Concord General Mutual Insurance Co. v. Madore, No. 507-11-03 Wmcv (Carroll, J., June 17,
2004)


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]


                                    STATE OF VERMONT
                                   WINDHAM COUNTY, SS.

CONCORD GENERAL MUTUAL
INSURANCE COMPANY,
         Plaintiff,

v.                                                    WINDHAM SUPERIOR COURT
                                                      DOCKET NO. 507-11-03 Wmcv

LEO MADORE, LINDA MADORE, &
T.M. (a minor) and TRACY DION &
T.S. (a minor),
              Defendants.


 ORDERS ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND
           DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

            In this declaratory judgment action, Plaintiff insurer seeks a declaration that it has no

potential liability, and thus no duty to defend, with respect to tort claims brought by Defendants

Dion and T.S. against Defendants Madore and T.M. for damages resulting from the sexual

molestation of T.S. by T.M. As the homeowners’ policy in question clearly excludes coverage

for personal injury “arising out of . . . sexual molestation of any person,” the Court GRANTS

Plaintiff insurer’s Motion for Judgment on the Pleadings. It follows that the Motion for

Summary Judgment filed by Defendants Dion and T.S. must be DENIED.

I. Plaintiff’s Motion for Judgment on the Pleadings
       A motion for judgment on the pleadings should be granted if, viewing the pleadings

favorably to the non-movant, the movant is entitled to judgment based on the pleadings as a

matter of law. See Fercenia v. Guiduli, 2003 VT 50, Para. 6, 830 A.2d 55. For purposes of the

motion, the Court considers as true all allegations in the pleadings of the non-moving party and

all reasonable inferences that can be drawn from them; contrary assertions by the moving party

are deemed false. Id.

       Here, the pivotal issue is whether there is any possibility that Plaintiff insurer might be

obligated to indemnify Defendants Madore and T.M. on any of the claims asserted in the

underlying suit. See City of Burlington v. National Union Fire Ins. Co., 163 Vt. 124, 127 (1994).

If so, the insurer has a duty to defend. Id. This is determined by comparing the allegations of

the complaint in the underlying action to the terms of coverage in the policy. Id.

       In the underlying complaint,1 Defendants Tracy Dion and T.S. assert ten counts or causes

of action against Defendants Madore and T.M.: intentional tort battery, intentional tort assault,

intentional tort of false imprisonment, intentional infliction of emotional distress, negligent

infliction of emotional distress, negligence, negligent supervision, fostering and promoting an

atmosphere in which child sexual abuse could and did take place, outrageous conduct, and loss

of consortium. Each count includes and is based on the allegation that T.M. sexually molested

T.S. from the summer of 1998 through the fall of 2001. As amended, the complaint in the

underlying suit additionally includes in each count the allegation that T.M.’s acts also constituted

lewd and lascivious behavior.

       Defendants Madore had a homeowners’ insurance policy with Plaintiff insurer from


       1
           Both the complaint in the underlying case and the policy have been incorporated into
September 16, 1997 through September 16, 2002. This policy explicitly excluded from coverage

personal liability for bodily injury “arising out of . . . sexual molestation of any person.” Section

II(1)(k). Additionally, in a separate sub-section, the policy excluded from coverage personal

liability for bodily injury “which is expected or intended by one or more ‘insureds.’” Section

II(1)(a).

        The exclusion for bodily injury arising out of sexual molestation is clear, unambiguous

and applicable here. Although ambiguities in a policy will be construed against the insurer,

“policies which specifically and unambiguously exclude coverage are effective to preclude the

insurer’s liability.” American Fidelity Co. v. Elkins, 125 Vt. 313, 315 (1965).

        Defendants Dion and T.S. cite Northern Security Ins. v. Perron, 172 Vt. 204 (2001) for


the pleadings here.




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the proposition that a sexual molestation exclusion cannot provide the basis for a denial of

possible liability where the alleged molester is a minor. However, this argument reads far too

much into Perron, which involved a sexual molestation by a minor but did not involve the

applicability of a sexual molestation exclusion. Instead, the Court considered the applicability of

an intentional injury exclusion to a sexual molestation by a minor; and in that context, the Court

held that where the alleged molester is a young minor, intent to cause injury could not be inferred

(as it can be when the alleged molester is an adult) and must be determined by the facts in a

particular case. Thus, where the insurer is relying on an intentional injury exclusion, whether the

child’s acts of sexual molestation were intended to cause injury will generally be a question of

fact precluding an early determination that the insurer has no possible liability, and thus no duty

to defend. 172 Vt. at 216-18.




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       Despite the fact that Perron involved an intentional injury exclusion rather than a sexual

molestation exclusion, Defendants suggest the Perron analysis controls applicability of the

exclusion at issue here, either because the sexual molestation exclusion is merely a sub-set of the

intentional injury exclusion, or because some showing of intent would be necessary to convict

T.M. of sexual molestation. Contrary to Defendants’ suggestion, however, the sexual

molestation exclusion is not a sub-set of the intentional injury exclusion, but is a separate and

independent exclusion. Moreover, the focus here is not on the technical legal requirements for

conviction of a crime, but on the alleged acts which gave rise to the alleged injuries. It may be

that a defendant cannot be convicted of sexual molestation because he or she was unable to form

the necessary intent to coincide with the acts of sexual molestation; but the fact that the

defendant cannot be convicted does not mean that the acts of sexual molestation (and the injuries




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that arose from those acts) did not occur. Undefined terms in an insurance contract are to be

taken in their plain, ordinary, and popular sense. Elkins, 125 Vt. at 315. The Court has no doubt

that any reasonable reader of this exclusion would understand it to cover the injuries and acts

alleged here.2

       Thus, applicability of the sexual molestation exclusion does not require an intent to

injure, and the Perron analysis is not controlling here. Indeed, if Defendants’ suggestion were

accepted, the sexual molestation exclusion would be totally redundant, since injuries from all

acts of sexual molestation would already be excluded as intentional injuries.



       2
          For this same reason, Defendants’ addition of the phrase “lewd and lascivious conduct”
cannot take their claims outside the scope of the exclusion. The alleged acts are the alleged acts,
regardless of what legal term Defendants use to describe them; and whichever term is used, they
fall within the plain meaning of sexual molestation.




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         Accordingly, the Court holds that the sexual molestation exclusion applies, and that

Plaintiff is entitled to judgment as a matter of law.

II. Defendants’ Motion for Summary Judgment

         Again relying on their overly broad reading of Perron and their erroneous importation of

an intent requirement into the sexual molestation exclusion, Defendants Dion and T.S. argue that

since T.M. was too young to intend injury as a matter of law, they should be granted summary

judgment on the issue of the inapplicability of sexual molestation exclusion. The Court finds the

proposition that T.M. was too young to intend injury as a matter of law questionable. Even if the

Court were to accept that proposition, however, Defendants’ argument would have to fail since

the Court has held that an intent to injure is not necessary for the sexual molestation exclusion to

apply.




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                                          ORDERS

         Plaintiff’s Motion for Judgment on the Pleadings is GRANTED.

         Defendants’ Motion for Summary Judgment is DENIED.

Dated:

                                           _____________________________
                                           Karen R. Carroll
                                           Presiding Judge




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