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STATE FARM FIRE AND CASUALTY COMPANY

v. MARK TULLY ET AL.

(SC 19600)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued March 28—officially released August 23, 2016

Kirk D. Tavtigian, Jr., for the appellant-appellee

(defendant Child Doe).

Ron Murphy, for the appellee-appellant (named

defendant).

Jack G. Steigelfest, for the appellee in both appeals

(plaintiff).
Opinion

ROBINSON, J. The principal issue in these appeals

is whether evidence of an insured person’s voluntary

intoxication may be used, when an insurance policy

excludes coverage for intentional acts, to negate intent

and thereby establish the insurer’s duty to defend the

insured person against civil claims arising from sexual

misconduct with a minor. The plaintiff, State Farm Fire

and Casualty Company, brought this action seeking a

declaratory judgment that it owed no duty to defend

the named defendant, Mark Tully, under a homeowners

insurance policy (policy), in a separate civil action filed

on behalf of the defendant Child Doe.1 The defendants

appeal2

from the judgment of the trial court granting

the plaintiff’s motion for summary judgment on the

ground that, because the policy excluded coverage for

acts ‘‘intended’’ by the insured, Tully’s actions fell outside the scope of the policy and, thus, the plaintiff had

no duty to defend him under the presumption of intent

established in United Services Automobile Assn. v.

Marburg, 46 Conn. App. 99, 104–105, 698 A.2d 914

(1997). On appeal, the defendants claim that the trial

court improperly rendered summary judgment in favor

of the plaintiff because evidence that Tully was intoxicated at the time of the incident created a genuine

issue of material fact as to whether his actions were

intentional. Specifically, the defendants assert that evidence of voluntary intoxication may negate the intent

presumed under Marburg and thereby establish an

insurer’s duty to defend. We disagree and, accordingly,

affirm the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. On July 2, 2012, Doe and two

other girls were in the shower area of Winding Trails

Park in Farmington. At that time, Doe was fourteen

years old and the two other girls were, respectively,

thirteen and eight years old. Tully, who was fifty-six

years old and ‘‘under the influence of intoxicating

liquor,’’ approached the three girls and offered to buy

them ice cream. After the girls refused, Tully grabbed

Doe’s breast, nearly removing her bathing suit top. Tully

then fondled the buttocks of the eight year old girl in

Doe’s view.

Doe, by and through her parent as next friend, subsequently filed a civil action against Tully alleging, inter

alia, that he ‘‘negligen[tly]’’ sexually assaulted her while

he was intoxicated.3 The plaintiff had previously issued

the policy, which provided that the plaintiff would

defend Tully against claims resulting from an ‘‘occurrence,’’ which is defined in the policy as an ‘‘accident,’’

but not from claims resulting from his intentional

actions. Tully claimed coverage under the policy, based

on his intoxicated state, and requested that the plaintiff

defend him in the action.4 The plaintiff denied coverage,

however, on the ground that Doe’s claim fell within the
intentional act exclusion of the policy.

In response to this complaint, the plaintiff initiated

the present action seeking a declaratory judgment with

regard to its duty to defend Tully.5 The plaintiff moved

for summary judgment on the ground that the complaint

in the underlying action alleged an intentional act,

which fell within the policy’s intentional act exclusion

of coverage. In response, Tully submitted two affidavits,

one from a physician and one from a psychologist,

which opined that he was an alcoholic and so intoxicated on the day of the incident that he could not have

formed the requisite intent to harm Doe, as well as his

own affidavit attesting that he did—and still does—

struggle with alcoholism. The defendants argued that

this evidence raised a genuine issue of material fact as

to whether Tully’s actions were intentional.6 The trial

court rendered summary judgment in favor of the plaintiff, concluding that the plaintiff was entitled to rely on

Marburg, which established a presumption of intent in

cases involving the sexual assault of a minor. See United

Services Automobile Assn. v. Marburg, supra, 46 Conn.

App. 104. The trial court then stated, more generally,

that ‘‘voluntary intoxication does not establish a question of intent when defending against an exclusionary

clause of an insurance policy.’’ These appeals followed.

See footnote 2 of this opinion.7

On appeal, the defendants reiterate their claim that

evidence of Tully’s voluntary intoxication raises a genuine issue of material fact as to whether his actions

were intentional and, thus, fall within the intentional

act exclusion of the policy.8 The defendants first claim

that the trial court improperly applied the presumption

established in Marburg because this court overruled

that presumption in Allstate Ins. Co. v. Barron, 269

Conn. 394, 409, 848 A.2d 1165 (2004), which held that

the standard for determining whether an insured’s

intent may be negated forthe purposes of an intentional

act exclusion is whether the insured was able to understand the wrongfulness of his conduct. Thus, the defendants claim that there was a genuine issue of material

fact as to whether Tully was able to understand the

wrongfulness of his conduct as a result of his intoxication. Alternatively, should this court apply the Marburg

presumption, the defendants argue that this court

should, as a policy matter, allow evidence of voluntary

intoxication to be used to negate that intent. Lastly, the

defendants claim that the trial court improperly decided

‘‘that an insured’s intoxication can never, as a matter of

law, negate the intent required to invoke the intentional

acts exclusion.’’ (Emphasis in original.)

In response, the plaintiff contends that the trial court

properly applied the Marburg presumption and, thus,

there is no genuine issue of material fact that Tully’s

acts fell within the intentional acts exclusion. The plaintiff also argues that Barron clarified the Marburg pre-
sumption, rather than overruled it, given that the two

cases are factually distinguishable. Finally, the plaintiff

argues that this court should not allow evidence of

Tully’s voluntary intoxication to rebut the Marburg presumption, as it would be against public policy to allow

evidence of voluntary intoxication to negate intent for

the purposes of an intentional exclusion act in an insurance policy.

We agree with the plaintiff and conclude that: (1) the

Marburg presumption of intentional conduct based on

an insured’s sexual misconduct with a minor remains

good law after Barron; (2) the trial court properly

applied the Marburg presumption in the present case;

and (3) evidence of voluntary intoxication may not be

used to negate intent in duty to defend cases in which

the insured’s intent is inferred from the underlying complaint that alleges that the insured committed sexual

misconduct with a minor. We, therefore, conclude that

the plaintiff satisfied its burden of demonstrating that

no genuine issue of material fact exists insofar as the

complaint in the underlying civil action alleges intentional acts and, thus, the plaintiff has no duty to

defend Tully.

