                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-1994

Aetna, Inc. v. Barthelemy
Precedential or Non-Precedential:

Docket 93-7783




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Recommended Citation
"Aetna, Inc. v. Barthelemy" (1994). 1994 Decisions. Paper 74.
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      UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT



                No. 93-7783



    AETNA LIFE AND CASUALTY COMPANY,

                              Appellee,

                     v.

    CAROLYN BARTHELEMY; PETER M. BARTHELEMY;
    MICHAEL BARTHELEMY; VICKI MCSPARRAN,

         Vicki McSparran,

                              Appellant.



Appeal from the United States District Court
   for the Middle District of Pennsylvania
           (D.C. No. 92-cv-00945)

 Submitted under Third Circuit LAR 34.1(a)
                June 2, 1994

  Before:   SCIRICA, NYGAARD and ALDISERT,
               Circuit Judges.

            (Filed July 6, 1994)




                      Ralph B.Pinskey
                      PINSKEY & FOSTER
                      121 South Street
                      Harrisburg, PA 17101

                              ATTORNEY FOR APPELLANT

                      John L. McIntyre
                      PFAFF, McINTYRE, DUGAS
                      & HARTYE


                     1
                                 P.O. Box 533
                                 Hollidaysburg, PA   16648

                                         ATTORNEY FOR APPELLEE


                       OPINION OF THE COURT



ALDISERT, Circuit Judge.


           In this diversity case, we must predict whether the

Pennsylvania courts would obligate an insurer to defend and

indemnify an insured under a homeowner's policy in a state court

action in which a female student at Penn State University alleged

that she was harmed by the son of the insured as a result of his

having sexual relations with her while both were intoxicated. The

district court accepted the theory of Aetna Life and Casualty

Company, Appellee, that Pennsylvania courts would adopt the

inferred intent rule discussed in Wiley v. State Farm Fire & Cas.

Co., 995 F.2d 457 (3d Cir. 1993), and entered a declaratory

judgment that Aetna had no duty to defend or indemnify the

insured.   Vicki McSparran, the plaintiff in the state court
action, has appealed the district court's declaratory judgment

and argues that Pennsylvania courts would apply the general rule

of subjective intent under the circumstances.

           The district court had jurisdiction pursuant to 28

U.S.C. § 2201 and § 1332.   We have jurisdiction under 28 U.S.C.

§1291.   The appeal was timely filed under Rule 4(a) of the

Federal Rules of Appellate Procedure.




                                2
          The parties have agreed that the Pennsylvania Supreme

Court has not addressed the major issue raised in this appeal.

Our review of a district court's prediction of how Pennsylvania

would interpret the exclusionary clause of a homeowner's policy

is plenary.     Wiley, 995 F.2d at 459.

          For the following reasons, we will reverse the judgment

of the district court.



                                  I.

             At the time of the incident giving rise to this

litigation, both Ms. McSparran and Michael Barthelemy were

students at Penn State University living in the main campus

dormitory.    At the time of the incident, she was 19 years old and

a virgin and he was 18.    While listening to the campus radio

station, McSparran heard Barthelemy, the disc jockey, announce

that the first person to come to the station and dance with him

would receive a compact disc.     When she arrived at the radio

station, McSparran danced with Barthelemy and received a compact

disc as promised.

             Thereafter, Barthelemy promised McSparran that if she

stayed until the conclusion of the radio show and helped him

carry his tapes back to his dormitory room, he would give her

another compact disc.    She agreed, accompanied him to his room

and received another disc.     While in the room, Barthelemy offered

McSparran two drinks of rum and coke, which she accepted.      He

then promised he would give her another compact disc if she would

drink four shots of rum.     It is undisputed that McSparran was an

                                  3
inexperienced drinker, that she had hesitated to drink shots of

rum, that Barthelemy assured her that rum was like beer and would

not affect her, that she drank four shots of rum in a very short

period of time and that she became ill and very drunk.

           While McSparran was drinking, Barthelemy also consumed

at least two drinks of rum and coke and at least four shots of

rum.   While McSparran was in an inebriated state, Michael had

sexual relations with her.1

          In her state court complaint, McSparran alleged that

Barthelemy was guilty of battery, negligent or reckless conduct

and reckless infliction of emotional distress.   In his defense,

Barthelemy contended that the sexual relations were consensual.

