, Coverage B does not afford coverage for these claims.
Though Count III contains the heading of false imprisonment and alleges that John Doe sustained injuries consisting of emotional upset, anxiety and mental anguish as a consequence of his intentional confinement by Morris, as with the claims for negligence, this is simply a transparent attempt to trigger coverage. Any sexual assault of a minor would necessarily consist of, or involve, some sort of intentional confinement. This should not, however, entitle every sexual assault of a minor to qualify as a false imprisonment for purposes of triggering insurance coverage. Mt. Vernon notes initially that "as the arbiters of the law, [it is the Court's] privilege to determine the nature of the claim alleged in the complaint, based upon the facts alleged and not on the conclusions which the pleader draws therefrom." County of Columbia v. Continental Ins. Co., 189 App.Div.2d 391, 394, 595 N.Y.S.2d 988 (1993). Moreover, to allow coverage under such circumstances would allow alleged sexual offenders like Morris insurance protection for sexually molesting children, and thus in effect permit him to transfer the responsibility for his deeds onto the shoulders of the innocent insuring public. See Allstate v. Mugavero, 79 N.Y.2d 153, 161, 581 N.Y.S.2d 142 (1992). For these reasons, Coverage B does not apply.
Notwithstanding the foregoing, it is indisputable that none of the Counts in the Complaint in the underlying lawsuit allege an offense arising out of the business of Pediatric. The underlying action is for injuries arising from a sexual assault. No one can or should argue that Morris' offensive conduct was in furtherance of the day care business. In fact, there is probably no act or conduct, which would hinder or harm Pediatrics' business more than sexual molestation of one of its charges. Hence, Coverage B does not afford coverage for these claims.
Exclusion (a) provides, in relevant part, that the policy does not apply to . . . "any dishonest criminal or malicious acts or omissions of the insured, any partner or employee." All the allegations against Morris in the underlying lawsuit allege criminal or malicious acts by Morris against John Doe, and, consequently, all such claims are precluded from coverage, pursuant to Exclusion (a), as a matter of law.
Exclusion (c) provides, in relevant part, that the policy does not provide coverage "to actions for . . . assault or battery . . ." Again, as discussed supra, there can be no doubt that the allegations contained in the underlying lawsuit fall within the unambiguous terms of this exclusion and that coverage is, therefore, precluded as a matter of law.
Exclusion (n) precludes coverage "to any actual or alleged sexual misconduct of the insured or the insured's employees." This language specifically and unambiguously precludes coverage, as a matter of law, for claims in the underlying lawsuit.
The claims against Morris and Pediatric are precluded from child molestation liability coverage by Exclusion (a). In relevant part, Exclusion (a) of this portion of the policy provides that this insurance does not apply to "any actual or alleged child molestation by the named insured or PERSONS INSURED . . ." This portion of the policy also specifically defines "molestation" as "sexual or physical injury or abuse, including assault and battery, negligent or deliberate touching."
The purpose of this coverage is to protect the insured against liability arising out of sexual abuse of third parties by the insureds' employees. In this case, the alleged sexual abuse occurred at the hands of the PERSON INSURED, Morris. Consequently, child molestation liability coverage is precluded.
Under Section I of the child molestation liability coverage, it provides in relevant part as follows:
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to any child arising out of any incident or series of incidents of molestation perpetrated by any employee or employees of the insured and the Company shall have the right and duty to defend any suit against the Insured seeking such damage, even if any of the allegations of the suit are groundless, false or fraudulent . . .
This coverage is subject to an exclusion, which states in relevant part that it does not apply:
(a) to any actual or alleged child molestation by the named insured or PERSONS INSURED, or by the spouse of any named insured or PERSONS INSURED; . . .
(f) to any claim for punitive or exemplary damages.
Under section III(c) to the child molestation liability coverage, PERSONS INSURED includes, "[if] the named insured designated in the DECLARATIONS is other than an individual, partnership or joint venture, the organization so designated and any executive officer, director, or stockholder while acting within the scope of his duties as such." That would specifically apply to James P. Morris, III as he signed the insurance application of Pediatric as its Executive Director.
Endorsement L-202 (11/92) entitled, ASSAULT AND BATTERY ENDORSEMENT, excludes coverage under the Policy as follows:
. . . [N]o coverage shall apply . . . for any claim, demand or "suit" based on Assault and Battery, or out of any act or omission in connection with the prevention and suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person. CT Page 10639
It is further agreed that claims, accusations or charges of negligent hiring, placement, training or supervision arising from actual or alleged assault or battery are not covered and no duty to defend any insured from such claims, accusations and charges is provided.
