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12/29/94 WESTERN STATES INSURANCE COMPANY v.

December 29, 1994

WESTERN STATES INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
WALLACE BOBO, DEFENDANT, AND J.R. AND S.M., AS MOTHER AND NEXT FRIEND OF L.G., A MINOR CHILD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Pulaski County. No. 92-MR-17. Honorable George Oros, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Chapman and Rarick, JJ., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Plaintiff, Western States Insurance Company ("Western"), appeals from an order of the circuit court of Pulaski County denying summary judgment on its complaint for declaratory judgment. Western had sought a declaration that it was not obligated to provide coverage to or furnish a defense for its insured, defendant Wallace Bobo ("Bobo"), in a tort action alleging sexual abuse against Bobo. Western appeals from the trial court's order. We reverse.

Defendants, J.R. and S.M., as mother and next friend of L.G., a minor child, filed a complaint against Bobo in the circuit court of Pulaski County alleging that while J.R. and L.G. were minors Bobo sexually assaulted them by: (1) wrongfully touching their buttocks; (2) wrongfully touching their breasts; (3) wrongfully touching them "in and about" their vaginal areas; and (4) forcibly kissing them. Bobo tendered the defense of the case to Western, which had issued Bobo a homeowner's insurance policy. This policy contains the following intentional-acts 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 the insured, but this exclusion does not apply to any act committed by or at the direction of the insured not intended to cause serious bodily injury or property damage."

On August 11, 1992, Western filed an amended complaint for declaratory judgment seeking a finding that its homeowner's policy with Bobo did not provide coverage for the matters alleged in the suit filed against Bobo by J.R. and L.G. and for a further finding that Western was not obligated to furnish a defense to Bobo. On August 21, 1992, J.R. and L.G. filed their answer. On August 25, 1992, Western filed a motion for summary judgment and a memorandum in support of summary judgment based on the intentional-acts-exclusion provision. On September 24, 1992, J.R. and L.G. filed their response to Western's motion for summary judgment. In their response, J.R. and L.G. contended that a genuine issue of material fact existed as to whether Bobo intended to cause serious bodily injury to J.R. and L.G. On October 7, 1992, Western filed a reply memorandum in support of its motion for summary judgment. On October 14, 1992, J.R. and L.G. filed a response to Western's reply memorandum.

On February 18, 1993, a hearing on Western's motion for summary judgment was held. Following argument, the trial court denied Western's motion. In its order of March 8, 1993, the trial court held that a "genuine issue of material fact exists as to the question of whether [Bobo] intended to cause serious bodily injury when he allegedly [sexually abused J.R. and L.G.]." The trial court also certified this question of law to the appellate court:

"Whether under a homeowner's insurance policy excluding coverage for bodily injury for intentional acts with the language:

'which is expected or intended by the insured, but this exclusion does not apply to any act committed by the *** insured not intended to cause serious bodily injury ***'

an intent to cause serious bodily injury should be inferred to the insured as a matter of law and public policy where it is alleged that the insured committed a battery against a minor by 'sexual abuse,' regardless of the insured's subjective intent."

On March 22, 1993, Western filed an application for leave to appeal to this court. On May 6, 1993, this court denied the application for leave to appeal. On October 6, 1993, the supreme court of Illinois entered a supervisory order remanding this case back to us with directions to vacate our order of May 6, 1993, denying the application for leave to appeal pursuant to Supreme Court Rule 308 and to enter an order allowing the appeal.

On appeal, Western contends that: (1) the trial court improperly found that an issue of material fact existed as to whether insurance coverage existed for alleged sexual abuse of minors under the intentional-acts exclusion of its homeowner's insurance policy; (2) the trial court improperly refused to infer an intention to cause serious bodily injury; and (3) as a matter of public policy individuals must not be able to obtain insurance to cover damages for sexual abuse to minors. Our resolution of the ...


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