McSparran emphasizes that she did not allege that he used force

or violence, except for the battery count implications. Moreover,

she asserted in each count that he did not "expect or intend that

his conduct would cause the specific injuries that were suffered

by Plaintiff as a result of his conduct."    App. at 22a, 24a, 25a.

          In a separate action brought in federal court, Aetna

Life & Casualty Company sought a declaratory judgment that it was

under no duty to defend or indemnify Barthelemy in the state

court action under the intentional harm exclusion in the

Barthelemy's homeowner's policy.    The defendants below included

McSparran, Michael Barthelemy and his parents, Carolyn and Peter

M. Barthelemy, who were the named insured.   McSparran filed a


1
Although the alleged misconduct occurred in Michael Barthelemy's
dormitory, the parties do not contest the applicability of the
Barthelemy's homeowner's policy.


                                4
motion for summary judgment in the declaratory judgment action,

App. at 35a, and Aetna responded with its own motion for summary

judgment.    App. at 41a.

            Relying on our decision in Wiley, the district court

granted Aetna's motion for summary judgment and denied

McSparran's motion, inferring Barthelemy's intent to harm

McSparran as a matter of law from the act of non-consensual

sexual intercourse.   Aetna Life & Cas. Co. v. Barthelemy, 836 F.

Supp. 231, 237 (M.D. Pa. 1993).       The district court noted that in

Wiley we inferred an intent to harm in a case of child

molestation by an insured adult, and concluded that "[t]he Third

Circuit's reasons for predicting adoption of the inferred intent

rule in cases of child molestation are no less persuasive when

the alleged victim is an adult."       Id.   McSparran's appeal

followed.

            The Barthelemy's homeowner's policy, issued by Aetna,

contains the following exclusion:
                    1.Coverage E - Personal
               Liability and Coverage F - Medical
               Payments to Others do not apply to
               bodily injury or property damage:

                                   a.which is
                      expected or intended by
                      any insured;

App. at 18a.


            We must determine whether the inferred intent rule,

which we have previously held applicable to the "exceptional case

of sexual child abuse by an insured adult," Wiley, 995 F.2d at

461, would apply to the alleged sexual misconduct of Barthelemy.


                                  5
                                     II.

          Pennsylvania case law teaches us how to begin an

analysis of exclusionary clauses of the type contained in the

Barthelemy's homeowner's policy:


          In our state, the exclusionary clause applies
          only when the insured intends to cause a
          harm. Insurance coverage is not excluded
          because the insured's actions are intentional
          unless he also intended the resultant damage.
          The exclusion is inapplicable even if the
          insured should reasonably have foreseen the
          injury which his actions caused.

United Servs. Auto. Ass'n v. Elitzky, 358 Pa. Super. 362,


371 (1986) (citation omitted).   The homeowner's policy in this

case excluded bodily injury or property damage "which is expected

or intended by any insured."

          "An insured intends an injury if he desired to cause

the consequences of his act or if he acted knowing that such

consequences were substantially certain to result."      Id. at 375.

For a resulting injury to be excluded from coverage, the test to

be applied in Pennsylvania under general liability cases is not

whether the insured intended his actions, but whether the insured

specifically intended to cause harm.   Id. at 372.

          As a threshold matter, we will agree with Aetna that

McSparran's state court battery count is excluded from coverage

because, by definition, the tort of battery requires proof of an

intent to cause a harmful or offensive contact.      See Restatement

(Second) of Torts § 13 (1964).


                                 6
          Although Elitzky mandates a "subjective intent"

analysis for determining coverage under an exclusionary clause in

most Pennsylvania insurance cases, a different analysis is

applied in "those exceptional cases involving sexual child

abuse."   Wiley, 995 F.2d at 460.    In "those exceptional cases,"

many jurisdictions have adopted what is called the "inferred

intent" rule:   This rule "allows a court to infer an actor's

intent from the nature and character of his or her acts" and to

"establish conclusively the existence of intent to harm as a

matter of law."   Id.   This presumption is conclusive

"notwithstanding the insured's assertion of an absence of

subjective intent to harm."    Id.   Intent may be inferred only

"'if the degree of certainty that the conduct will cause injury

is sufficiently great to justify inferring intent to injure as a

matter of law. . . . [T]he more likely harm is to result from

certain intentional conduct, the more likely intent to harm may

be inferred as a matter of law.'"     Id. at 462 (quoting K.A.G. v.

