Allstate Insurance v. Hampton

433 N.W.2d 334, 173 Mich. App. 65

• Court: Michigan Court of Appeals
• Decided: August 8, 1988
• Docket: Docket 103661
• Status: Published

Opinion

Per Curiam.

Defendant Wanda McCallister, individually and as next friend of the minor victim, appeals as of right from a September 10, 1987, order granting summary disposition to plaintiff, Allstate Insurance Company. Plaintiff had filed a complaint for a declaratory judgment to establish that it did not have any duty to provide coverage under a homeowner’s policy to defendant James Hampton for injuries allegedly sustained by his adopted twelve-year-old daughter, the natural daughter of defendant’s wife, when, according to her complaint in the underlying cause of action, defendant engaged in sexual relations with her.

The Allstate homeowner’s policy contains the following exclusion:

1. We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person._

Defendant’s daughter’s complaint alleged:

8. That defendant, James O. Hampton, during the period of February 1982 had sexual relations, including but not limited to, vaginal intercourse, with the aforesaid minor child.

The alleged conduct certainly falls within the intentional, if not the criminal-act, 1 exclusion of the insurance policy.

Defendant McCallister argues that without James Hampton’s testimony it cannot be inferred that he intended to injure his daughter. In Linebaugh v Berdish, 2 the Court held that the intent to injure can be inferred as a matter of law from the alleged sexual penetration of a child. Here, the insurance policy excludes from coverage not only intentional injuries but also injuries reasonably expected to result from intentional conduct. The victim’s complaint alleges the types of injuries that reasonably can be expected when a father allegedly engages in nonconsensual sexual conduct with his minor child, regardless of whether sexual penetration occurred.

Finally, McCallister’s argument that the possible voluntary intoxication of defendant James Hampton would vitiate. intent also lacks merit. Where an insured voluntarily ingests alcohol, he may not, as a defense to an exclusionary clause in an insurance policy such as the one at bar, assert that he lacked the capacity to form the intent to act or harm. 3

Affirmed.

1 See MCL 750.520a et seq.; MSA 28.788(1) et seq.

2 144 Mich App 750; 376 NW2d 400 (1985).

3 See Allstate Ins Co v Sherrill, 566 F Supp 1286 (ED Mich, 1983).