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Golden Gate University Law Review Volume 18 Issue 3 Women's Law Forum Article Litigating Incest Torts Under Homeowner's Insurance Policies Christine Cleary Follow this and additional works
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Golden Gate University Law Review Volume 18 Issue 3 Women's Law Forum Article Litigating Incest Torts Under Homeowner's Insurance Policies Christine Cleary Follow this and additional works at: Part of the Civil Procedure Commons, and the Insurance Law Commons Recommended Citation Christine Cleary, Litigating Incest Torts Under Homeowner's Insurance Policies, 18 Golden Gate U. L. Rev. (1988). This Comment is brought to you for free and open access by the Academic Journals at Digital Commons: The Legal Scholarship Golden Gate University School of Law. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of Digital Commons: The Legal Scholarship Golden Gate University School of Law. For more information, please contact Cleary: Litigating Incest Torts COMMENT LITIGATING INCEST TORTS UNDER HOMEOWNER'S INSURANCE POLICIES I. INTRODUCTION Incestuous child abuse is a problem of alarming proportions. A recent study involving 930 women from California's Bay Area indicated that sixteen per cent of the women who participated (one out of six) had been sexually abused by a relative before the age of eighteen. 1 Many women 2 who have been the victims of incestuous abuse are bringing civil actions for damages against their abusers. 3 Such litigation can be an important source of redress for these women; it can both empower the victim and force the abuser to take responsibility for his actions. In some cases these tort claims are being tendered to the alleged tortfeasors' homeowner's insurance carrier for defense and indemnity under the liability coverage provisions. II No California appellate court has 1. D. RUSSELL, THE SECRET TRAUMA: INCEST IN THE LIVES OF GIRLS AND WOMEN 10 (1986). 2. See generally D. FINKELHOR, CHILD SEXUAL ABUSE (1984). While there are men who are victims of incestuous abuse as well, most of the information available is about father-daughter incest and by far the great majority of victims are women. It is estimated that up to 97% of the incestuous assault cases involve a male perpetrator. S. BUT LER, CONSPIRACY OF SILENCE: THE TRAUMA OF INCEST 5 (1978). See also D. FINKELHOR, SEXUALLY VICTIMIZED CHILDREN 75 (1979), in which the author reports that almost all sexual abusers are men. 3. See, e.g., Comment, Tort Remedies for Incestuous Abuse, 13 GOLDEN GATE U. L. REV. 609, (1983). 4. See, e.g., J. HERMAN, FATHER-DAUGHTER INCEST 169 (1981). The author notes that the conviction of an incest offender through the criminal justice system generally has a positive effect on the victim and the incestuous family. See also, Tort Remedies, supra note 3, at 617 n. 55 (reporting a telephone interview with S. BUTLER, author, CONSPIRACY OF SILENCE, in which the benefits of a civil proceeding are discussed). 5. None of these cases has reached the appellate court level in California, but there 539 Published by Digital Commons: The Legal Scholarship Golden Gate University School of Law, Golden Gate University Law Review, Vol. 18, Iss. 3 [1988], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 18:539 addressed the issue of whether insurers are liable for coverage of incest torts under homeowner's policies. However, some cases have settled at the trial court level with the insurer paying part of the settlement. 8 This Comment will address insurers' liability for incest torts under standard homeowner's insurance policies. It primarily will examine potential liability in light of the intentional act and household exclusions which are typically contained in homeowner's policies. II. BACKGROUND The tort based on incestuous abuse is relatively new. The unique characteristics of incesf present significant challenges for victims seeking legal redress. Women who choose to pursue legal action face two major obstacles. One is the possibility of a time-bar based on the statute of limitations;8 another is the liability issue with respect to any homeowner's insurance contracts held by the alleged abuser. Both can best be understood by examining the effects of incest on the victim and the characteristics of the perpetrator. are some trial court cases where an alleged incestuous abuse offender is being sued under his homeowner's policy. See, e.g., State Farm Fire & Cas. Co. v. Graff, No (Superior Court of California, County of Contra Costa filed March 14, 1986). There are a number of out of state cases which have reached the appellate court level. See, e.g., MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 471 A.2d 1166 (1984); Rodriquez v. Williams, 107 Wash. 2d 381, 729 P.2d 627 (1986). 