No. 92-180 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

-- - 

FARMERS UNION MUTUAL INSURANCE, 

Plaintiff and Respondent, 

-vsRON KIENENBERGER, PATTI KIENENBERGER, 

JARET KIENENBERGER, AND J.L. 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Filed: 

Patrick F. 

Montana (K 

John E. Se: 

Montana ( 

Flaherty, Attorney at Law, Great Falls, 

Ienenberger) 

idlitz, Jr., Attorney at Law, Great Fa1 

J.L.) 

For Respondent: 

William J. Gregoire, Smith, Walsh, Clarke 

Gregoire, Great Falls, Montana 

Submitted on Briefs: November 24, 1992 

Decided: February 25, 1993 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Eighth 

Judicial District, County of Cascade, State of Montana, the 

Honorable John M. McCarvel presiding. The Kienenbergers and J.L. 

appeal from an order granting the respondent, Farmers Union Mutual 

Insurance (Farmers Union) summary judgment on the basis that it 

owed no duty to defend or indemnify its insured, Ron Kienenberger, 

in the underlying action. We affirm. 

The underlying action arose in January 1991, when Ron 

Kienenberger's son Jaret, age 13, raped J.L., age 28. In the 

ensuing criminal proceedings, Jaret pled guilty to sexual 

intercourse without consent. J.L. then sued Jaret's parents on a 

theory of negligent supervision. She alleged in her complaint that 

the Xienenbergers owed a duty to her and to others to provide 

appropriate supervision to their child, Jaret Kienenberger, and 

that they had negligently supervised his upbringing "to the point 

where it was reasonably foreseeable that he would be a danger to 

himself and to third parties. " The District Court dismissed J. L. ' s 

action in April, 1992, on the Kienenbergers' motion, and J.L. 

appealed. Her appeal has not been decided. 

The case before the Court is a declaratory judgment action 

instituted in District Court in October 1991 by Farmers Union. 

Farmers Union sought an order that it owed no duty to its policy 

holder, Ron Kienenberger, even though it had retained counsel for 

the Kienenbergers in J.L.'s action. The District Court held that 

under Ron Kienenberger's Farm and Ranch Liability Policy, Farmers 

2 
Union was not obligated either to indemnify or to defend the 

Kienenbergers against J.L.ls claim for damages, 

The dispositive issue on appeal is whether the District Court 

erred in finding that 15ienenbergersv insurance policy precluded 

coverage because J. 3;. s injuries were not caused by an vtoccurrencevv 

as defined in the policy. Appellants also question whether the 

District Court erred in finding that coverage was precluded by a 

clause in the policy that expressly excluded injuries caused by 

sexual molestation. We do not decide this issue because we affirm 

the District Court on the first issue. Appellants also raise 

another issue: whether negligent supervision by Jaret 

Kienenbergervs parents is an ~occurrencegl for which Farmers Union 

was obligated to provide coverage. The ~istrict Court did not 

address this issue and we will not decide it here. 

The policy provided that Farmers Union would pay damages for 

bodily injury or property damage caused by an vvoccurrence, defined 

as "an accident . . . neither expected nor intended from the 

standpoint of the insuredv1 (emphasis added). An intentional act 

cannot be an vvoccurrencevv because it is not an accident and because 

it is intended or expected by the insured. Therefore, injuries 

caused by an insured personvs intentional act are not covered. New 

Hampshire Insurance Group v. Strecker (1990), 244 Mont. 478, 481, 

798 P.2d 130, 132. 

It is undisputed that as a member of Ron Kienenbergergs 

household Jaret was an insured, and that Jaretls sexual assault of 

J.L. was intentional. Summary judgment is proper when the record 
discloses no genuine issue as to any material fact and the moving 

party is entitled to judgment as a matter of law. Rule 56(c), 

M.R.Civ.p.; also see Truck Insurance Exchange v. Waller (Mont. 