Endorsement L-202 (11/92) to the policy provides that . . . "[it] is agreed that no coverage shall apply under this policy for any claim, demand or "suit" based on Assault and Battery . . ." As more fully set forth below, this endorsement excludes John Doe's claims against Morris and Pediatric, as they are based on assault and battery.
The Court has previously reviewed exclusionary language similar to Endorsement L-202 (11/92) and found that it is unambiguous. Kelly v. Figueiredo, 233 Conn. 31, 610 A.2d 1296 (1992).
The Court, also, has broadly defined the term "assault and battery" in context of insurance contracts, holding that in the civil context in which the insurance contract was made, the common meaning of "assault" and "battery" subsumes all forms of "tortious menacing and unwanted touching." United National Insurance Company v. Waterfront New York Realty Corporation, 994 F.2d 105, 108 (1993). Hence a sexual assault constitutes an assault and battery.
The underlying lawsuit alleges theories of liability apart from assault and battery. However, the theories of liability are irrelevant to the application of the assault and battery exclusion because "the claims are based on Morris' sexual assault. The relevant factor for determination is whether the claims in the underlying lawsuit are "based on assault and battery," or whether the claims would exist but for the assault and battery. Penn-America Insurance Co. v. LTJ Corporation, 1996 WL 465744 (1996 Conn.Super.) (exclusion barred coverage for negligent claims based upon assault and battery); Terra Nova Ins. Co. v. North Carolina Ted, Inc., 715 F. Sup. 688 (E.D. Pa. 1989) (assault and battery exclusion, applicable where suit alleged insured negligently failed to prevent patron from being shot on premises); Terra Nova Ins. Co. v. Thee Kandy Store, 679 F. Sup. 476 (E.D.Pa. 1988) (assault and battery exclusions applicable where suit alleged insured employer negligently failed to prevent assault and battery on customer by employee); Mt. Vernon Fire Insurance Company v. Creative Housing Limited, 88 N.Y.2d 347, 688, N.E.2d 404 (1996) (possibility that insured could be found liable for negligence does not overcome exclusions for injury based upon assault and battery); Capital v. Indem Corp. v. Callis, 963 S.W.2d 247, 250 (Mo.Ct.App. 1998) (finding the plaintiff's negligence claims premised on the assault and battery and denying coverage); Century Transit Systems, Inc. v. American Surplus Lines Insurance, Co., 49 Cal.Rptr.2d 567 (1996) (assault and battery exclusion applies regardless of theory of recovery asserted against insured and, therefore, bars coverage for allegedly negligently supervising an employee who committed assault and battery).
Here, "but for" Morris' sexual assault and battery upon John Doe, the claims against Morris and Pediatric, including the claims for negligence, false imprisonment and violation of CUTPA, would not exist. The exclusion, therefore, precludes coverage for all the claims against Pediatric and Morris, as a matter of law.
Endorsement L-318PKG (06/92) entitled "Child Molestation Exclusion" excludes Part A and B general liability coverage and professional coverage to Morris and Pediatric. The operative language of Endorsement L-318PKG (06/92) provides that there is no coverage for "any injury" resulting from the molesting or abuse of a minor by "any insured" and "caused by negligent supervision." (Emphasis added). The use of the phrase "any insured" precludes coverage for all insureds under the policy, even a co-insured innocent of any claims of sexual molestation. Carbone, 937 F. Sup. 413; American Family Mut. Ins., 65 P.3d 449; McCauley Enterprises, 716 F. Sup. 718, 721; See Sacharo, 2 Conn. App. 439.
Consequently, to the extent all the claims in the underlying lawsuit involve an injury to John Doe arising from the sexual molestation by Morris, coverage is excluded by Endorsement L-318PKG (06/92) to both Morris and Pediatric.
There are obviously many provisions of the subject policies that would deny coverage to the intervenor in this case. The Court is well aware from a reading of the underlying complaint that a child has been badly assaulted and damaged. That, however, cannot be a consideration in the disposition of this summary judgment motion. Any one of the several provisions of the policy already mentioned would supply ample support for the granting of Summary Judgment for the plaintiff. All of them together show a clear pattern of the carrier not to provide coverage for the sexual assault of children. The motion is granted as to Counts I and II to the effect that the insurance coverage does not apply to the claims asserted in the underlying action and there is no duty to defend.
Gormley, JTR