NO. 89-590 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

NEW HAMPSHIRE INSURANCE GROUP, 

Plaintiff and Respondent, 

-vsJAKE STRECKER, 

Defendant, 

and 

K.S., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James D. Walen, Keefer, Roybal, Hanson, Stacey & 

Walen, Billings, Montana 

For Respondent: 

L.D. Nybo, Conklin, Nybo, LeVeque & Murphy, P.C., 

Great Falls, Montana 

Filed: 

Submitted on Brief: July 13, 1990 

Decided: September 13, 1990 

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

This is an appeal from the Thirteenth Judicial District Court, 

Yellowstone County. Plaintiff New Hampshire Insurance Group (New 

Hampshire) brought suit, seeking a declaratory judgment that it did 

not owe a duty to defend or indemnify its insured, defendant Jake 

Strecker (Jake) in a civil action brought by co-defendant and 

appellant K.S. for sexual molestation. The District Court found 

in New Hampshire's favor on a motion for summary judgment. K.S. 

appeals from that order. We affirm. 

The issue raised by appellant K.S. is: 

 id the District Court err by granting New Hampshire's motion 

for summary judgment, thus precluding insurance coverage? 

Jake sexually assaulted, molested and abused his daughter, 

K.S., for approximately ten years beginning when she was six years 

old. Jake testified by deposition that he did not intend to harm 

K.S. as a result of this continual sexual molestation. Jake was 

charged with and pled guilty to three counts of felony sexual 

assault. In January 1986, K.S. filed a civil action against Jake 

based on this sexual abuse seeking damages for economic losses, 

medical treatment, and emotional distress. 

Jake tendered this lawsuit to his insurer, New Hampshire, to 

defend and indemnify in the event K.S. recovered. The two policies 

in effect were a farm-ranch comprehensive general liability 

umbrella policy for Strecker Farms, Inc., which also named Jake 

Strecker individually. The general liability policy provisions 

stated that the company will pay damages for bodily injury or 

property damage caused by an lgoccurrence.l' Occurrence is defined 

as "an accident, including continuous or repeated exposure to 
conditions, which results in bodily injury or property damage 

neither expected nor intended from the standpoint of the insured." 

(Emphasis added.) The general liability extension provides that 

insurance does not apply to "personal injury . . . arising out of 

willful violation of a penal statute or ordinance committed by or 

with the knowledge or consent of the insured." The commercial 

umbrella policy covers damages for personal injury caused by an 

occurrence which is neither I1expected or intended from the 

standpoint of the insured." Personal injury includes assault and 

battery not committed by or at the direction of the insured unless 

preventing or eliminating danger to persons or property. 

Based on these clear and unambiguous policy exclusions, New 

Hampshire declined to provide a defense in the underlying lawsuit 

or to indemnify Jake for any damages which might be recovered 

against him. New Hampshire filed a declaratory judgment action in 

the District Court seeking a determination that there was no 

insurance coverage for Jake under these policies for K.S. Is 

damages. New Hampshire moved for summary judgment pursuant to Rule 

56, M.R.Civ.P. The motion was submitted to the District Court on 

a set of stipulated facts. The matter was fully briefed and argued 

by counsel for the parties. On August 18, 1989, the District Court 

entered its memorandum and order granting summary judgment in favor 

of New Hampshire. Judgment was entered accordingly from which K.S. 

now appeals. 

llOccurrencell insurance policies clarify the concept of 

llaccidentll in order to preclude coverage for harm resulting from 

intentional acts. This definition of occurrence raises the issue 

of whether Jake's sexual molestation of K.S. was intentional, 
rather than accidental, thus precluding coverage under Jake's 

insurance policy with New Hampshire. We agree with the District 

Court's finding that Jake intentionally molested K.S. 

The issue raised on appeal is whether the District Court erred 

by granting New Hampshire's motion for summary judgment. 

The standard of review is clear. Summary judgment is only 

proper under Rule 56(c), M.R.Civ.P., where the record discloses 

that no genuine issue of material fact exists and the moving party 

is entitled to judgment as a matter of law. Mutual Service Cas. 