‘‘In seeking summary judgment, it is the movant who

has the burden of showing the nonexistence of any

issue of fact. The courts are in entire agreement that

the moving party for summary judgment has the burden

of showing the absence of any genuine issue as to all

the material facts, which, under applicable principles

of substantive law, entitle him to a judgment as a matter

of law. The courts hold the movant to a strict standard.

To satisfy his burden the movant must make a showing

that it is quite clear what the truth is, and that excludes

any real doubt as to the existence of any genuine issue

of material fact. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment

fail to establish that there is no genuine issue of material

fact, the nonmoving party has no obligation to submit

documents establishing the existence of such an issue.

. . . Once the moving party has met its burden, however, the opposing party must present evidence that

demonstrates the existence of some disputed factual

issue. . . . It is not enough, however, for the opposing

party merely to assert the existence of such a disputed

issue. Mere assertions of fact . . . are insufficient to

establish the existence of a material fact and, therefore,

cannot refute evidence properly presented to the court

under Practice Book [§ 17-45] . . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Allstate Ins. Co.

v. Barron, supra, 269 Conn. 405–406.

‘‘The principles governing our determination of
[whether an insurer has a duty to defend] are well

settled. [A]n insurer’s duty to defend . . . is determined by reference to the allegations contained in the

[underlying] complaint. . . . The obligation of the

insurer to defend does not depend on whether the

injured party will successfully maintain a cause of

action against the insured but on whether he has, in

his complaint, stated facts which bring the injury within

the coverage. If the latter situation prevails, the policy

requires the insurer to defend, irrespective of the

insured’s ultimate liability. . . . It necessarily follows

that the insurer’s duty to defend is measured by the

allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage

of the policy, the insurer must defend. . . . Indeed, [i]f

an allegation of the complaint falls even possibly within

the coverage, then the insurance company must defend

the insured. . . . On the other hand, if the complaint

alleges a liability which the policy does not cover, the

insurer is not required to defend.’’ (Citations omitted;

internal quotation marks omitted.) Community Action

for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398–99, 757 A.2d 1074

(2000).

Specifically, ‘‘[w]here . . . the policy excludes coverage for damages resulting from intentional acts, the

court examines the factual allegations to decide

whether both intentional acts and intended results are

present.’’ Middlesex Ins. Co. v. Mara, 699 F. Supp. 2d

439, 449 (D. Conn. 2010). ‘‘Moreover . . . Connecticut

courts have long eschewed the notion that pleadings

should be read in a hypertechnical manner. . . . They

thus read the complaint in a manner that advances

substantial justice, construing it reasonably to contain

all that it may fairly mean.’’ (Citation omitted; internal

quotation marks omitted.) Id., 450. ‘‘The result is that

even when an action is [pleaded] as an unintentional

tort [such as negligence], the court examines the alleged

activities in the complaint to determine whether the

insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the

action, the court holds the action to be outside the

coverage of the policy.’’ Id.

‘‘Furthermore, harmful intent may be inferred at law

in circumstances where the alleged behavior in the

underlying action is so inherently harmful that the

resulting damage is unarguably foreseeable.’’ Id. ‘‘Case

law is clear that where the provisions in the insurance

policy expressly exempt intentional acts of an insured

from coverage, the court will grant summary judgment

in favor of the insurer who relies upon such exemption.’’

Id., 450–51; see also United Services Automobile Assn.

v. Marburg, supra, 46 Conn. App. 104. When an insurer

relies on an exclusionary clause to deny coverage, the

initial burden is on the insurer to demonstrate that

all the allegations within the complaint fall completely
within the exclusion. Community Action for Greater

Middlesex County, Inc. v. American Alliance Ins. Co.,

supra, 254 Conn. 398–99. If the complaint alleges liability thatfalls completely within the exclusion,the insurer

is not required to defend. Id., 399.

The plaintiff argues that Tully’s intent may be presumed in this case as a matter of law under Marburg

because the complaint in the underlying civil action

alleged sexual misconduct with a minor. This requires

us to consider the defendants’ argument that intent may

not be presumed because Allstate Ins. Co. v. Barron,

supra, 269 Conn. 394, overruled the Marburg presumption.

In United Services Automobile Assn. v. Marburg,

supra, 46 Conn. App. 100–101, our Appellate Court considered whether an insurer had a duty to defend the

defendant, Bonita Marburg, a woman accused of sexually abusing a minor during tutoring sessions. In its

motion for summary judgment, the insurer argued that

no genuine issue of material fact existed as to whether

the allegations fell within the homeowners insurance

policy’s ‘‘ ‘expected-or-intended injury’ ’’ exclusion. Id.,

102. The minor and his mother alleged, however, that

Marburg’s sexual misconduct was a result of a mental

disease or defect that negated her intent to harm the

minor. Id., 103. The Appellate Court, following an American Law Reports annotation,recognized a presumption

of intent for acts of sexual molestation of minors

because that act itself is ‘‘so heinous that intent to cause

harm is presumed as a matter of law.’’ Id., 104, citing

annot., 31 A.L.R.4th 957, § 5 (b)(1984); see, e.g., Gearing

v. Nationwide Ins. Co., 76 Ohio St. 3d 34, 37, 665 N.E.2d

1115 (1996)(observing that, by ‘‘1993, the inferred intent

standard in cases of sexual molestation of a minor was

characterized as the unanimous rule,’’ and that minority

approach of considering subjective intent has ‘‘largely

been abandoned, having been criticized as logically

untenable’’ [internal quotation marks omitted]); see also

Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 390, 788

P.2d 121 (App. 1989) (concluding that public policy

supports presuming intent to injure with respect to

sexual abuse of minors because such acts are not performed under any claim of right or privilege under law,

and are in fact crimes); Horace Mann Ins. Co. v. Leeber,

180 W. Va. 375, 380–81, 376 S.E.2d 581 (1988) (observing

that presumption of intent was supported by doctrine

ofreasonable expectations with respect to policyholder

and homeowners insurance carrier).

