K.P. v. M.L., Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-0869

K.P., ET AL.

VERSUS

M.L., JR., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 226,837
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters,
Judges.

AFFIRMED.

Allen A. Krake
Stephanie N. Prestridge
Law Office of Chris J. Roy, Sr.
Post Office Box 1911
Alexandria, LA 71309
(318) 767-1114
COUNSEL FOR PLAINTIFFS/APPELLANTS:
K.P., individually and for her minor son, K.C.

Elizabeth Foote
Susan C. Segura
The Smith Foote Law Firm, LLP
Post Office Box 1632
Alexandria, LA 71309-1632
(318) 445-4480
COUNSEL FOR DEFENDANT/APPELLEE:
Allstate Indemnity Company

Peter J. Valeta
Meckler, Bulger, Tilson, Marick
& Pearson, LLP
123 North Wacker Drive, Suite 1800
Chicago, IL 60606
(312) 474-7900
COUNSEL FOR DEFENDANT/APPELLEE:
Allstate Indemnity Company

PETERS, J.

The issue before us is whether a homeowner’s policy issued by Allstate

Indemnity Company (Allstate) provides liability coverage to the homeowners and

their mentally impaired adult son for liability alleged to result from a criminal sexual

assault committed by the son. In granting summary judgment in favor of Allstate, the

trial court ruled that the policy did not afford liability coverage in these

circumstances. The plaintiffs appeal the trial court’s grant of Allstate’s motion for

summary judgment. For the following reasons, we affirm.

REVIEW OF THE RECORD

K.P.1 and her five-year-old son, K.C., were visiting her brother, J.A., and his

wife, P.A., on January 28, 2006. During that visit P.A.’s son, M.L., Jr. (M.L.), a

mentally infirm adult who was living with the A.s, sexually molested K.C. In May

of that year M.L. was charged with indecent behavior with a juvenile, a violation of

La.R.S. 14:81. M.L. was subsequently found incompetent to proceed to trial; he was

committed pursuant to La.Code Cr.P. art. 648(B)(3).

K.P. brought suit on January 23, 2007, individually and on behalf of K.C.,

against M.L.; the A.s; and the A.s’ insurer, Allstate. K.P. alleged that M.L. is liable

for his negligent and/or intentional acts in molesting K.C. and that the A.s are liable

for their negligence in failing to supervise M.L. On November 7, 2007, Allstate filed

a motion for summary judgment, contending that there is no liability coverage under

its policy for the negligent and intentional acts alleged in the plaintiffs’ suit.

Following a hearing on January 28, 2008, the trial court granted Allstate’s motion for

summary judgment.

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Because of the nature of the assault and the age of the minor plaintiff, the plaintiffs, the
defendants, and their family members will be referred to in this opinion by their initials.

The plaintiffs appeal, with one assignment of error: that “the trial court

improperly granted summary judgment in favor of Allstate Indemnity Company.”

OPINION

A motion for summary judgment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B). “The summary judgment

procedure is designed to secure the just, speedy, and inexpensive determination of

every action . . . . The procedure is favored and shall be construed to accomplish

these ends.” La.Code Civ.P. art. 966(A)(2). This court reviews the trial court’s grant

or denial of a motion for summary judgment under the de novo standard of review,

using the same criteria that govern the trial court’s consideration of whether a

summary judgment is appropriate. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181,

99-2257 (La. 2/29/00), 755 So.2d 226.

K.P. first argues that the sexual assault was a covered occurrence under the

definitions in Allstate’s policy, and therefore there is insurance coverage for M.L.’s

liability and the A.s’ liability. Allstate’s policy provides liability coverage for

“damages which an insured person becomes legally obligated to pay because of

bodily injury or property damage arising from an occurrence to which this policy

applies, and is covered by this part of the policy.” In the policy, occurrence is defined

as “an accident, including continuous exposure to substantially the same general

harmful conditions during the policy period, resulting in bodily injury or property

damage.” The term “accident” is not defined by the policy, and K.P. contends that

M.L.’s sexual molestation of K.C. “was, from the plaintiffs’ viewpoint, an accident”

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and therefore an occurrence under the policy. We do not address this issue of

contract language construction – whether the viewpoint of the victim or the viewpoint

of the insured is used to determine whether an event is an accident – because the

exclusions to the policy’s liability coverage specifically preclude coverage for

intentional or criminal acts by an insured.

The exclusions to the liability portion of the policy, Section II, Coverage X,

include the restriction that:

We do not cover any bodily injury or property damage intended by,
or which may reasonably be expected to result from the intentional or
criminal acts or omissions of, the insured person. This exclusion
applies even if:
a) such insured person lacks the mental capacity to govern his or
her conduct;
b) such bodily injury or property damage is of a different kind or
degree than intended or reasonably expected; or
c) such bodily injury or property damage is sustained by a
different person than intended or reasonably expected.

This exclusion applies regardless of whether or not such insured person
is actually charged with, or convicted of a crime.

Thus, under the language of the policy, the damages caused by M.L.’s sexual

molestation of K.C. are not covered by Allstate’s liability insurance.

K.P. argues that this exclusion does not apply to her suit because she is also

suing for mental injuries, and the exclusion is silent as to mental injuries. But her

argument defeats itself; Allstate’s policy only provides liability coverage for bodily

injury and property damage; to the extent that the plaintiffs seek to recover for

damages other than bodily injury or property damages, their claim does not fall within

the language of the policy’s coverage.

Finally, K.P. argues that public policy demands that coverage be provided in

this claim, that the exclusion should not be applied because M.L. is mentally

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incompetent and does not have the capacity to intend the harm that resulted from his

actions. K.P. asserts that there is no public policy to be upheld in applying this

exclusion, and that applying it is contrary to the recognized public policy in favor of

compensating innocent victims. We recognize that “[a]mbiguous policy provisions

are generally construed against the insurer and in favor of coverage.” Mayo v. State

Farm Mut. Auto. Ins. Co., 03-1801, p. 4 (La. 2/25/04), 869 So.2d 96, 100. But here

there is no ambiguity in the exclusionary clause, and therefore nothing to construe or

interpret. The exclusionary clause prohibits liability coverage in this case.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of the summary

judgment dismissing the plaintiffs’ suit against Allstate Indemnity Company. We

assess all costs of this appeal to K.P., individually and on behalf of her minor son.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

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