January 10, 2013

Insurer Not Obligated to Defend in Tort Case for Sex Abuse, Maryland Court Rules

by Lebowitz & Mzhen

484834_82220165.jpgAn insurance company is not obligated to defend or indemnify its insured in a civil claim for damages arising from acts of sexual abuse of a child, according to a Maryland court’s order. The U.S. District Court for the District of Maryland, ruling in Harrison v. Fireman’s Fund Ins. Co., Civil Action No. ELH-11-1258 (D. Md., Dec. 29, 2011), denied a request for a declaratory judgment that the defendant insurance company had a duty to defend the plaintiff. After the plaintiffs in the civil sex abuse lawsuit intervened in the case, they and the insurance company each filed motions for summary judgment. The court granted the insurance company’s motion and entered a declaratory judgment in its favor. It denied the intervenors’ summary judgment motion.

The chain of events leading to the declaratory judgment action began with a criminal case. William L. Harrison was convicted of sexual abuse of a minor in August 2009, and received a ten-year prison sentence. See Harrison v. Maryland, 17 A.3d 144 (Md. Spec. App. 2011). According to the appellate court that affirmed the conviction in 2011, Harrison approached the father of the victim, identified as S.B., in the summer of 2006. He reportedly asked the father if S.B., who was thirteen years old at the time, would be interested in working with him on landscaping and other jobs. S.B. worked for Harrison part-time until the summer of 2007, when S.B. told his mother that Harrison had “touched him inappropriately.” Id. at 145. Harrison was indicted in January 2008.

S.B.’s parents filed a civil lawsuit against Harrison in February 2010 for damages related to the abuse of S.B., identified in that lawsuit as S. Doe. The Does pleaded five causes of action against Harrison: negligence, assault, battery, intentional infliction of emotional distress, and a claim for medical expenses. Harrison in turn filed suit against his insurer, Fireman’s Fund Insurance Company, seeking a declaratory judgment as to its duty to defend him in the Does’ lawsuit. The Does intervened, and both they and the insurance company moved for summary judgment.

Harrison’s homeowner’s insurance policy contained personal liability coverage, including the defense of civil lawsuits. It excluded, however, liability resulting from criminal or other intentional actions, as well as liability resulting from acts of sexual molestation. The Does argued to the court that the first count of their lawsuit, negligence, allowed for the possibility that Harrison’s conduct could be covered by the policy. The insurance company argued that Harrison’s criminal conviction excluded the suit entirely from coverage. Harrison, who was incarcerated at the time, did not participate in the motions.

The Does also asked the court to dismiss the declaratory judgment suit under Brohawn v. Transamerica Ins. Co., 347 A.2d 842 (Ct. App. Md. 1975), which held that courts should not issue declaratory judgments on the question of insurance coverage in cases where a fact finder must eventually decide whether the insured acted intentionally or negligently. The court concluded that it did not need to consider the exclusion for intentional acts, because the exclusion for sexual molestation clearly applied. It therefore granted the insurance company’s summary judgment and denied the Does’ motion.

The personal injury lawyers at Lebowitz & Mzhen are skilled at pursuing justice for people in Maryland who have been injured due to the illegal or negligent acts of others. Contact us today online or at (800) 654-1949 for a free and confidential consultation.

More Blog Posts:

Penn State Prepares for Sexual Abuse Lawsuits After Sandusky Verdict, Maryland Accident Law Blog, June 28, 2012

Archdiocese of Baltimore Close to Reaching Child Sex Abuse Settlement with Maryland Family, Maryland Accident Law Blog, August 7, 2008

Former Maryland Volunteer Firefighters File Sex Abuse Lawsuit Against Anne Arundel County Government and a Local Fire Company, Maryland Accident Law Blog, January 25, 2008

Photo credit: asterisco on stock.xchng.