This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-2003

John Keith Warren,

Appellant,

vs.

American Family Insurance Company,

Respondent.

Filed March 11, 1997

Affirmed

Mulally, Judge

[*]

Ramsey County District Court

File No. C89512719

Patrick T. Tierney, Thomas E. McEllistrem, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for Appellant)

James J. Kremer, Nancy C. Coon, 6131 Blue Circle Drive, Eden Prairie, MN 55344 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Mulally, Judge.

U N P U B L I S H E D O P I N I O N

MULALLY, Judge

Appellant seeks reversal of summary judgment denying insurance coverage under his homeowner's policy. We affirm.

FACTS

Underlying Action: In September 1994, plaintiff in the underlying action (plaintiff) brought suit against appellant John Keith Warren and two others, alleging that all three, without consent, came aboard a houseboat in which she was sleeping and, without consent, had sexual contact with her. Plaintiff, who was 17 years old at the time of the incident, sought damages from appellant for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and aiding and abetting. Plaintiff and appellant reached a Miller-Shugart settlement in August 1995, by which appellant agreed to pay $10,000 of an agreed-upon $300,000 judgment against him in exchange for his release from any further claims under her complaint. In a Miller-Shugart settlement, defendant agrees to judgment against him or her, and plaintiff agrees to recover the judgment (or, as here, the remainder of the judgment) from defendant's insurer. Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 278 n.1 (Minn. 1990).

This Action: At the time of the incident, appellant was covered by a homeowner's policy issued by respondent, American Family Insurance Company. In September 1994, appellant sent a copy of the complaint to respondent, requesting coverage and defense. Respondent declined. Appellant then retained separate counsel to defend the lawsuit. In October 1994, appellant advised respondent that he intended to enter into Miller-Shugart settlement negotiations with plaintiff and that plaintiff admitted there were no nonconsensual sexual acts between them. Respondent again declined coverage and defense.

In February 1995, appellant advised respondent of plaintiff's settlement demand, noting that plaintiff had admitted she had no memory of having had sexual intercourse with appellant and that appellant denied having had sexual intercourse with her.[1] Later that month, plaintiff's attorney advised respondent that DNA testing of semen found on the bed sheets matched appellant's DNA profile. Respondent continued to deny coverage and defense. In March 1995, appellant brought a breach of contract action against respondent. Both parties subsequently moved for summary judgment. The district court granted respondent's summary judgment motion and denied appellant's motion, finding that there was no coverage or duty to defend because the nonconsensual sexual contact was not an "occurrence" under the policy. The court also found that coverage was excluded under the policy's intentional act and sexual act exclusions. Appellant appeals on the issue of respondent's duty to defend in the underlying action.

D E C I S I O N

On appeals from summary judgment, this court must consider two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "The interpretation and construction of an insurance contract is a question of law, subject to de novo review." Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn. 1994).

As to an insurer's duty to defend,

[i]t is well established * * * that if any claim is made against an insured which could result in liability for covered damages, the insurer has a duty to defend.

North Star Mut. Ins. Co. v. R.W., 431 N.W.2d 138, 140 (Minn. App. 1988), review denied (Minn. Jan. 13, 1989). It is the insurer's burden to show "that all parts of the cause of action fall clearly outside the scope of coverage." Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165-66 (Minn. 1986).

Although plaintiff brought four claims against appellant, only the negligent infliction of emotional distress claim is at issue. Respondent asserts that the claim is not covered for any of three reasons: (1) plaintiff's injuries were not caused by an "occurrence," as required by the policy; (2) the policy's intentional act exclusion barred the claim; and (3) the policy's sexual abuse exclusion barred the claim.

I. Occurrence

The homeowner's policy states:

COVERAGE D - PERSONAL LIABILITY COVERAGE

We will pay, up to our limit, compensatory damages for which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy.

(Some emphasis omitted.) The policy defines occurrence as an "accident" that results in bodily injury. The term "accident," which is not defined in the policy, has been defined as "an unexpected, unforeseen, or undesigned happening or consequence." Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354, 358-59, 65 N.W.2d 122, 126 (1954). The parties do not dispute that plaintiff suffered a bodily injury. We must, therefore, determine whether the cause of the bodily injury--the sexual contact--was an accident.

Appellant first contends that the sexual contact was consensual (or was "not non-consensual"). Appellant, however, offers no evidence to support this claim. There is no affidavit or other document from plaintiff that states she consented or even appeared to consent to the sexual contact. On the contrary, plaintiff, in her complaint, states and alleges that the sexual contact was "without consent." The only mention that the contact was consensual is found in appellant's answer to the underlying complaint and in his letters to respondent. Further, if the sexual contact was consensual, "there is no tort cause of action." Allstate Ins. Co. v. S.F., 518 N.W.2d 37, 40 (Minn. 1994).

Appellant also attempts to characterize the wrongful act as his negligence in failing to discover plaintiff's "sleep disorder." There is no evidence, however, anywhere in the record that plaintiff had a sleep disorder. Further, it was the sexual contact that caused the injury, not appellant's failure to discover what he claims to be a sleep disorder.

Appellant substantially relies on North Star to establish respondent's duty to defend. North Star, however, is distinguishable in several important ways. In North Star, the tortious act was the transmission of herpes through voluntary, consensual sexual intercourse. North Star, 431 N.W.2d at 139. Here, the nonconsensual sexual contact was the cause of injury. There was also an unresolved material issue of fact in North Star. The tortious act was accidental only if the defendant did not know he had herpes at the time of the transmission. Id. at 141. Until a jury could answer this fact question, the claim arguably was within the scope of coverage. Id. There is no such fact question here. The sexual contact occurred, and it caused the injury.