Applying this presumption and relying on the standard set out in Home Ins. Co. v. Aetna Life & Casualty

Co., 35 Conn. App. 94, 644 A.2d 933 (1994), rev’d on

other grounds, 235 Conn. 185, 663 A.2d 1001 (1995),

the Appellate Court then reasoned that, ‘‘[a]n insured’s

conduct can be considered unintentional in situations

such as those here only if the insured can produce
evidence to show that she did not intend to cause the

damage. . . . If the insured cannot show that her

behavior was unintentional, the presumption of intent

remains intact, and the exclusion of the homeowners

policy precludes coverage.’’ (Citation omitted.) United

Services Automobile Assn. v. Marburg, supra, 46 Conn.

App. 104–105. The Appellate Court then analyzed the

evidence that Marburg provided to rebut the presumption—namely, an affidavit and letter from two physicians describing her mental condition—to determine

whether a material issue of fact was in dispute regarding

Marburg’s ability to form intent. Id., 106–107. Ultimately, the Appellate Court held that the affidavits demonstrated that no genuine issue of material fact existed

and, thus, summary judgment was appropriate. Id.,

110–11.

Several years later, we decided Allstate Ins. Co. v.

Barron, supra, 269 Conn. 407, a case in which the underlying complaint leading to the insurance coverage dispute alleged, inter alia, that a mother stabbed her

husband and one of her children, poured gasoline on

herself and the child, and then set fire to the house.

The underlying complaint also alleged that, ‘‘at the time

of these events, [the mother] was suffering from a mental illness or impairment that rendered her incapable

either of appreciating the nature, consequences and

wrongfulness of her conduct or controlling her actions

or both.’’ Id. Specifically, the mother had been diagnosed with postpartum depression, recurrent major

depression, and bipolar disorder. Id., 411.

In Barron, this court adopted the holding from Home

Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn.

App. 94, which was also applied in United Services

Automobile Assn. v. Marburg, supra, 46 Conn. App.

104–107, namely, that ‘‘an insured’s intent to commit

an act may be negated for purposes of an intentional

conduct exclusion clause when the insured did not

understand the nature or wrongfulness of his conduct,

or was deprived of the capacity to control his actions

regardless of his understanding of the nature or wrongfulness of his action.’’ (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, supra, 269 Conn. 407.

We, therefore, determined that the dispositive issue was

‘‘not whether [the mother’s] actions were intentional in

the narrow sense that they were deliberate, but whether

her intent was negated by her inability to understand

the wrongfulness of her conduct or to control her conduct.’’ Id., 409. Ultimately, this court concluded that,

‘‘[t]he documents submitted by the plaintiff in support

of its motion for summary judgment simply did not

address that issue.’’ Id.

We conclude that Barron is inapposite to the present

case and does not affect the continuing vitality of the

Marburg presumption. First, the allegations in the

underlying complaint in Barron did not concern sexual
misconduct with a minor child. Second, the legal propriety of the Marburg presumption was not at question

in Barron. Rather, Marburg and Barron are both cases

in which our courts have adopted and applied the standard set forth in Home Ins. Co. v. Aetna Life & Casualty

Co., supra, 35 Conn. App. 94, to determine whether an

insured adduced evidence sufficient to defeat summary

judgment as to whether mental incapacity rendered the

relevant actions unintentional underthe intentional acts

exclusion clause of an insurance policy. Barron cited

to Marburg as a situation in which an insurer had satisfied its burden of demonstrating that no genuine issue

of material fact existed with regard to whether the

underlying allegations fell completely within the insurance policy’s intentional acts exclusion clause, and the

insured subsequently failed to proffer sufficient evidence to allow for an inference that the insured was

incapable of forming the intent necessary to result in

her acts being intentional. Allstate Ins. Co. v. Barron,

supra, 269 Conn. 412. In Barron, because there was no

claim that the allegations gave rise to a presumption

of intent as a matter of law, the insurer had an initially

greater burden to demonstrate that there was no genuine issue of material fact on summary judgment than

in cases, such as the present one, in which an insurer

may rely on a presumption of intent to satisfy its burden

on summary judgment. The insurerin Barron ultimately

had to demonstrate that, despite the allegations within

the complaint that the mother suffered from mental

disease at the time of the incident, she nevertheless

formed the requisite intent to commit the acts, that

her acts were intentional, and that the allegations fell

completely within the intentional acts exclusion of the

policy. Thus, Barron did not overrule the Marburg presumption; rather, Barron clarified the standard for

determining whether an insured sufficiently has

negated intent in order to defeat summary judgment in

favor of the insurer.

Tully also argues in his brief that the Marburg presumption should not apply in the present case because

the underlying facts in that case are too dissimilar,

insofar as Marburg concerned allegations of sexual

assault, including penetrative intercourse, on at least

seventy-three occasions. See United Services Automobile Assn. v. Marburg, supra, 46 Conn. App. 101. We

disagree. In Marburg, our Appellate Court, in presuming

intent to harm as a matter of law when an insured has

engaged in sexual misconduct with a minor, did not

consider any restrictions on the type or manner of sexual assault of a minor by an adult. Id., 104–106. This

was for good reason. As the Maryland Court of Appeals

observed in rejecting an argument that the presumption

is inapplicable in a case without a ‘‘ ‘violent’ ’’ sexual

assault, minor victims of sexual abuse are unable to

consent as matter of law, and ‘‘[c]hild sexual abuse is

an affront to the dignity of the child—an invasion of
the child’s autonomy—because a child cannot appreciate or comprehend the full nature of the sexual acts.

. . . While it is undoubtedly worse to couple sexual

molestation of a child with physical injury, such a distinction differs in degree, not in kind. The essence of

child sexual abuse is the violation of the dignitary interest, whether there is physical injury or not.’’ (Citation

omitted.) Pettit v. Erie Ins. Exchange, 349 Md. 777,

783–84, 709 A.2d 1287 (1998). Put differently, the very

nature of the act of sexual abuse of minors, ‘‘inevitabl[y]’’ causes injury extending to ‘‘emotional harm to

minors from sexual abuse in all forms’’; Maryland

Casualty Co. v. Havey, 887 F. Supp. 195, 198 (C.D. Ill.

1995); regardless of whether the abuser subjectively

meant no harm from his actions, and the abuse was

not violent in nature. See, e.g., Allstate Ins. Co. v.