Stanford, 434 N.W.2d 790, 792-93 (Wis. 1988)).

          Inferring intent to harm is strong medicine.     We noted

in Wiley that it has "narrow applicability."     Id.   We cautioned

repeatedly that, "in cases that do not involve sexual child

abuse, Pennsylvania has adopted a general liability standard for

determining the existence of this specific intent that looks to

the insured's actual subjective intent."    Id. at 460.   Moreover,

although we have predicted that Pennsylvania courts would infer

intent to harm in cases of child molestation, they have yet to

decide this precise issue.

                                 7
          With these precepts guiding our deliberation, we must

determine whether, under the facts presented, this is a general

liability insurance case in which the court must consider the

insured's subjective intent to harm, or whether it is another

"exceptional" case in which the court may infer the insured's

intent to harm as a matter of law.



                               III.

          The district court extended our teachings in Wiley to

the facts at bar, concluding that an intent to harm McSparran

could be inferred as a matter of law, notwithstanding

Barthelemy's subjective belief that he had consent and

McSparran's repeated assertions that he did not intend the harm

she suffered.   Consequently, the district court held that

Barthelemy's conduct came within the exclusionary clause of the

homeowner's policy.   Barthelemy, 836 F. Supp. at 237.   In so

doing, we believe the court erred.

          In deviating from the general liability rule of

considering subjective intent, the district court stated that

this court's "reasons for predicting adoption of the inferred

intent rule in cases of child molestation are no less persuasive

when the alleged victim is an adult.   Like sexual contact with a

child, sexual assault of an adult is a crime."   Id. at 236.     The

court continued:   "Obtaining coverage for the commission of a

criminal act is not within the contemplation of the average

purchaser of homeowner's insurance."   Id.



                                8
          We believe that in analogizing this case to Wiley, the

district court, to use a popular idiom, pushed the envelope too

far.   We note first that in this case there is no allegation that

a crime was committed.   McSparran alleged battery, negligent or

reckless conduct and reckless infliction of emotional distress,

App. at 22a-25a, but conceded that Barthelemy did not intend the

harm she suffered as a result of this tortious conduct.      App. at

22a, 24a, 25a.   The district court mischaracterized her complaint

when it stated that she "allege[d] in the underlying action that

Michael Barthelemy induced her to drink alcohol and raped her

while she was under the influence."      Id. at 232.   The record

discloses that the basis of McSparran's state court complaint was

that Barthelemy committed a tort, not a crime.

           Moreover, our entire discussion in Wiley was limited to

sexual assault on a child.   The fact that McSparran's assertions

might conceivably give rise to criminal liability is not

dispositive of an insured's intent to harm.      Were it true that

any potential criminal liability would give rise to an inferred

intent to harm and, thereby, exclude coverage under a homeowner's

policy, we would not have emphasized in Wiley that sexual abuse
of a child is a uniquely harmful act calling for the narrowly

applied inferred intent rule.   We simply would have concluded

that, because child molestation is a crime, intent to harm must

be inferred as a matter of law.       Instead, we recognized in Wiley

that subjective intent generally is relevant, even when the

insured has pleaded guilty to a crime.      995 F.2d at 466-67; see
Stidham v. Millvale Sportsmen's Club, 421 Pa. Super. 548, 563


                                  9
(1992) (holding that, because insured's intent to harm remained a

material factual issue, summary judgment was inappropriate,

notwithstanding the fact that insured shot and killed a stranger

in an alcoholic blackout and pleaded guilty to third-degree

murder).

             Finally, the district court itself recognized the

differences between this case and Wiley.     It noted that: (1) the

victim in Wiley was the 13-year-old niece of the insured;

McSparran was a 19-year-old adult peer of the insured; (2) there

was no contention in Wiley that the victim consented; the insured

here alleged that McSparran consented; (3) the insured in Wiley

pleaded guilty to criminal charges; no criminal charges were

filed against the insured here; and (4) here both adult

participants in the sexual conduct were intoxicated.     Id. at 236.