6. See, e.g., Orman v. Orman, No (Superior Court of California, County of Contra Costa filed Nov. 20, 1984); Hertz v. Symmons, No (Superior Court of California, County of Contra Costa filed Mar. 23, 1984); Katz v. Birnberg, No (Superior Court of California, County of Sacramento filed Nov. 29, 1984). 7. This Comment adopts the broad definition of incestuous assault proposed by S. BUTLER, supra note 2, at 4-5: any manual, oral or genital sexual contact or other explicit sexual behavior that an adult family member imposes on a child, who is unable to alter or understand the adult's behavior because of his or her powerlessness in the family and early stage of psychological development. Assault under this definition is not limited to sexual intercourse but includes any sexual activity or experience imposed on a child which results in emotional, physical or sexual trauma. Id. at See Comment, supra note 3, at (arguing that victims of incestuous abuse should be permitted to plead the delayed discovery exception to the statute of limitations for personal injuries). See also, Comment, Adult Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and Long-term Damages, 25 SANTA CLARA L. REV. 191 (1985); Comment, Statutes of Limitations in Civil Incest Suits: Preserving the Victim's Remedy, 7 HARV. WOMEN'S L. J. 189 (1984). 2 Cleary: Litigating Incest Torts 1988] LITIGATING INCEST TORTS 541 A. CHARACTERISTICS OF INCEST THAT LEAD TO TIME-BAR PROBLEMS The incest victim may experience profound psychological problems. 9 In childhood these problems may be expressed as anxiety, hostility, low self-esteem and feelings of guilt, shame and inferiority.lo Adult women often find themselves unable to form intimate relationships; they can suffer extreme isolation, sexual dysfunction and deep mistrust of men.l1 They frequently suffer from addictions to drugs or alcohol. 12 These injuries may or may not ever be linked to the abuse that caused them because of a massive repression 13 that often occurs in victims. 14 It is this massive repression of the memories of the incestuous abuse that causes statute of limitations problems. Commonly the victim of incestuous abuse does not recognize the harmful effects of the abuse until well after it has stopped. 111 In particular, children who suffered violent abuse or abuse in the very early childhood years may not even begin to remember the trauma they suffered until well into adulthood. IS This process of discovering the harm may take a number of years.u Once the injuries have been discovered, it often takes additional time, with the aid of professional psychological intervention, for the victim to transfer blame from herself to the perpetrator.ls Because of the characteristic lengthy discovery process such women go through, it is very rare that an action can be brought within one year 19 of the date of the injury, the tradi- 9. See, e.g., D. RUSSELL, THE SECRET TRAUMA: INCEST IN THE LIVES OF GIRLS AND WOMEN 386 (1986); S. BUTLER, supra note 2, at 5; J. HERMAN, supra note 4, at 29; D. FINKELHOR, CHILD SEXUAL ABUSE (1984). 10. See, e.g., J. HERMAN, supra note 4, at Id. at Id. at See, e.g., D. RUSSELL, supra note I, at 34, Id. 15. Id. 16. Id. 17. Id. at See D. FINKELHOR, SEXUALLY VICTIMIZED CHILDREN 214 (1979). 19. CAL. CIV. CODE 340(3) (West 1982 & Supp. 1988) imposes a one year limitation for commencing actions that involve [l]ibel, slander, assault, battery, false imprisonment, seduction, injury or death from wrongful act or neglect, forged or raised checks, injury to animals by feeder or veterinarian. Under CAL. CIV. CODE 352(a)(l) (West 1982 & Supp. 1988), the statute of limitations is tolled until a person entitled to bring Published by Digital Commons: The Legal Scholarship Golden Gate University School of Law, Golden Gate University Law Review, Vol. 18, Iss. 3 [1988], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 18:539 tional tort standard. B. CHARACTERISTICS OF INCESTUOUS FAMILIES Any analysis of the insurance liability issues involved in civil actions based on incestuous abuse should take into consideration the characteristics of the incestuous family. Very little is known about the perpetrators in incestuous abuse cases. 20 Most of the information available about incestuous family systems is contained in studies of father-daughter incest. 21 Little information is available about incestuous abuse involving brothers, uncles or grandfathers. 