STATE FARM FIRE AND CASUALTY COMPANY v.

MARK TULLY et al., SC 19600

Judicial District of Hartford

     Insurance; Torts; Whether Coverage for Damages Caused by Insured’s Sexual Assault of Child Precluded by Intentional Conduct Exclusion; Whether Insured’s Voluntary Intoxication Precludes Coverage for Damages Caused by Intentional Acts.   A minor child brought a negligence action against Mark Tully, alleging that she suffered injuries when Tully sexually assaulted her in a Farmington park and that her injuries were caused by Tully’s negligence in that he was under the influence of intoxicating liquor when he committed the assault.  At the time of the incident, Tully was covered by a homeowner’s policy issued by State Farm Fire and Casualty Company (State Farm) that excluded coverage for bodily injury that is “expected or intended by the insured.”  State Farm brought this action seeking a declaratory judgment that it had no duty to defend or indemnify Tully against the claim asserted in the child’s lawsuit, and both Tully and the child were named as defendants.  State Farm moved for summary judgment, claiming that coverage was barred by the policy’s intentional conduct exclusion.  The defendants argued that summary judgment was not appropriate because there remained a genuine issue of material fact as to whether Tully was able to comprehend the wrongfulness of his conduct, and they submitted affidavits from two doctors opining that Tully’s level of intoxication made him incapable of possessing the intent to cause harm to the child.  The trial court granted State Farm’s motion for summary judgment, ruling that there was no genuine issue of material fact in dispute and that, as a matter of law, coverage was barred by the intentional conduct exclusion.  The court explained that United Services Automobile Assn. v. Marburg, 46 Conn. App. 99 (1997), established that there is a rebuttable presumption of an intent to harm in child molestation cases due to the heinous nature of the conduct.  The trial court also explained that, because in civil cases it would violate public policy to relieve citizens of the consequences of their acts based upon their voluntary intoxication, an insured will not be heard to complain that his voluntary intoxication does not necessarily preclude coverage under an insurance policy that excludes coverage for harm caused by intentional acts.  The defendants appeal, claiming that the trial court wrongly rendered summary judgment for State Farm because (1) the issue of Tully’s intent should not have been decided on a motion for summary judgment, (2) State Farm presented no evidence as to whether Tully was unable to undertstand the wrongfulness of his conduct or to control his conduct, and (3) the defendants presented expert medical evidence that Tully was in fact unable to understand or control his conduct.  The defendants also claim that the trial court wrongly relied on United Services Automobile Assn. v. Marburg in ruling that it could be presumed that Tully intended to injure the child when he sexually assaulted her.