Troelstrup, 789 P.2d 415, 419–20 (Colo. 1990) (rejecting

claim that inference should not apply because abuse

was not ‘‘ ‘extreme’ enough to warrant such a result’’);

Scudder v. Hanover Ins. Co., 201 Ill. App. 3d 921, 929,

559 N.E.2d 559 (1990) (presumption of intent applies

to fondling of minor’s genitals because of emotional

harm, despite lack of force); Pettit v. Erie Ins.

Exchange, supra, 783–87 (presumption applies in case

of fondling of minors’ genitalia by diagnosed pedophile

who subjectively meant no harm and believed his acts

were expression of love); Gearing v. Nationwide Ins.

Co., supra, 76 Ohio St. 3d 40 (concluding that presumption applied in cases of ‘‘criminal sexual touching’’ of

children and holding that ‘‘[b]ecause harm is inherent

in the act of sexual molestation, [insured’s] representations that he was subjectively ignorant of the fact that

his actions would harm his victims were insufficient to

raise a genuine issue of material fact’’); Horace Mann

Ins. Co. v. Leeber, supra, 180 W. Va. 379–81 (rejecting

insured’s reliance on ‘‘ ‘negligent’ seduction’’ in holding

presumption applicable to nonviolent fondling of

minor’s genitalia). Accordingly, we conclude that the

Marburg presumption is applicable in the present case,

despite the fact that the sexual abuse in Marburg was

far more severe than that alleged in the underlying complaint.9

Because we conclude that the Marburg presumption

remains good law and is applicable in the present case,

we now consider the terms of the policy, which

excluded coverage for ‘‘bodily injury . . . which is

either expected or intended by the insured,’’ in light of

the allegations contained within the complaint in the

underlying civil action. Specifically, we seek to determine whether the allegations of Tully’s sexual misconduct with a minortriggerthe Marburg presumption and,

as a result, fall completely within the policy’s intentional

acts exclusion. The complaint in the underlying civil

action alleges that Tully, in an intoxicated state, grabbed

Doe’s breast and fondled the buttocks of an eight year

old child. The complaint then characterizes these allega-
tions as negligence. The complaint alleges that Doe’s

injuries ‘‘were caused by [Tully’s] negligence . . . in

that [he] was under the influence of intoxicating liquor

when he committed these actions.’’ The complaint further alleges that ‘‘[a]s a result of [Tully’s] negligence and

carelessness, [Doe] has suffered bodily and emotional

injuries, and has been severely and permanently

injured.’’

Construing the relevant pleadings ‘‘broadly,’’ ‘‘realistically’’ and ‘‘reasonably, to contain all that it fairly

means,’’ but not ‘‘contorted in such a way so as to strain

the bounds of rational comprehension’’; Deming v.

Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905

A.2d 623 (2006); we conclude that the complaint in the

underlying civil action alleged that Tully engaged in

sexual misconduct with a minor. That complaint, therefore, alleges presumptively intentional conduct on the

part of Tully. First, the complaint alleges that Tully

attempted to lure the minor girls by offering to buy

them ice cream. The complaint then alleges that Tully

grabbed Doe’s breast, almost removing her bathing suit

top, and fondled the buttocks of an eight year girl.

Marburg aside, to read these allegations as anything

other than sexual misconduct with a minor would be

to ‘‘strain the bounds of rational comprehension.’’ Id.

Although the defendants contend that the allegations

arise from negligence,ratherthan deliberate sexual misconduct with a minor, we are not persuaded. ‘‘[E]ven

when an action is [pleaded] as an unintentional tort

[such as negligence], the court examines the alleged

activities in the complaint to determine whether the

insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the

action, the court holds the action to be outside the

coverage of the policy.’’ (Internal quotations marks

omitted.) Middlesex Ins. Co. v. Mara, supra, 699 F.

Supp. 2d 450. Nothing aboutthe allegations in the underlying civil action involve a negligent act. That complaint

does not, for example, allege that Tully was so intoxicated that he drunkenly fell down and accidentally

touched Doe’s breast. Rather, the complaint alleges that

Tully ‘‘proceeded to grab [Doe’s] breast, almost completely removing her bathing suit in the process’’ and

‘‘then proceeded to fondle the buttocks of the [eight]

year old girl . . . .’’ Because the complaint in the underlying civil action alleges deliberate sexual misconduct

with a minor, we, therefore, conclude that the trial court

properly allowed the plaintiff to rely on the Marburg

presumption of intent in satisfying its initial burden on

summary judgment.10

Because the Marburg presumption of intent is rebuttable, next we turn to the question of whetherthe defendants have adduced evidence sufficient to raise a

genuine issue of material fact as to Tully’s intent. See

United Services Automobile Assn. v. Marburg, supra,
46 Conn. App. 104–106. To rebut the Marburg presumption, the defendants claim that this court should consider evidence of voluntary intoxication, such as

affidavits from physicians or Tully himself, to negate

intent. See footnote 6 of this opinion. The plaintiff

argues in response that evidence of voluntary intoxication should not be considered to negate Tully’s intent.

We agree with the plaintiff, and conclude that evidence

of voluntary intoxication may not be used to negate

intent in situations, as here, in which the defendants

seek insurance coverage for a claim arising out of Tully’s sexual misconduct with a minor.

This court has not considered previously whether

evidence of voluntary intoxication may negate intent

in the context of insurance claims arising from sexual

misconduct with a minor. This also is a relatively novel

issue for the country as a whole. In Wiley v. State Farm

Fire & Casualty Co., 995 F.2d 457, 465–66 (3d Cir. 1993),

the United States Court of Appeals for the Third Circuit

described, generally, the three approaches courts

across the country have taken to resolve this policy

issue.

Under the first approach, intent is inferred based on

the nature and character of the act, and the insured’s

subjective intent to harm is ‘‘wholly irrelevant.’’ Id., 465.

Under this approach, ‘‘any question of the inability to

form the intent to harm, whether it arises out of alleged

mental disease or defect or voluntary intoxication, is

immaterial in resolving the insurer’s obligation to provide coverage.’’ (Emphasis added.) Id. Put another way,

in cases in which intent is inferred, the inference is

conclusive, and an insured may not rebut that presumption with evidence of lack of capacity to form the requisite intent for the acts to be considered ‘‘intentional.’’