Ins. Co. v. McGehee (1985), 219 Mont. 304, 306, 711 P.2d 826, 827. 

Under the undisputed facts of this case, as stipulated to by 

all parties, New Hampshire was entitled to summary judgment as a 

matter of law. The undisputed facts show the following: 

(1) Jake admits that he sexually molested K.S. for nearly ten 

years. In the instant case there is no evidence to show that Jake 

did not intend to sexually molest his daughter for ten years. Such 

actions are not accidental. Furthermore, Jake was not suffering 

from any mental disability. Evidence of diminished mental capacity 

might preclude the insured from forming the requisite intent to 

harm. See, e.g. , State Farm Fire & Casualty Co. v. Jenner (9th 

Cir. 1988), 856 F.2d 1359; Allstate Insurance Co. v. Gilbert (9th 

Cir. 1988), 852 F.2d 449; State Farm Fire & Casualty Co. v. Pickard 

(9th Cir. 1988), 849 F.2d 1220. Jake testified in his deposition 

that he knew he had a problem, that he needed help and that he 

might be harming K.S. Jake also pleaded guilty to three counts of 

felony sexual assault of a minor. This plea may be introduced in 

the subsequent civil action as an admission. Teitelbaum Furs, Inc. 

v. Dominion Insurance Co. (Cal. 1962), 375 P.2d 439, 441; cert. 
denied, 372 U.S. 966, 83 S.Ct. 1091, 10 L.Ed.2d 130 (1963). In 

light of these considerati'ons it would fly in the face of reason 

to hold that Jake did not intend to harm K.S. by continuing his 

course of conduct. We adopt the District Court's finding that 

Jake's actions were intentional. 

(2) This sexual abuse caused injury to K.S. 

(3) Jake's insurance policies with New Hampshire do not 

provide coverage for personal or bodily injury caused by 

intentional acts. This is not a question of contract 

interpretation. Courts have no authority to change a contract when 

its intent is clear. Courts may not disregard the express language 

of a contract. Lemley v. Bozeman Community Hotel Co. (1982), 200 

Mont. 470, 651 P.2d 979. See also 5 28-3-401, MCA. 

The insurance policies here are plain and unambiguous. The 

general liability policy provisions preclude coverage for injury 

if either of two prongs are satisfied. The first prong is 

satisfied if the injury was not caused by an accident. The second 

prong is satisfied if the injury was either expected or intended 

from the standpoint of the insured. The District Court found that 

Jake's acts of sexual molestation were intentional and we adopt 

this finding. As such, the first prong of the general liability 

policy's exclusionary clause is satisfied and coverage is 

precluded. 

Furthermore, along this same line of reasoning, we agree with 

the District Court's holding that neither the general liability 

extension nor the commercial umbrella policy provide coverage for 

harm resulting from sexual molestation. Both of these policies 

were clearly intended to deny coverage for intentional misconduct. 
Neither Jake nor New Hampshire contemplated insurance coverage for 

sexual molestation. Jake cannot insulate himself under any of 

these policies since the undisputed facts show that Jake intended 

to sexually assault K.S. We hold that there are no questions of 

fact and as a matter of law, New amps shire is entitled to judgment. 

Jake's testimony by deposition raises a factual question 

regarding his subjective intent to cause K.S. harm. Appellant 

contends that the existence of this factual question precludes 

summary judgment. We disagree. In reaching our holding we do not 

focus on Jake's subjective intent to cause harm. 

K.S. alleged theories of negligence in her underlying 

complaint, but these theories are necessarily based upon the 

numerous alleged acts of molestation which cannot be deemed 

negligent acts. Coverage is based upon the acts giving rise to the 

claims, not necessarily the language of the complaint. Burns v. 

Underwriters Adjusting Co. (1988), 234 Mont. 508, 510, 765 P.2d 

712, 713. We affirm the District Court's summary judgment in favor 

of New Hampshire. 1