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Insurance Ruling in Molestation Case Upset : High court: The state justices overturn a decision that a homeowner's policy could be used to collect civil damages from a child abuser.

February 06, 1991|PHILIP HAGER | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The state Supreme Court refused Tuesday to allow victims of child molestation to collect civil damages from homeowner's liability insurance policies held by their abusers.

In a 6-1 ruling, the justices overturned a 1989 state appeal court ruling that an insurer could be held liable for a $500,000 award to a mother and her 5-year old daughter, who had been abused more than 20 times by a male neighbor later convicted of child molestation.

The high court flatly rejected the appellate panel's conclusion that such acts could be covered in a standard policy if it were not proved the policyholder specifically intended to injure the victim. State insurance law, the justices said, bars any coverage for "willful" acts like child molestation.

The contention by psychiatrists and some victims' advocates that some abusers, though misguided, do not intend injury "flies in the face of all reason, common sense and experience," retired Justice David N. Eagleson, sitting by special assignment, wrote for the majority.

Child abuse is "inherently harmful," said Eagleson. "The act is the harm. Child molestation is not the kind of act that results in emotional and psychological harm only occasionally. The contrary view would be absurd."

In dissent, Justice Allen E. Broussard accused the majority of "practicing psychiatry without a license and doing a terrible job of it." When experts agree there is no intent to harm, juries should be given the chance to hold an insurer liable, he said.

Broussard added that usually a wrongdoer's liability insurance is the only way molestation victims can obtain adequate monetary compensation for their injuries and required treatment.

The high court ruling came as victims of child molestation have turned increasingly to the courts, sometimes winning large civil damage awards for the harm they have suffered. Meanwhile, well over 20,000 complaints of child abuse are being filed annually in California.

The case arose from a civil suit brought in San Diego against Robert G. Hahn by a woman and her daughter, identified only as S.K. and M.K., after Hahn pleaded guilty to sexually molesting the girl while acting as her baby-sitter in 1984. The daughter was awarded $400,000 for Hahn's negligence and the mother was awarded $100,000 for emotional distress.

Hahn's homeowner-policy insurer, J.C. Penney Casualty Insurance Co., denied any liability for the award, citing a provision of the policy barring coverage for "expected or intended" acts. The company won a ruling from a trial court that it could not be held liable for child molestation.

But in a decision that jolted the insurance industry, a state Court of Appeal in San Diego held that to avoid liability an insurer had to show that its policyholder not only intended to molest the victim but also meant to cause injury. During the trial, two psychiatrists testified that Hahn had not meant to hurt the girl but, as one put it, "got carried away by his own needs."

David M. Axelrad of Encino, an attorney for one of several insurance groups that joined in the case, welcomed Tuesday's decision. "There should be no insurance coverage for intentional criminal acts such as child molestation," he said.

Attorneys for the victim and her mother and the California Trial Lawyers Assn., which urged the court to hold the insurers liable, could not be immediately reached.

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