See, e.g., State Farm Fire & Casualty Co. v. Estate of

Jenner, 874 F.2d 604, 606–607 (9th Cir. 1989); Mutual

Fire Ins. Co. v. Hancock, 634 A.2d 1312, 1313 (Me. 1993);

American Family Mutual Ins. Co. v. Peterson, 405

N.W.2d 418, 422 (Minn. 1987); Public Employees Mutual

Ins. Co. v. Rash, 48 Wn. App. 701, 705, 740 P.2d 370

(1987); N.N. v. Moraine Mutual Ins. Co., 153 Wis. 2d

84, 96, 450 N.W.2d 445 (1990).

Under the second approach, regardless of the character of the act, an insured is precluded entirely from

asserting voluntary intoxication as a defense to an intentional acts exclusion in an insurance policy in any duty

to defend case. Wiley v. State Farm Fire & Casualty

Co., supra, 995 F.2d 465–66. The reasoning is that ‘‘evidence establishing that the insured was under the influence of intoxicants is of no consequence, for the law

must not permit the use of such stimuli to become a

defense for one’s actions.’’ (Internal quotation marks

omitted.) Id., 465 Essentially, voluntarily becoming

intoxicated should not excuse poor behavior or judgment exercised while intoxicated under any set of facts.
See, e.g., Capitol Indemnity Corp. v. Evolution, Inc.,

293 F. Supp. 2d 1067, 1074 (D.N.D. 2003); Allstate Ins.

Co. v. Sherrill, 566 F. Supp. 1286, 1288 (E.D. Mich.

1983), aff’d, 735 F.2d 1363 (6th Cir. 1984); Prasad v.

Allstate Ins. Co., 644 So. 2d 992, 994–95 (Fla. 1994);

Dolan v. State Farm Fire & Casualty Co., 573 N.W.2d

254, 257 (Iowa 1998); Group Ins. Co. of Michigan v.

Czopek, 440 Mich. 590, 600–601, 489 N.W.2d 444 (1992);

Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285, 289

(Mo. App. 1979); Beckwith v. State Farm Fire & Casualty Co., 120 Nev. 23, 27, 83 P.3d 275 (2007).

The third approach deems it appropriate for only a

fact finder to consider and determine the insured’s

intent when an insured claims incapacity to form the

requisite intent. Wiley v. State Farm Fire & Casualty

Co., supra, 995 F.2d 466. Importantly, under this

approach, even in situations in which intentis otherwise

presumed, ‘‘this factual inquiry in effect supersedes

scrutiny of the nature and character of the act committed and renders application of the inferred intent rule

inappropriate.’’ Id.; see, e.g., Globe American Casualty

Co. v. Lyons, 131 Ariz. 337, 339–40, 641 P.2d 251 (App.

1981); State Farm Fire & Casualty Co. v. Morgan, 258

Ga. 276, 276–77, 368 S.E.2d 509 (1988); Hanover Ins.

Co. v. Talhouni, 413 Mass. 781, 785–86, 604 N.E.2d 689

(1992); Burd v. Sussex, 56 N.J. 383, 398–99, 267 A.2d

7 (1970).

We adopt the second approach, and conclude that,

as a matter of law, evidence of voluntary intoxication11

may not be used to negate intent for the purposes of

determining whether an insurer owes a duty to defend

an insured in cases in which the insured’s intent is

presumed because the conduct in question involved

sexual misconduct with a minor. Under the second

approach, evidence of voluntary intoxication may

never, in any case, serve to negate intent for insurance

purposes. Wiley v. State Farm Fire & Casualty Co.,

supra, 995 F.2d 465. For a variety of public policy considerations, we conclude the second approach is persuasive in the context of sexual misconduct with a

minor, even without considering whether it extends to

other acts.

The first policy consideration for holding that voluntary intoxication should not operate to negate intent is

not to relieve the insured of responsibility, financial

and otherwise, for his otherwise intentional actions.

One federal court, applying Michigan state law, stated

that, ‘‘public policy demands that a voluntary departure

of one’s good judgment and rational decision-making

abilities should not permit the insured to abrogate his

financial responsibility to those he brutally injures.’’

Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp. 1288.

Further, permitting voluntary intoxication to negate

intent ‘‘would allow commission of a crime without the

requisite responsibility’’ and would ‘‘create the ability
to act unwisely without the requisite financial responsibility.’’ Group Ins. Co. of Michigan v. Czopek, supra,

440 Mich. 601.

Another policy consideration in support of our conclusion that evidence of voluntary intoxication may not

negate intent is that, even though a person is intoxicated

at the time, the conduct is such that a reasonable

insured would not expect it to fall within his policy

coverage. See American Family Mutual Ins. Co. v.

Peterson, supra, 405 N.W.2d 422 (voluntary intoxication

did not negate intent when man struck woman on head

with hammer because reasonable insured would not

expect that type of assault to be covered); see also

Dolan v. State Farm Fire & Casualty Co., supra, 573

N.W.2d 257 (insured cannot claim that intentional

assault was unexpected or unintended for purpose of

insurance coverage).

Finally, in determining whether evidence of voluntary

intoxication should negate intent, some state courts

have looked to their state’s criminal statutes to determine, as an expression of public policy, whether the

legislature would have intended for evidence of voluntary intoxication to negate intent in duty to defend

cases. For example, in Michigan, the state’s legislators

had ‘‘distinguishe[d] between a lack of mental capacity

due to mental illness and that which results from acute

voluntary alcohol or drug intoxication. In the latter situation, even though a criminal defendant’s freedom and

liberty [were] at stake, a defense of voluntary intoxication [could] not be tendered. To allow such a defense

would create an intolerable precedent of self-immunity.’’ Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp.

1288. The court then applied that distinction to the

insurance context, holding that, ‘‘where an insured voluntarily ingests alcohol or drugs he may not assert a

defense to an exclusionary clause . . . based on his

lack of capacity to form the intent to act or harm, where

that defense is based solely on the effects of the alcohol

and/or drugs.’’12 Id.

