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Fifth DCA Holds Liability Policy Excludes Molestation Claim

October 21, 2011

Foremost Ins. Co. v. D.R., _ So. 3d _, 36 Fla. L. Weekly D2336 (Fla. 5th DCA Oct. 21, 2011).


Foremost Insurance Company issued a liability policy that insured D.M. The policy covered accidents and did not cover expected or intended claims. D.M. sexually molested his minor stepson, D.R. on several occasions. D.R. sued D.M. seeking damages for his sexual molestation. Foremost then sought a judicial declaration that the allegations of the D.R. complaint did not impose a duty to defend and, consequently, indemnify D.M. because, as a matter of law, sexual molestation of a minor by an adult was not an accident and such perpetrators expect or intend harm. Foremost proceeded to move for summary judgment on this basis. The trial court denied Foremost’s motion, asserting that (unidentified) issues of fact with respect to Foremost’s defense obligation precluded summary judgment for Foremost. The case proceeded to trial where a judgment was entered against Foremost imposing liability under its policy for a jury award to D.R.


The appellate court reversed. In a very brief opinion, the Fifth District Court of Appeal noted that D.R.’s claims were expressly excluded under the language of the policy where the policy excluded “[claims which are expected or intended by any of you or performed at any of your direction.” The appellate court observed that D.R.’s causes of action, however, labeled, were based upon the factual contention that D.M. had unlawful and inappropriate sexual relations and contact with D.R. The court cited to the Supreme Court of Florida case Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla.1989), in noting that the terms of the policy clearly excluded such claims.

Anthony J. Russo, R. Steven Rawls and Dennis M. Hudson for Foremost Insurance Company.

Note: Opinion is not final, and a motion for rehearing and for certification has been filed.