                                 IV.

             Analogies can be considered one of the most important

aspects of legal argument.     Analogy is the method used to

determine whether factual differences contained in the case at

bar and those of the case compared are material or irrelevant.

             One must always appraise an analogical argument very

carefully.    Several criteria may be used:
                      •The acceptability of the analogy will vary
                      proportionately with the number of
                      circumstances that have been analyzed.

                       •The acceptability will depend upon the
                       number of positive resemblances
                       (similarities) and negative resemblances
                       (dissimilarities).



                                  10
                     •The acceptability will be influenced by the
                     relevance of the purported analogies. An
                     argument based on a single relevant analogy
                     connected with a single instance will be more
                     cogent than one which points out a dozen
                     irrelevant considerations.


           Wiley and the cases cited to support its reasoning

stand for the proposition that Pennsylvania courts would depart

from the general liability test of subjective intent to cause

harm in the limited circumstance of sexual assault upon a child.

The reason for the rule of inferred intent is a societal

recognition that, because a child lacks the capacity to give

consent, sexual activity foisted upon that child by an insured

adult raises the irrebuttable inference that the adult intended

to harm that child, regardless of the insured's subjective

intent.   The reason for the rule is inexorably intertwined with

the tender age of the child.   See, e.g., B.B. V. Continental Ins.
Co., 8 F.3d 1288, 1293-94 (8th Cir. 1994) ("Under Missouri law,

the crime of deviate sexual intercourse with a person less than

fourteen years of age requires no proof of intent on the part of

the perpetrator.   Thus, the Missouri legislature and the Missouri

Supreme Court recognize that sexual molestation of a child is a

crime for which the subjective intent of the perpetrator is

irrelevant.") (citations omitted).     Where a child is not a

participant in the act, there is no reason for the rule.     And, in

the felicitous expression of Karl Llewellyn, "Where stops the

reason, there stops the rule."2


2
Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice
217 (1962).


                                  11
          Thus, applying the criteria for a proper analogy to the

teachings of Wiley, the number of positive resemblances are

minimal and the number of dissimilarities extensive -- here, the

putative victim was an adult and not a child, there was no

allegation of a criminal act but rather of a negligent or

reckless act, there was an assertion by the insured of consent

and an assertion by the putative victim that the insured did not

intend the harm she suffered.   Accordingly, our prediction is

that Pennsylvania would apply the rule of general liability in

this case:   For the exclusionary clause to apply, the insurer had

to prove that Barthelemy had the specific subjective intent to

harm McSparran.

          In sum, we hold that the exclusionary clause does not

exclude torts of negligence or recklessness.     "In the event that

the complaint alleges a cause of action which may fall within the

coverage of the policy, the insurer is obligated to defend."

Stidham, 421 Pa. Super. at 564 (citing Hartford Mut. Ins. Co. v.

Moorhead, 396 Pa. Super. 234, 238-39 (1990)).3

                                V.

          Under these circumstances we conclude that Aetna failed

to meet its burden of proving that the exclusionary clause


3
Nor may Aetna find comfort in the Pennsylvania criminal code
under which voluntary intoxication may not be "introduced to
negative the element of intent of the offense." 18 Pa. Cons.
Stat. § 308. In this case, no criminal act was alleged and
intent plays no role in allegations of negligent and reckless
conduct. It would seem that the voluntary intoxication analogy
could be used only by claimants to rebut an insurance carrier's
invocation of the exclusionary clause. See Wiley, 995 F.2d at
466; Stidham, 421 Pa. Super. at 563.


                                12
applied.   We hold that the district court erred in applying the

inferred intent rule and that Aetna failed to prove Barthelemy's

subjective intent to harm McSparran as a matter of law.

           The judgment of the district court in favor of Aetna

will be reversed and the proceedings remanded with a direction

that the district court grant McSparran's motion for summary

judgment to the extent that the negligent and reckless conduct

allegations in her state court complaint are not excluded from

coverage under the homeowner's policy.




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