We find these policy rationales that hold the insured

responsible for his intentional actions to be consistent

with existing Connecticut statutes and case law. Turning first to our own criminal statutes, we find support

in General Statutes § 53a-7.13 That statute expressly provides that, ‘‘[i]ntoxication shall not be a defense to a

criminal charge . . . if the actor, due to self-induced

intoxication, is unaware . . . such unawareness, disregard or failure to perceive shall be immaterial.’’

(Emphasis added.) General Statutes § 53a-7. Further,

the official comment following § 53a-7 states that,

‘‘where the [criminal] offense is based on recklessness

or criminal negligence, unawareness of the actor due

to self-induced intoxication does not excuse him. For

example, a defendant charged with criminally negligent

homicide cannot argue that he was too intoxicated to be
aware of the risks involved in his conduct and therefore

should not be held liable for his unawareness.’’ Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-7 (West 2012),

commission comment. Thus, the statutory language

expressly provides that voluntary intoxication does not

excuse a defendant from liability for criminal negligence.

We find further legislative support for precluding evidence of voluntary intoxication from negating intent in

the insurance context in situations involving the

insured’s sexual misconduct with a minor within General Statutes § 53a-13,14 the mental capacity affirmative

defense statute. Section 53a-13 expressly precludes voluntary intoxication as a lack of mental capacity defense.

Because our legislature specifically precluded voluntary intoxication as a lack of mental capacity defense

in the criminal context, we extend that statement of

public policy to the insurance context, in which the

insured’s money, rather than his freedom, is at stake.

See Allstate Ins. Co. v. Sherrill, supra, 566 F. Supp.

1288 (extending legislature’s distinction between lack

of mental capacity and acute voluntary intoxication in

criminal context to civil insurance context).

Finally, the second approach set forth in Wiley is

consistent with our holding and analysis in Barron.

Unlike the first approach, which serves as a total bar

precluding an insured from presenting any evidence of

any lack of capacity defenses, including evidence of

mental disease or defect, in cases in which intent is

inferred based on the nature of the act, the second

approach allows an insured to present evidence of mental disease or defect, aside from evidence of voluntary

intoxication, to negate intent in the insurance context.

Thus, we conclude that the second approach is consistent with our case law that allows evidence of mental

disease or defect to negate intent.15 See, e.g., Allstate

Ins.Co. v. Barron, supra, 269Conn. 408–13 (considering

extrinsic evidence to determine whetherinsured lacked

mental capacity to negate intent); United Services Automobile Assn. v. Marburg, supra, 46 Conn. App. 107–10

(allowing insured to provide affidavits to demonstrate

lack of capacity to negate intent, but ultimately finding

that evidence was insufficient).

The defendants, however, claim that precluding voluntary intoxication from negating intent would undermine the ability of victims to receive compensation

from an insurance company in an automobile accident

involving driving under the influence. We disagree.

Comparing the situation at hand to an accident involving an intoxicated driver is akin to comparing apples

and oranges. In such an accident, a driver voluntarily

consumes alcohol, gets behind the wheel of a vehicle,

and then accidentally injures another driver or pedestrian on the road. In that situation, an insurance com-
pany would have a duty to defend the intoxicated driver

because the injury of the other person was unintentional, however foreseeable.

Here, however, Tully voluntarily consumed alcohol,

went to a local park, attempted to lure children, grabbed

one child’s breast, and fondled the buttocks of another.

The act of sexual molestation of minors was not unintentional or accidental. The situation at hand is more

similar to a scenario in which a driver voluntarily consumes alcohol, gets behind the wheel of a car, sees a

pedestrian in the road and then intentionally hits the

person with his vehicle. In that situation, the driver’s

act of injuring the pedestrian was intentional, despite

the driver’s voluntary intoxication, which lowered his

inhibition.

Accordingly, we conclude that evidence of voluntary

intoxication may not negate intent in duty to defend

cases in which the insured’s intent is inferred from an

underlying complaint that alleges the insured committed sexual misconduct with a minor.16 Applying this rule

to the present case, the trial court properly granted the

plaintiff’s motion for summary judgment because the

defendants failed, as a matter of law, to rebut the presumption of intent based on Tully’s sexual misconduct

with a minor.17

The judgment is affirmed.

In this opinion the other justices concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to identify the victims or others through whom the victims’ identities may

be ascertained. See General Statutes § 54-86e.

2 Doe appealed, and Tully cross appealed, from the judgment of the trial

court to the Appellate Court, and we transferred the appeal and the cross

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-2.

3 Tully also was arrested and charged with various criminal offenses. He

entered a plea of nolo contendere to sexual assault in the fourth degree in

violation of General Statutes § 53a-73a (a) (2), unlawful restraint in the

second degree in violation of General Statutes § 53a-96, and risk of injury

to a child in violation of General Statutes § 53-21 (a) (1). He was sentenced

to ten years imprisonment, execution suspended after thirty months, and

five years of probation.

4 The complaint in the underlying civil action was later amended to allege

a single negligence claim against Tully.

5 The plaintiff also sought a determination as to whether it owed a duty

to indemnify Tully. The trial court did not decide that issue, however, as it

determined that the plaintiff did not have a duty to defend Tully. See DaCruz

v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004)

(‘‘[b]ecause the duty to defend is significantly broader than the duty to

indemnify, where there is no duty to defend, there is no duty to indemnify’’

[internal quotation marks omitted]).

6 To rebut the presumption of intent, Tully offered affidavits from a

licensed physician and a licensed psychologist describing his intoxication

at the time of the incident and his alcoholism. First, Tully attached an

affidavit from a licensed physician, who averred that ‘‘Tully’s level of intoxication at the time of the incident was such that it is unlikely he would have

maintained the capacity to form intent or to act with an expectation to

cause harm or bodily injury.’’ Second, Tully attached the affidavit of a

licensed psychologist who conducted a psychological evaluation and sex

offender risk assessment on Tully and stated that his ‘‘conduct on [July 2,

2012] was the result of excessive alcohol consumption due to his alcohol

dependence and . . . that it is unlikely he would have had the intent or
expectation to cause harm or bodily injury . . . before or during the incident

at issue.’’ Finally, Tully provided his own affidavit in which he stated that

he is an alcoholic and was one at the time of the incident. He also attested

that he did not ‘‘recall the events of [July 2, 2012] other than drinking alcohol

before going to Winding Trails [Park], drinking alcohol while at Winding

Trails [Park], and then being arrested.’’ Tully also stated that he did not

intend to cause harm to anyone.