22 One researcher has suggested that incest occurs when certain preconditions are met. 23 First, the father's relationship with his wife has deteriorated to the point where he begins to take a sexual interest in his daughter whom he can manipulate to fulfill his sexual and emotional needs.24 Second, the father's natural inhibitions against incest might be overcome by a setback in his career or, frequently, by alcohol.21i He tells himself that he really loves his daughter and that no great harm will result from his sexual attention to her.28 Additionally, the wife/mother does not provide appropriate protective support for her daughter, but rather is absent physically or emotionally.27 Finally, the daughter's resistance to her father is not strong because she trusts him.28 She likes the attention and affection she is getting even if she hates what he is doing to her.db She may keep silent about the abuse because she fears that the family will fall apart if she speaks.30 Descriptions of the perpetrator range from that of a such an action reaches the age of majority. 20. D. FINKELHOR, supra note 9, at Id. at Id. at 62, Id. at Id. 25.Id. 26.Id. 27.Id. 28.Id. 29.Id. 30.Id. 4 Cleary: Litigating Incest Torts 1988] LITIGATING INCEST TORTS 543 moralistic, authoritarian figure 31 to that of a timid and unassertive person with poor social skills. 32 III. CIVIL ACTIONS BASED ON INCESTUOUS ABUSE A. THE CAUSES OF ACTION Practitioners representing incest victims may take a 'shotgun' approach in the complaint for damages, alleging all possible causes of action. A typical complaint might include the intentional torts of assault, battery and intentional infliction of emotional distress, as well as negligence and negligent infliction of emotional distress. 33 Some attorneys may add a cause of action against the victim's mother for negligent supervision. It may be alleged that the mother failed to provide protection or support for the victim of incest, even though she was fully aware of the facts. 34 B. TIME-BAR BASED ON THE STATUTE OF LIMITATIONS Much attention in the area of tort claims based on incestuous abuse has focused on the problems presented by delayed discovery of both the injury and its cause.3~ Plaintiffs may rely on the argument that the one year statute of limitations should not begin to run until the plaintiff has discovered the relationship between the incestuous acts and her injuries. 36 This 'delayed discovery' argument is premised on the latent and often undiscoverable nature of incest injuries. 37 California recently en- 31. Id. at Id. 33. See, e.g., Bechtel v. Bechtel, No (Superior Court of California, County of Contra Costa tiled July 16, 1987). 34. See generally J. HERMAN, supra note 4. The author cautions, however, that no degree of maternal absence or neglect constitutes an excuse for paternal incest, unless one accepts the idea that fathers are entitled to female services within their families, no matter what the circumstances. Id. at See, e.g., Comment, supra note 3; Comment, Adult Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and Long-term Damages, 25 SANTA CLARA L. REV. 191 (1985); Comment, Statutes of Limitations in Civil Incest Suits: Preserving the Victim's Remedy, 7 HARV. WOMEN'S L. J. 189 (1984). 36. See Comment, supra note 3, at ; see also Comment, California Code of Civil Procedure Section 340.5: The Discovery Rule Codified? 13 Sw. U.L. REV. 759 (1983) (providing a thorough history of the delayed discovery rule in California). 37. See supra notes and accompanying text. Published by Digital Commons: The Legal Scholarship Golden Gate University School of Law, Golden Gate University Law Review, Vol. 18, Iss. 3 [1988], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 18:539 acted legislation to extend the statute of limitations for tort claims based on incestuous abuse to three years. as There promises to be continued litigation and definition of the law in this area. One California court recently held that an incest victim could not take advantage of the delayed discovery doctrine if she had discovered all of the facts essential to the cause of action at the time the abuse occurred. as In that case, the plaintiff alleged that the sexual assaults were committed against her will, caused her great fear and that she had acceded to the defendant's acts because she felt that he intended to carry out his threats of harm.40 The court stated that [t]he immediate harm caused by the alleged assaults gave [her] a right to sue at that time. u Thus, it sustained a demurrer to the complaint which was based on the statute of limitations. n 38. CAL. CIV. PROC. CODE (West 1982 & Supp. 1988) reads as follows: (a) In any civil action for injury or illness based upon lewd or lascivious acts with a child under the age of 14 years, fornication, sodomy, oral copulation, or penetration of genital or anal openings of another with a foreign object, in which this conduct is alleged to have occurred between a household or family member and a child where the act upon which the action is based occurred before the plaintiff attained the age of 18 years, the time for commencement of the action shall be three years. (b) Injury or illness as used in this section includes psychological injury or illness, whether or not accompanied by physical injury or illness. (c) Household or family member as used in this section includes a parent, stepparent, former