This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Metropolitan Property and Casualty

Insurance Company and Affiliates,



Michael Charles Miller,


Jennifer Miller,


B. M. F., et al.,


Filed April 7, 1998


Schumacher, Judge

Dissenting, Shumaker, Judge

Carver County District Court

File No. CX97378

R. Gregory Stephens, Richard L. Pemberton, Jr., Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Metropolitan Property and Casualty Company)

Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for respondent Michael Miller)

Graham N. Heikes, 4700 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent Jennifer Miller)

Robert E. Kuderer, Teresa M. Thompson, Johnson & Condon, P.A., 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for appellant B.M.F.)

Patricia E. Kuderer, Douglas J. Schiltz, Hoff, Barry & Kuderer, P.A., 7901 Flying Cloud Drive, Suite 260, Eden Prairie, MN 55344 (for appellant B.M.F.)

Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Mansur, Judge.**

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



Appellant B.M.F. contends the district court erroneously interpreted the definition, exclusion, and severability provisions of an insurance contract to deny coverage for respondent Jennifer Miller, who is alleged to have negligently breached her duty to prevent her husband's foreseeable sexual abuse of B.M.F. We reverse.


This case arises out of a personal injury action against the perpetrator of sexual abuse and his wife. The child, B.M.F., by her parents, brought an action against their former friends and neighbors, respondents Jennifer and Michael Miller for abuse that Michael Miller perpetrated against B.M.F. Michael Miller admitted he intentionally sexually abused B.M.F. from 1990-1995. He pleaded guilty to five counts of second-degree criminal sexual conduct and was sentenced to 65 months in prison. This appeal focuses on B.M.F.'s civil claims against Jennifer Miller: negligence, negligent infliction of emotional distress, and false imprisonment. B.M.F. claimed Jennifer Miller negligently failed to prevent the sexual abuse.

The Millers' homeowner's insurer, respondent Metropolitan Property and Casualty Company (Metropolitan), brought this action seeking a declaratory judgment that the policy did not provide coverage to the Millers and that Metropolitan had no duty to defend or indemnify.

Metropolitan moved for summary judgment. After the hearing on the motion, B.M.F. gave notice of her intention not to pursue civil claims against Michael Miller, but only against Jennifer Miller. The district court granted the motion and declared that the insurance policy does not provide coverage for the Millers, nor does Metropolitan have the duty to defend or indemnify. Jennifer Miller and B.M.F. then entered into a Miller Shugart agreement. B.M.F. challenges summary judgment.


On review of summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). The parties do not dispute the facts on appeal. In such a case, we need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). The interpretation of an insurance policy is a question of law that the court decides de novo. Meister v. Western Nat'l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn. 1992).

1. B.M.F. contends the district court erroneously interpreted various provisions of the insurance policy. When considering an insurance contract, the court must read the policy as a whole and give unambiguous language its plain and ordinary meaning. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn. 1995).

Metropolitan's policy defines bodily injury as "any bodily harm, sickness or disease. * * * Bodily injury does not include: * * * the actual, alleged or threatened sexual molestation of a person." By its plain language, this provision serves as an exclusion of coverage as well as a definition. The court construes exclusions narrowly against the insurer. Id. at 314.

The plain language of the definition of bodily injury provides no coverage for the "sexual molestation of a person." This terminology refers to an action, a form of conduct: the act of molesting a person. B.M.F. interprets this definition of bodily injury to exclude coverage only for Michael Miller, the perpetrator of the abuse. The district court, however, interpreted this definition to be the equivalent of defining bodily injury as "any injury caused by sexual molestation," thereby excluding coverage for the negligence claim against Jennifer Miller, because the damages alleged "arose from" the sexual abuse of B.M.F.

The critical distinction between B.M.F.'s interpretation of the policy language and Metropolitan's interpretation lies in the broader sweep of an exclusion containing the words "arising out of." See Redeemer Covenant Church v. Church Mut. Ins. Co., 567 N.W.2d 71, 76-78 (Minn. App. 1997), review denied (Minn. Oct. 2, 1997). In Redeemer, numerous sex abuse victims brought an action against their church for negligently retaining and failing to supervise the pastor who committed the abuse. Id. at 74. This court held that exclusionary language in the church's policy did not apply to the church on three grounds. First, the relevant policy provisions excluded from coverage "[a]ny * * * criminal or malicious act or omission of any insured" and "[l]icentious, immoral or sexual behavior intended to lead to or culminating in any sexual act." Id. at 77. Second, the church was not the perpetrator of the excluded criminal or licentious acts. Id. Third, the church's exposure for liability was for negligent supervision. Id. Because the relevant exclusions in Redeemer did not contain "arising out of" language, they only served to exclude from coverage certain activities, i.e. criminal acts and licentious behavior. Id.

That same critical distinction applies here. Metropolitan argues bodily injury means any injuries "arising out of" sexual molestation, but its policy language does not say that. The policy only states that bodily injury does not include "sexual molestation."

As the drafter of the insurance policy, Metropolitan could have drafted its exclusions to cover injury or liability arising out of criminal acts or licentious behavior, but it did not do so. Id. at 78. Indeed, an insurer could draft a clause under which one insured's intentional acts would have precluded coverage for negligent supervision claims against other insureds. Id. (citing Allstate Ins. Co. v. Steele, 74 F.3d 878, 881 (8th Cir. 1996) (applying Minnesota law). Steele is distinguishable from this case, however, because that policy excluded coverage for injuries resulting from acts that were intended or expected to cause bodily injury, and included the "resulting from" language that does not exist here. 74 F.3d at 880. Metropolitan did not include this language in its policy.