7 We note that, six days before we transferred the appeal to this court,

the trial court, Peck, J., rendered judgment by stipulation in the underlying

civil action in favor of Doe in the amount of $90,000. This stipulation was

entered pursuant to an agreement between the parties in that case. Although

the underlying civil action has settled, the defendants are not precluded

from pursuing the present appeals. ‘‘If the insurer declines to provide its

insured with a defense and is subsequently found to have breached its duty

to do so, it bears the consequences of its decision, including the payment

of any reasonable settlement agreed to by the plaintiff and the insured, and

the costs incurred effectuating the settlement up to the limits of the policy.’’

Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760,

806, 67 A.3d 961 (2013).

8 The plaintiff also denied coverage on the ground that Doe’s complaint

failed to allege an ‘‘ ‘occurrence’ ’’ under the policy, defined as an ‘‘ ‘accident,’ ’’ claiming that it had no duty to defend Tully because his actions did

not fall within the scope of the policy. ‘‘A typical definition of the term

‘accident’ is ‘a lack of intention or necessity, often opposed to design; an

unforeseen unplanned event; [a] sudden event or change occurring without

intent or volition . . . and producing an unfortunate result.’ . . . In short,

the relevant inquiry in determining whether an accident has occurred is

whether the injuries at issue were caused by the intentional design of the

insured, or rather, by a sudden, unforeseen event.’’ (Citations omitted.)

Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 594, 966 A.2d 672

(2009). Although this court has sometimes treated the analyses of whether

an act constitutes an ‘‘occurrence,’’ defined as an ‘‘accident,’’ and whether

the act falls within the intentional act exclusion separately; see, e.g., id.,

597; the ultimate inquiry—whether the act was intentional—is the same.

We therefore need not conduct a separate analysis as to whether Tully’s

actions constitute an ‘‘occurrence.’’ See also Allstate Ins. Co. v. Suchecki,

United States District Court, Docket No. 3:12CV01566 (VLB)(D. Conn. February 20, 2014) (concluding that act did not meet definition of ‘‘ ‘occurrence’ ’’

under insurance policy, and also that act fell within intentional act exclusion

of policy ‘‘for the same reasons’’).

9 We note that neither of the defendants has asked us to overrule Marburg

on the ground that the presumption of intent established in that case is

doctrinally unsound as a general proposition. Although there was, at one

point, a split of authority as to whether a presumption of intent to harm

could be inferred as a matter of law in cases concerning the sexual abuse

of minors by adults, with the vast majority of state courts adopting the

inference, we note that ‘‘the supreme courts of the other four states that

previously followed the minority approach have all now adopted the majority

approach.’’ State Farm Fire & Casualty Co. v. Davis, 612 So. 2d 458, 464

(Ala. 1993); see Gearing v. Nationwide Ins. Co., supra, 76 Ohio St. 3d 37

(describing inferred intent in cases concerning sexual abuse of minors as

‘‘unanimous rule’’ by 1993); see also Pettit v. Erie Ins. Exchange, supra,

349 Md. 788 and n.5 (discussing resolution of split).

Similarly, neither of the defendants claim that the inferred intent rule is

inapplicable on the ground that the girls were not minors, or even that Tully

was subjectively unaware of their ages, when he acted in this case. See

Allstate Ins. Co. v. Patterson, 904 F. Supp. 1270, 1282 n.11 (D. Utah 1995)

(discussing split of authority with respect to whether inferred intent rule

applies when victim is adult); see also Northern Security Ins. Co. v. Perron,

172 Vt. 204, 214–15, 777 A.2d 151 (2001) (discussing split of authority with

respect to whether inferred intent rule should apply when perpetrator is

minor, rather than adult).

10 The defendants also argue that the initial burden was on the plaintiff,

as the party seeking summary judgment, to establish the absence of any

genuine issue as to Tully’s mental condition. We disagree. The initial burden

is on the plaintiff to establish that there are no genuine issues of material

fact as to whether the allegations fall entirely within the policy exclusion.

See, e.g., Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 398–99. Because the complaint in

the underlying civil action alleges sexual misconduct with a minor, thus
triggering the Marburg presumption, the plaintiff satisfied its burden, and

the burden then shifted to the defendants to establish that his actions were

not intentional, based on the standard set forth in Allstate Ins. Co. v. Barron,

supra, 269 Conn. 407–406. See United Services Automobile Assn. v. Marburg,

supra, 46 Conn. App. 106.

11 The defendants claim that the plaintiff failed to establish that Tully’s

intoxication was voluntary rather than involuntary and, thus, there was a

genuine issue of material fact that should have defeated the plaintiff’s motion

for summary judgment as to whether the plaintiff had a duty to defend him.

They further claim that the affidavits they submitted support the proposition

that his intoxication was involuntary because of his alcoholism. We disagree.

First, the insurer’s burden of proof on a motion for summary judgment

is to establish that no genuine issue of material fact exists as to its duty to

defend. Community Action for Greater Middlesex County,Inc. v. American

Alliance Ins. Co., supra, 254 Conn. 397–98. To do so, the insurer must

compare the policy terms with the four corners of the complaint. Id., 398–99.

Involuntary intoxication is ‘‘a very rare thing, and can never exist where

the person intoxicated knows what he or she is drinking, and drinks the

intoxicant voluntarily, and without being made to do so by force or coercion.’’

2 Criminal Practice Manual § 40:2 (West 2016). The complaint in the underlying civil action did not allege that Tully’s intoxication was involuntary.

Rather, it alleged that Tully ‘‘approached [Doe] and her friends while he

was in an intoxicated state,’’ and that Tully ‘‘was under the influence of

intoxicating liquor when he committed these actions.’’ On the basis of a

reasonable reading of the allegations in a manner not to distort rational

comprehension; see, e.g., Deming v. Nationwide Mutual Ins. Co., supra,

279 Conn. 778; we do not read the complaint in the underlying civil action

to give rise to a genuine issue of material fact as to whether Tully’s intoxication was voluntary or involuntary.