1992), 828 P.2d 1384, 1386, 49 St.Rep. 318, 319. Since it is 

undisputed that J.L.'s injuries were caused by an insured person's 

intentional act, and the insurance contract clearly and 

unambiguously excludes coverage for intentional torts, Farmers 

Union is entitled to summary judgment as a matter of law. 

AFFIRMED. 

We concur: 

Justices 

4 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur with the result of the majority opinion because I 

conclude that Jaretts conduct constituted sexual molestation and 

that damages for such conduct were specifically excluded by the 

terms of the policy. 

I dissent from the majority 's conclusion that J. L. 's injuries 

were not an occurrence within the meaning of the policy. 

J. L. Is claim against the parents is not based upon intentional conduct by the parents. It is based upon their alleged 

negligent failure to supervise their son, Jaret. Therefore, the 

authority relied upon by the majority is not on point and should 

not control the disposition of this case. 

In New Hampshire Zrtsurance Group v. Strecker ( 199 0 ) , 2 4 4 Mont . 4 78, 7 98 

P.2d 130, the insured sought coverage for his own sexual assault 

and molestation of his daughter. We held that under those 

circumstances his conduct was not an ttoccurrencett within the 

meaning of the policy because it was not an accident and because 

the consequences of his conduct were intended. 

In this case, even though the Kienenbergers are accused of 

negligently failing to supervise their son, there is no allegation, 

nor is it reasonable to conclude that by their negligent conduct 

they ever intended that their son would sexually assault J. L. or 

any other person. The circumstances in this case are much more 

similar to, and therefore, controlled by our decision in Lindsay 
Drilling and Contracting v. United States Fidelity and Guaranty Company ( 19 8 4 ) , 2 08 

Mont. 91, 676 P.2d 203. In that case, the plaintiff claimed that 

among other things, Lindsay negligently allowed its employees to 

interfere with samples taken from drilled test holes at the site of 

mining claims. USF&G insured Lindsay, and like the insurer in this 

case, sought a declaratory judgment to the effect that the conduct 

of its insured which was complained of did not fall within the 

risks covered by its policy of insurance. In that case, USF&G 

relied on the same definition of ~occurrencel~ that is found in the 

policy that we construe in this case and contended that since 

intentional conduct was the basis for the plaintiffls complaint, 

there was no occurrence within the meaning of the policy. We 

disagreed and held as follows: 

A covered occurrence, as defined in the policy, is one 

whose consequences were neither expected nor intended by 

the insured. In Northwestern Natio~zal Casualty Co. v. Phalen 

(l979), 182 Mont. 448, 597 P.2d 720, we held that an 

insurance policy with the same definition of lfoccurrencelt 

covered an intentional act whose consequences were 

neither expected nor intended. Here, the counterclaim 

alleges in part that Lindsay neqlisently allowed 

bystanders to tamper with the core samples, his 

scenario does not include intended or expected 

consequences. Therefore, the counterclaim sets forth a 

covered noccurrencew as defined in the policy, if bodily 

injury or property damage resulted, [Emphasis added.] 

Likewise, in this case, J. L. Is claim accuses Ron and Patti 

Kienenberger of negligent conduct which assumes that the 

consequences complained of were never intended nor expected by 

those insureds. She does not allege on appeal that the 
Kienenbergers' son, Jaret, is a covered insured based on his 

intentional conduct. 

The distinction that the majority is unable to make was made 

clearly by the U.S. District Court for the Southern District of 

Florida in United States Fidelity and Guaranty Company v. Toward (S . D. Fla 

1990), 734 F. Supp. 465. In that case, James and Rosario Toward 

operated a school and were insured in that business by USF&G. The 

parents of some students alleged that certain teachers at the 

school had molested their children while they were pupils at the 

school. They filed lawsuits alleging molestation. They named the 

Towards as defendants, and alleged that they had negligently hired 

and then negligently supervised employees at their school. 