stepparent, sibling, stepsibling, or any other person who regularly resided in the household at the time of the act, or who six months prior to the act regularly resided in the household. (d) Nothing in this bill is intended to preclude the courts from applying delayed discovery exceptions to the accrual of a cause of action for sexual molestation of a minor. (e) This section shall apply to both of the following: (1) Any action commenced on or after January I, 1987, including any action which would be barred by application of the period of limitation applicable prior to January I, (2) Any action commenced prior to January I, 1987, and pending on January I, DeRose v. Carswell, 196 Cal. App. 3d loll, 1017, 242 Cal. Rptr. 368, 371 (1987). 40. [d. at 1015, 242 Cal. Rptr. at [d. at 1017, 242 Cal. Rptr. at [d. A petition for review of the decision was denied by the California Supreme Court on March 11, Cleary: Litigating Incest Torts 1988] LITIGATING INCEST TORTS 545 IV. INSURANCE COVERAGE ISSUES A. HOMEOWNER'S INSURANCE POLICIES Mortgage holders generally require homeowners to carry insurance against loss,.8 The typical homeowner's policy is a 'package' of risk coverages which includes liability coverage for the insureds' liability arising out of the covered premises. Under this liability coverage a policy holder is insured against any occurrence , generally defined as an accident, including continuous or repeated exposure to conditions. 4o Insurers will defend the insured and pay for damages if a claim is made against an insured for bodily injury and property damage under the liability coverage of a policy s However, such coverage usually excludes bodily injury or property damage which is expected or intended by the insured. Further, a policy typically includes all relative residents of the household as 'insureds' under the policy'8 and excludes medical coverage for injuries to those household members,.e This examination of insurance coverage for incest torts will 43. See 2 R.C. MAXWELL, CALIFORNIA REAL ESTATE LAW AND PRACTICE, [1], at (May 1987)(noting that [i]f a property owner has a mortgage or deed of trust on the property, the lender's approval of the [homeowner's] policy will probably be required ) G. COUCH, CYCLOPEDIA OF INSURANCE LAW 2D 1:61, at 152 (rev. ed. 1984) G. COUCH, CYCLOPEDIA OF INSURANCE LAW 20 44:285, at 437 (rev. ed. 1984). 46. See 1 G. COUCH, supra note 44, at 1:61, at 152. Typical language of such a policy reads: If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will: a. pay up to our limit of liability for the damages for which the insured is legally liable; and b. provide a defense at our expense by counsel of our choice. We may make any investigation and settie any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence equals our limit of liability. Id. at 1:61, at Id. at 1:61, at Id. at 1:61, at Id. at 1:61, at 164. Published by Digital Commons: The Legal Scholarship Golden Gate University School of Law, Golden Gate University Law Review, Vol. 18, Iss. 3 [1988], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 18:539 focus on the exclusion for acts which are expected or intended by the insured and the exclusion for household members. B. POSSIBLE EFFECT OF EXCLUSIONS ON INCEST TORT CLAIMS When negligence is alleged in an incest tort claim the door opens to the possibility of coverage under the defendant's homeowner's insurance policy.60 Insurers are likely to claim the insured is not covered because of the exclusion for intentional acts and/or the exclusion for injuries to household members. Procedurally, insurers may dispute their duty to defend a claim in two different ways. An insurer may bring a motion for declaratory relief against the insured and the injured party to have the court declare whether the insurer is obligated to defend a suit against its insured and whether it will be liable for any judgment. 61 If the court finds that the insurer is not liable for coverage of the claim, the insurer will be relieved of any further duty to defend the action. 62 The critical consideration here is 50. See 11 G. COUCH, supra note 45, 44:285, at 437. The author notes that contemporary liability policies generally provide coverage on an occurrence basis and highly probable or intentionally caused damage is generally excluded from the definition of an occurrence G. COUCH, CYCLOPEDIA OF INSURANCE LAW 2D 74:117, at 624; 74:150, at 664 (rev. ed. 1983). In California, a declaratory relief action is authorized by CAL. CIV. PROC. CODE 1060 (West 1980), which reads as follows: Any person interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action in the superior court or file a cross-complaint in a pending action in the superior, municipal or justice court for a declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such instrument or con
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