In Shelby Casualty Insurance Co. v. H.T., 2007 WL 879494 (N.J.Super.A.D., 2007), a homeowners' insurer sought declaratory judgment that the intentional injury exclusion barred coverage for a thirteen-year-old insured's sexual assault of a six-year-old girl.

 

The issue for the Superior Court of New Jersey to determine was whether the inferred intent rule, which precludes, as a matter of law, insurance coverage for a sexual assault committed by an adult against a young child, applies when the sexual assault is committed by a minor under fourteen years of age.

The insured's policy provided liability coverage for damages because of “bodily injury” caused by an “occurrence” for which the insured is legally liable. The policy defines “occurrence” as “an accident … which results, during the policy period, in … '[b]odily injury.'” The policy contained an exclusion from liability coverage for bodily injury “which is expected or intended by one or more 'insureds' even if the 'bodily injury' … is of a different kind, quality or degree than expected or intended.”

The court stated that whether the perpetrator's act in committing the sexual assault was intentional should not be the controlling question. Rather, the accidental nature of an occurrence should be determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury. If not, the resulting injury is accidental, even if the act that caused the injury was intentional. Therefore, the controlling issue should be whether the insured intended or expected to cause harm to the victim.

 

Applying this reasoning to the facts of the case, the court concluded that the per se inferred intent rule did not apply, and a factual determination must be made on a case by case basis to determine the perpetrator's subjective intent.