12 On the other hand, the most common policy rationale for allowing

evidence of voluntary intoxication to negate intent—and leaving that question for the fact finder to decide—is the public interest in compensating

victims. See, e.g., Hanover Ins. Co. v. Talhouni, supra, 413 Mass. 786 (citing

‘‘public interest that the victim be compensated, and the view that the victim

is aided by the narrowest view of the policy exclusion’’ [internal quotation

marks omitted]); Burd v. Sussex, supra, 56 N.J. 398–99 (citing public interest

‘‘that the victim be compensated, and the victim’s rights being derivative

from the insured’s, the victim is aided by the narrowest view of the policy

exclusion consistent with the purpose of not encouraging an intentional

attack’’). Although a policy interest in compensating victims exists, that

interest must be balanced by the fact that insurance policyholders share a

risk, as reflected by the cost of premiums. As the Ohio Supreme Court

has aptly observed, ‘‘requiring an insurer to indemnify an insured who has

engaged in sexual abuse of a child subsidizes the episodes of child sexual

abuse of which its victims complain, at the ultimate expense of otherinsureds

to whom the added costs of indemnifying child molesters will be passed,’’

and ‘‘the average person purchasing homeowners insurance would cringe

at the very suggestion that he was paying for such coverage . . . [a]nd

certainly . . . would not want to share that type of risk with other homeowners [policyholders].’’ (Internal quotation marks omitted.) Gearing v.

Nationwide Ins. Co., supra, 76 Ohio St. 3d 39.

13 General Statutes § 53a-7 provides: ‘‘Intoxication shall not be a defense

to a criminal charge, but in any prosecution for an offense evidence of

intoxication of the defendant may be offered by the defendant whenever

it is relevant to negate an element of the crime charged, provided when

recklessness or criminal negligence is an element of the crime charged, if

the actor, due to self-induced intoxication, is unaware of or disregards or

fails to perceive a risk which he would have been aware of had he not been

intoxicated, such unawareness, disregard or failure to perceive shall be

immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of

substances into the body.’’ (Emphasis added.)

14 General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at

the time he committed the proscribed act or acts, lacked substantial capacity,

as a result of mental disease or defect, either to appreciate the wrongfulness

of his conduct or to control his conduct within the requirements of the law.

‘‘(b) It shall not be a defense under this section if such mental disease

or defect was proximately caused by the voluntary ingestion, inhalation or

injection of intoxicating liquor or any drug or substance, or any combination
thereof, unless such drug was prescribed for the defendant by a prescribing

practitioner, as defined in subdivision (22) of section 20-571, and was used

in accordance with the directions of such prescription. . . .’’

15 We acknowledge the defendants’ reliance on evidence establishing that

Tully is alcohol-dependent, and that the actions at issue resulted from excessive intoxication stemming from his alcoholism. To this end, Tully himself

claims that his alcoholism was ‘‘ ‘out of control,’ ’’ precluding him from

forming the intent to harm anyone when he committed the acts at issue in

this case. See footnote 6 of this opinion. Consistent with our legislature’s

pronouncement on this issue, we acknowledge that alcohol dependency, or

alcoholism, is itself a recognized mental disease or disorder. See General

Statutes § 17a-680 (1) (‘‘‘[a]lcohol-dependent person’ means a person who

meets the criteria for moderate or severe alcohol use disorder, as described

in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’ ’’); see also Skakel v.

Benedict, 54 Conn. App. 663, 677, 738 A.2d 170 (1999) (statutory privilege

for psychiatric records under General Statutes § 52-146d [2] applicable to

alcoholism treatment). The defendants do not, however, cite any authorities

suggesting that intoxication is any less voluntary as a matter of law when

it is spurred by an alcoholic’s substance dependency, and, as observed by

the plaintiff, the case law on this point holds expressly to the contrary.

See American Family Mutual Ins. Co. v. Peterson, supra, 405 N.W.2d 422

(holding, in hammer attack committed by diagnosed alcoholic, that ‘‘voluntary intoxication may not be used to deny an intent to injure one’s victim

where the circumstances of the assault otherwise compel an inference of

intent to injure’’ and observing that ‘‘[n]or do we think that other kinds of

assaults, such as rape, if committed in an alcoholic blackout, are within an

insured’s reasonable expectations of insurance coverage’’); see also State

v. Johnson, 327 N.W.2d 580, 582–83 (Minn. 1982) (describing as ‘‘weak,’’

and ‘‘not . . . accepted in any jurisdiction,’’ defendant’s claim ‘‘that a

chronic alcoholic’s intoxication is really involuntary intoxication and that

therefore the defense of involuntary intoxication, which applies to all crimes,

even general intent crimes, can be raised whenever a chronic alcoholic

commits a crime while intoxicated’’); Commonwealth v. Kuhn, 327 Pa.

Super. 72, 82, 475 A.2d 103 (1984) (‘‘involuntary intoxication cannot, as a

matter of law, be established through evidence showing that the criminal

defendant was a chronic alcoholic incapable of voluntarily refraining from

ingestion of alcohol’’); State v. Allert, 117 Wn. 2d 156, 167–68, 815 P.2d 752

(1991) (holding that, in absence of statutory direction to consider alcoholism

or other addictive diseases in sentencing, ‘‘voluntary use of alcohol is an

improper factor to consider in deciding whether to impose an exceptionally

low sentence’’); State ex rel. Jacobus v. State, 208 Wis. 2d 39, 51–54, 559

N.W.2d 900 (1997) (statute prohibiting prosecution of alcoholic for public

drunkenness or consumption of alcohol did not preclude prosecution for

violation of bail condition precluding consumption of alcohol); cf. In the

Matter of Moulton, 198 App. Div. 2d 595, 603 N.Y.S.2d 240 (1993) (rejecting

unemployment insurance claim because ‘‘[i]t was not claimant’s alcoholism

but his voluntary disregard of a legitimate condition of employment, the

maintenance of an operator’s license, which mandated his termination’’).

16 We need not, however, consider whether voluntary intoxication may

negate intent in cases in which intent is not inferred, as a matter of law, or

in cases in which intent is inferred for acts other than sexual misconduct

with minors.

17 Because we hold that evidence of voluntary intoxication may not, as a

matter of law, negate intent for purposes of insurance coverage arising out

of a claim against the insured for sexual misconduct with a minor, we need

not reach the question of whether the evidence presented by the defendants

was sufficient to create a genuine issue of material fact.