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12/30/94 STATE FARM FIRE & CASUALTY COMPANY v.

December 30, 1994

STATE FARM FIRE & CASUALTY COMPANY, PLAINTIFF-APPELLANT,
v.
BRIAN WATTERS, DEFENDANT, AND L.S. AND R.S., INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF A.S., T.S., & L.S., JR., MINORS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 91-MR-42. Honorable James M. Radcliffe, Judge, presiding.

As Corrected January 24, 1995.

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

The opinion of the court was delivered by: Lewis

JUSTICE LEWIS delivered the opinion of the court:

Plaintiff, State Farm Fire & Casualty Company (State Farm), filed a complaint for declaratory judgment in the circuit court of St. Clair County, for a determination of whether there is coverage under a homeowner's policy issued by State Farm to Doris Watters (Doris), the mother of Brian Watters (Brian), for Brian's sexual misconduct against L.S.'s and R.S.'s three minor children. Both parents of the minor children and State Farm filed cross-motions for summary judgment, which the court denied. Following a hearing on the complaint for declaratory judgment, the court entered an order on December 22, 1992, holding that there was coverage under the homeowner's policy and that State Farm was to pay $100,000 pursuant to the settlement agreement in the underlying civil lawsuit which had prompted State Farm's filing of its complaint for declaratory judgment. State Farm appeals. We reverse for the reasons set forth below.

The facts pertinent to this appeal are as follows: In August 1988, and continuing for a period of time thereafter, Brian sexually molested the three minor children, who were eight, seven, and four years of age respectively at the time of the offenses. Brian also took nude and semi-nude photographs of himself and the children in sexually explicit positions. Brian was arrested for these offenses on October 1, 1988, when he came to pick up the developed photographs at a pharmacy. Brian was subsequently found guilty but mentally ill of aggravated criminal sexual assault. Brian's conviction was affirmed by this court on appeal. People v. Watters (1992), 231 Ill. App. 3d 370, 595 N.E.2d 1369, 172 Ill. Dec. 699.

On June 29, 1990, the parents, on behalf of the minor children and individually, filed a civil lawsuit against Brian and his mother, claiming that the children were injured physically and mentally by Brian's actions and that Doris was negligent in allowing the sexual molestations to occur in her home. In a subsequent amended complaint, the parents also sought damages for the negligent infliction of emotional distress upon the children, which resulted from Brian's sexual molestation.

Brian tendered his defense to State Farm for the civil lawsuit filed by the parents, which prompted State Farm to file its complaint for declaratory judgment. In its complaint, State Farm asked the court to find that it had no duty to defend or indemnify defendant under the homeowner's policy issued to Doris. State Farm claimed in its complaint that there was no coverage under the policy either because of the language of the policy itself or because of an exclusionary clause in the policy. State Farm claimed specifically that there was no coverage because (1) Brian's actions did not constitute an "occurrence" as that term is defined in the policy, i.e., his intentional acts were not an "accident;" (2) Brian intended orexpected to cause the children's injuries, thereby falling under the exclusion clause of the policy; (3) the term "bodily injury" used in the policy does not encompass emotional harm; and (4) Brian's sexual misconduct was willful and malicious.

At the hearing on the complaint for declaratory judgment, State Farm presented the statements made to the police by Brian, Timothy, and Larry, Jr., and several evidence depositions. From these documents, it was revealed that Brian admitted to the police that he sexually molested and took pornographic photographs of the children, who were neighbors of Brian and his mother, for at least a month to a month and a half prior to October 1, 1988. At that time, Brian was 28 years of age, but he lived with his mother. Statements taken by the police from Timothy and Larry, Jr., corroborated Brian's sexual misconduct, indicating that Brian would give them sodas, apples, and other things when they participated in the sexual activities.

After Brian was arrested for the criminal charges filed against him, the Belleville Police Department called Steven Blair, an investigator for the Illinois Department of Children and Family Services, to investigate the allegations. Blair made arrangements for the children to be examined at Cardinal Glennon Hospital in St. Louis, Missouri. Tish LaRock Mullen, a registered pediatric nurse who worked in the sexual abuse management clinic at Cardinal Glennon Hospital, told Blair that the two boys disclosed to her that Brian had committed oral penetration and sodomy on them, and that they had witnessed Brian having intercourse with Amy. Blair also interviewed Dr. James Montelone, the physician at Cardinal Glennon who examined the children on October 5, 1988. Dr. Montelone told Blair that Larry and Timothy had "subtle findings" of anal penetration, but that Amy had "definite physical evidence of chronic sexual abuse."

Dr. Michael Armour, a clinical psychologist, testified in his evidence deposition that he had reviewed Brian's fitness to stand trial at the request of the State in the criminal prosecution. In conducting his evaluation of Brian, Dr. Armour reviewed other doctors' reports; Brian's school records; and the police reports done in the criminal case. Dr. Armour also interviewed Brian on May 7, 1990, for about two hours. In his interview with Brian, Brian talked about taking pictures of the children, of having sex with them, and of watching sexual videotapes with the children. Dr. Armour made a report to the court on May 30, 1990. Dr. Armour determined, as a result of his evaluation of Brian in 1990, that Brian's history and psychological testing established that Brian functions in the borderline to mildmental retardation range of intelligence, and that Brian's full scale intelligence quotient (IQ) was 67. Dr. Armour determined that Brian was sane at the time he committed the sexual assaults on the children; that Brian appreciated the wrongfulness of his sexual misconduct; and that Brian was in touch with reality.

Dr. Armour further testified that, after reviewing Brian's case for the civil litigation, he was of the opinion that Brian intended to have sexual contact with the children, and the fact that Brian admitted that he had sexual contact with the children on more than one occasion indicated that Brian's actions were deliberate and possibly planned. Dr. Armour also stated that Brian concealed his activities with the children by doing them when his mother was not around. Brian told Dr. Armour that he would have stopped his sexual misconduct with the children if his mother were to come home, because he did not want to get into trouble. Brian also told Dr. Armour that he would have stopped his sexual activities with the children if a policeman would have come to the door of his home. That Brian took pornographic pictures of himself and the children indicated to Dr. Armour a "higher level of sophistication." Dr. Armour believed Brian's mental age to be that of a 16-year-old.

Dr. Armour admitted on cross-examination that he had testified at Brian's sentencing hearing for his criminal conviction that he did not believe prison was an appropriate sentence for Brian. He also admitted that Brian told him in his interview in May 1990 that he did not know it was wrong to engage in "that type of behavior" with the children. Dr. Armour further admitted that Brian did not want to hurt the children because Brian considered the children his friends.

Dr. Daniel Cuneo, a clinical psychologist, testified on behalf of the children that he had treated Brian in a sex offender treatment group for the last three years. He also had evaluated, at the request of the court, Brian's fitness to stand trial in the criminal case. Dr. Cuneo stated that Brian had been diagnosed as mildly mentally retarded from the time he was in kindergarten, that he had attended special education classes throughout his entire education, but that Brian had completed high school. Dr. Cuneo had an IQ test performed on Brian on July 31, 1989, which ...


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