There is no evidence in the record that the sexual contact was accidental. Cf. Allstate, 518 N.W.2d at 40 (finding nonconsensual sexual assaults could not be characterized as "accidents"). We agree with the district court's conclusion that the sexual contact was wrongful because it was nonconsensual and that it was not an accident because it was expected, foreseen, or designed. Therefore, it was not an "occurrence" under appellant's policy and respondent had no duty to defend.

II. Intentional Act Exclusion

The homeowner's policy contains an exclusion that states:

1. Coverage D - Personal Liability and Coverage E - Medical Expense do not apply to bodily injury or property damage:

a. which is expected or intended by any insured;

(Some emphasis omitted.)

An injury is expected or intended if the insured intended to cause bodily injury or

"when the character of the act is such that an intention to inflict an injury can be inferred" as a matter of law.

Continental W. Ins. Co. v. Toal, 309 Minn. 169, 177, 244 N.W.2d 121, 125 (1976) (quoting Caspersen v. Webber, 298 Minn. 93, 99, 213 N.W.2d 327, 330 (1973)). The Minnesota Supreme Court

has inferred an insured's intent to harm in cases of nonconsensual sexual conduct as a matter of law so as to preclude insurance coverage.

Auto-Owners Ins. Co. v. Todd, 547 N.W.2d 696, 699 (Minn. 1996); see also Horace Mann Ins. Co. v. Independent Sch. Dist. No. 656, 355 N.W.2d 413, 416 (Minn. 1984) (intent to injure inferred from high school coach's nonconsensual sexual contacts with student); Estate of Lehmann v. Metzger, 355 N.W.2d 425, 426 (Minn. 1984) (intention to inflict injury will be inferred when construing intentional act exclusion where underlying claim is that insured intentionally sexually assaulted victim); State Farm Fire & Cas. Co. v. Williams, 355 N.W.2d 421, 424 (Minn. 1984) (intent to cause bodily injury inferred from nonconsensual sexual contact with physically incapacitated adults).

In the underlying complaint, plaintiff alleges that appellant, along with two others, by entering her sleeping quarters without consent, "placed her into a zone of danger of imminent physical harm" with the result that plaintiff suffered the negligent infliction of emotional distress. In a similar case with the same allegation, the Minnesota Supreme Court stated:

This allegation * * * amounts to nothing more than a claim that the three men entered plaintiff's home to assault her sexually; in other words, this allegation is just a variation of the intentional assault claims, which are barred by the intentional act exclusion.

Allstate, 518 N.W.2d at 40. The court went on to hold that the insurer did not have a duty to defend since the

"negligence" allegation is essentially that the insured, as well as his co-defendants, intended or expected to sexually assault [claimant] when they allowed themselves to enter her home, thereby placing her within a zone of danger.

Id. at 41.

The same is true here. We hold that the intent to injure may be inferred as a matter of law. Coverage is therefore barred under the intentional acts exclusion.

III. Sexual Act Exclusion

The homeowner's policy includes the following exclusion:

1. Coverage D - Personal Liability and Coverage E - Medical Expense do not apply to bodily injury or property damage:

* * * *

k. arising out of or resulting from any actual or alleged sexual abuse or molestation of a person by an insured.

(Some emphasis omitted.)

Sexual abuse is defined as "[i]llegal sex acts performed against a minor by a parent, guardian, relative, acquaintance, or other person." Black's Law Dictionary 958 (abridged 6th ed. 1991). To molest means "[t]o accost and harass sexually." American Heritage Dictionary 808 (2d college ed. 1985). In her complaint, plaintiff states and alleges that respondent

without * * * consent committed or attempted to commit one or more acts of carnal intercourse or other unwelcome touching or sexual act upon Plaintiff.

At the very least the nonconsensual conduct alleged in the complaint is molestation. The exclusion, therefore, applies.

Appellant argues, however, that this exclusion was waived by respondent's failure to raise this defense in its denial letters or its answer to appellant's complaint. This argument is without merit. Waiver cannot be used to create coverage where none exists. See Continental Ins. Co. v. Bergquist, 400 N.W.2d 199, 201 (Minn. App. 1987) (estoppel cannot be used to enlarge coverage); Malakowsky v. Johannsen, 374 N.W.2d 816, 819 (Minn. App. 1985) (estoppel cannot be used to create coverage); see also Northwest Airlines, Inc. v. Federal Ins. Co., 32 F.3d 349, 357 (8th Cir. 1994) (under Minnesota law, "waiver cannot be used to bring within the coverage of an insurance policy risks not covered by its terms.").

The omission of the sexual abuse exclusion in respondent's correspondence denying coverage and defense or in its answer has caused appellant no prejudice. Appellant was timely advised that coverage and defense were being denied. Further, coverage was denied on the basis of a lack of occurrence and the intentional act exclusion, and would have been denied regardless of the sexual act exclusion.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Appellant contends that the plaintiff is unable to recall whether appellant actually had nonconsensual sexual contact with her. According to appellant, plaintiff claims that she suffers from a sleep disorder that makes it appear as though she is awake (she can walk and carry on a conversation) when in fact she is asleep.