The Redeemer court noted the distinction between policies that exclude coverage for an act versus injuries "arising out of" an act. Redeemer, 567 N.W.2d at 78. Narrowly drafted exclusions apply only to what is specifically excluded. Id. This case is similar to Redeemer in that the language of the policy is limited on its face and cannot be extended by judicial interpretation. The specific exclusion of coverage for sexual molestation does not apply to Jennifer Miller or the claims against her.

The district court also denied coverage based on a section relating to intentional and criminal acts. That clause provides:

We do not cover:

Bodily injury * * * reasonably expected or intended by you or which is the result of your intentional or criminal acts.

The district court determined that B.M.F.'s injury arising from a criminal act was excluded from coverage under the criminal acts exclusion as it pertained to Jennifer Miller. See Liebenstein v. Allstate Ins. Co., 517 N.W.2d 73, 75 (Minn. App. 1994) (holding criminal act exclusion excludes coverage for injuries resulting from criminal act, regardless of intent). But the claims against Jennifer Miller are for negligence in her failure to prevent the abuse and protect B.M.F. In contrast, Liebenstein involved a claim against an insured who had committed an assault and caused the injury. Id. Although the criminal act exclusion was properly applied to deny coverage to Michael Miller, it does not apply to Jennifer Miller because the claims against her are for negligence, not criminal acts.

We note, however, that coverage of Jennifer Miller is not yet determined because a fact issue still remains over whether she aided and abetted her husband in the abuse. If she knew of and helped conceal his conduct, then she also committed an intentional act, which is excluded from coverage. This question still remains for trial.

2. B.M.F. also contends that the court overlooked the severability clause, which would have allowed coverage for Jennifer Miller. That clause provides:

Subject to the limit of liability, this insurance applies separately to each covered person or organization against whom claim is made or suit is brought.

By the plain language of this clause, Michael Miller's conduct should not affect coverage for Jennifer Miller. Contrary to this clause, the district court denied coverage to Jennifer Miller because:

B.M.F. would not have been injured but for Michael Miller's intentional misconduct. The claims of negligence alleged against Michael Miller by B.M.F. all arise from Miller's overall intentional conduct in molesting B.M.F. Absent the intentional molestation, there would be no claim of negligence. The two are inextricably linked. These factors all work toward the exclusion of coverage under the Metropolitan policy.

Again, this analysis focuses primarily on Michael Miller's conduct rather than that of Jennifer Miller. While her negligent failure to prevent abuse is related to his conduct of abuse, the severability clause allows each claim to be considered for coverage independently.


SHUMAKER, Judge (dissenting).

I respectfully dissent. It is fundamental law that in interpreting an insurance contract the court must enforce the parties' unambiguously expressed intent. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305 (Minn. 1995). We are thus required to begin with an examination of the policy language. If it is clear, we must honor it as the expression of the parties' contractual intent. Id.

I believe the policy is clear in its exclusion of sexual molestation from coverage and in its limitation of coverage to accidents. The coverage provision respecting personal liability states:

We will pay all sums for bodily injury * * * to others for which the law holds you responsible because of an occurrence.

"Occurrence" and "bodily injury" are defined:

"OCCURRENCE" means an accident * * * resulting in injury * * * during the term of the policy.

"BODILY INJURY" means any bodily harm, sickness or disease. * * *

Bodily injury does not include * ** the actual, alleged or threatened sexual molestation of a person.

In Minnesota law, the term "accident" must be given its common and ordinary meaning of an unexpected and unintentional event. See Bobich v. Oja, 104 N.W.2d 19, 24 (Minn. 1960) and Weis v. State Farm Mutual Auto Ins. Co., 242 Minn. 141, 144, 64 N.W.2d 366, 368 (1954).

The majority reasons that the bodily injury exclusion pertains to an action and not a result. There are three problems with this approach. First, it strains the plain language of the coverage provision. It appears, prior to a hypertechnical analysis, that the insured bought a homeowners' policy that does not insure against sexual molestation. Second, it assumes that sexual molestation is only an action and not also a result. That assumption seems clearly to contradict a common and ordinary understanding that sexual molestation is per se harmful contact. Third, it rewrites the scope of coverage.

In addition to the foregoing problems, the majority's decision rewrites the policy to cover harm from an intentional act. The plain language of the policy indicates that the insurer will pay for bodily harm because of an accident. In other words, it is clear that the harm, in order to be compensable, must originate from an accident. The harm in this case originated from an intentional act. There would have been no harm but for the intentional sexual molestation. See Allstate Ins. Co. v. Steele, 74 F.3d 878, 881 (8th Cir. 1996).

The majority's reliance on Redeemer Covenant Church v. Church Mut. Ins. Co., 567 N.W.2d 71 (Minn. App. 1997) is misplaced. That case dealt with a professional liability insurance policy, a type of policy more likely to cover acts of negligent supervision since supervision was part of the insured's professional duty. Additionally, the operative language was different. Acts "arising out of" the professional conduct were covered. The homeowners' policy in this case does not use such broad language.

I believe the district court correctly interpreted the insurance policy by enforcing its plain meaning. I would affirm.