A complaint for declaratory judgment was filed by USF&G to the 

effect that it had no duty to defend the Towards, based upon the 

same definition of "occurrence" that exists in this policy and that 

was found in the Lindsay policy. The district court disagreed and 

held that : 

The last part of the definition--"which results in 

bodily injury . . . neither expected nor intended from 

the standpoint of the insuredt1--also supports a finding 

of a duty to defend. This language is applicable to the 

case here because the accident, the acts of negligent 

supervision in hiring, could be the legal and proximate 

cause of the injuries of the molested children. 

Toward, 734 F. supp. at 467. 

In the Toward case, the insurer also sought to rely on prior 

case law similar to the Strecker decision relied upon by the majority 

in this case. In Landk v. Allstate Insurance Company (Fla. 1989) , 546 
So. 2d 1051, coverage was excluded for an act of child molestation. 

However, the Federal District Court for Florida distinguished Landis 

for the following reasons: 

However, this case (Landis) does not support the 

plaintiff's (USF&G) attenuated reasoning. First, the 

Florida Supreme Court was considering a homeowner's 

policy, not an explicit "public liability policy" 

covering a school explicitly. Furthermore, the Landis 

court, in pertinent part, interpreted an intentional tort 

exclusionary clause in an insurance policy. The insured was 

sued for his acts of child molestation. The issue was 

whether, under the contract language, a child molester 

can commit his misconduct without intending to injure the 

child. Indeed, the clause in the case at bar regarding 

a "bodily injury . . . neither expected nor intended from 

the standpoint of the insured" is applicable to the Landis 

analysis. The supreme court merely held that an insured 

child molester intends, as a matter of law, to harm the 

child. 

This holding is not at issue here. The state [sic] 

plaintiffs, taking their allegations as true, do not seek 

to recover from insured molesters. The allegations are 

that the named defendants allowed other parties to molest 

the children. [Underlining emphasis added.] 

Toward, 734 F. Supp. at 468. 

Likewise, plaintiff in the underlying tort action in this case 

does not seek to recover from the parents for their intentional 

conduct. The basis of her effort to recover against them is that 

they negligently allowed their son to commit a violent offense 

against plaintiff. These facts are clearly distinguishable from 

the facts in the Strecker decision. These facts are controlled by our 

decision in Lindsay. 

I would reverse the District Court's conclusion that Farmers 

had no duty to defend nor indemnify its insureds, Ron and Patti 
Kienenberger, based upon the definition of vtoccurrencetl within 

their insurance policy. 

I do conclude, however, that coverage was excluded under the 

terms of Farmers* policy based on the "sexual molestation" clause 

which excluded coverage for bodily injury arising out of sexual 

molestation. Although there are no decisions in Montana which 

specifically define sexual molestation, and even though it is not 

defined within the terms of the policy, it is clear from the use of 

that language what kinds of injury were intended to be excluded. 

Molest means to annoy, disturb, or persecute, especially with 

hostile intent or injurious effect. It is often defined as an 

annoying sexual advance. Websterts New Collegiate Dictionary 764 

(1984). 

Therefore, I conclude that the damages sustained by J. L. as 

a result of Jaret 's conduct were excluded from coverage in Farmers 

policy with the Kienenbergers. 

For these reasons, I concur with the result of the majority 

opinion, although I disagree with its rationale. 

Justice William E. Hunt, Sr., concurs in the foregoing 

concurrence and dissent of Justice Trieweiler. 
CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

John E. Seidlitz, Jr. 

Attorney at Law 

P.O. Box 1581 

Great Falls, MT 59403-1581 

Patrick F. Flaherty 

Attorney at Law 

625 Central Ave. W., #I01 

Great Falls, MT 59404 

William J. Gregoire 

Smith, Walsh, Clarke & Gregoire 

P.O. Box 2227 

Great Falls, MT 59403-2227 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA