1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-1994

Aetna, Inc. v. Barthelemy

Precedential or Non-Precedential:

Docket 93-7783

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Recommended Citation

"Aetna, Inc. v. Barthelemy" (1994). 1994 Decisions. Paper 74.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-7783 

 

 AETNA LIFE AND CASUALTY COMPANY, 

 Appellee, 

v. 

 CAROLYN BARTHELEMY; PETER M. BARTHELEMY; 

 MICHAEL BARTHELEMY; VICKI MCSPARRAN, 

 Vicki McSparran, 

 

 Appellant. 

 

Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. No. 92-cv-00945) 

Submitted under Third Circuit LAR 34.1(a) 

June 2, 1994 

Before: SCIRICA, NYGAARD and ALDISERT, 

Circuit Judges. 

(Filed July 6, 1994) 

 

 

 Ralph B.Pinskey 

 PINSKEY & FOSTER 

 121 South Street 

 Harrisburg, PA 17101 

 

 ATTORNEY FOR APPELLANT 

 

 John L. McIntyre 

 PFAFF, McINTYRE, DUGAS 

 & HARTYE 
2 

 P.O. Box 533 

 Hollidaysburg, PA 16648 

 ATTORNEY FOR APPELLEE 

 

OPINION OF THE COURT 

 

ALDISERT, Circuit Judge. 

 In this diversity case, we must predict whether the 

Pennsylvania courts would obligate an insurer to defend and 

indemnify an insured under a homeowner's policy in a state court 

action in which a female student at Penn State University alleged 

that she was harmed by the son of the insured as a result of his 

having sexual relations with her while both were intoxicated. The 

district court accepted the theory of Aetna Life and Casualty 

Company, Appellee, that Pennsylvania courts would adopt the 

inferred intent rule discussed in Wiley v. State Farm Fire & Cas. 

Co., 995 F.2d 457 (3d Cir. 1993), and entered a declaratory 

judgment that Aetna had no duty to defend or indemnify the 

insured. Vicki McSparran, the plaintiff in the state court 

action, has appealed the district court's declaratory judgment 

and argues that Pennsylvania courts would apply the general rule 

of subjective intent under the circumstances. 

 The district court had jurisdiction pursuant to 28 

U.S.C. § 2201 and § 1332. We have jurisdiction under 28 U.S.C. 

§1291. The appeal was timely filed under Rule 4(a) of the 

Federal Rules of Appellate Procedure. 
3 

 The parties have agreed that the Pennsylvania Supreme 

Court has not addressed the major issue raised in this appeal. 

Our review of a district court's prediction of how Pennsylvania 

would interpret the exclusionary clause of a homeowner's policy 

is plenary. Wiley, 995 F.2d at 459. 

 For the following reasons, we will reverse the judgment 

of the district court. 

I. 

 At the time of the incident giving rise to this 

litigation, both Ms. McSparran and Michael Barthelemy were 

students at Penn State University living in the main campus 

dormitory. At the time of the incident, she was 19 years old and 

a virgin and he was 18. While listening to the campus radio 

station, McSparran heard Barthelemy, the disc jockey, announce 

that the first person to come to the station and dance with him 

would receive a compact disc. When she arrived at the radio 

station, McSparran danced with Barthelemy and received a compact 

disc as promised. 

 Thereafter, Barthelemy promised McSparran that if she 

stayed until the conclusion of the radio show and helped him 

carry his tapes back to his dormitory room, he would give her 

another compact disc. She agreed, accompanied him to his room 

and received another disc. While in the room, Barthelemy offered 

McSparran two drinks of rum and coke, which she accepted. He 

then promised he would give her another compact disc if she would 

drink four shots of rum. It is undisputed that McSparran was an 
4 

inexperienced drinker, that she had hesitated to drink shots of 

rum, that Barthelemy assured her that rum was like beer and would 

not affect her, that she drank four shots of rum in a very short 

period of time and that she became ill and very drunk. 

 While McSparran was drinking, Barthelemy also consumed 

at least two drinks of rum and coke and at least four shots of 

rum. While McSparran was in an inebriated state, Michael had 

sexual relations with her.1 

 In her state court complaint, McSparran alleged that 

Barthelemy was guilty of battery, negligent or reckless conduct 

and reckless infliction of emotional distress. In his defense, 

Barthelemy contended that the sexual relations were consensual. 

McSparran emphasizes that she did not allege that he used force 

or violence, except for the battery count implications. Moreover, 

she asserted in each count that he did not "expect or intend that 

his conduct would cause the specific injuries that were suffered 

by Plaintiff as a result of his conduct." App. at 22a, 24a, 25a. 

 In a separate action brought in federal court, Aetna 

Life & Casualty Company sought a declaratory judgment that it was 

under no duty to defend or indemnify Barthelemy in the state 

court action under the intentional harm exclusion in the 

Barthelemy's homeowner's policy. The defendants below included 

McSparran, Michael Barthelemy and his parents, Carolyn and Peter 

M. Barthelemy, who were the named insured. McSparran filed a 

 

1Although the alleged misconduct occurred in Michael Barthelemy's 

dormitory, the parties do not contest the applicability of the 

Barthelemy's homeowner's policy. 
5 

motion for summary judgment in the declaratory judgment action, 

App. at 35a, and Aetna responded with its own motion for summary 

judgment. App. at 41a. 

 Relying on our decision in Wiley, the district court 

granted Aetna's motion for summary judgment and denied 

McSparran's motion, inferring Barthelemy's intent to harm 

McSparran as a matter of law from the act of non-consensual 

sexual intercourse. Aetna Life & Cas. Co. v. Barthelemy, 836 F. 

Supp. 231, 237 (M.D. Pa. 1993). The district court noted that in 

Wiley we inferred an intent to harm in a case of child 

molestation by an insured adult, and concluded that "[t]he Third 

Circuit's reasons for predicting adoption of the inferred intent 

rule in cases of child molestation are no less persuasive when 

the alleged victim is an adult." Id. McSparran's appeal 

followed. 

 The Barthelemy's homeowner's policy, issued by Aetna, 

contains the following exclusion: 

 1.Coverage E - Personal 

Liability and Coverage F - Medical 

Payments to Others do not apply to 

bodily injury or property damage: 

 a.which is 

expected or intended by 

any insured; 

App. at 18a. 

 We must determine whether the inferred intent rule, 

which we have previously held applicable to the "exceptional case 

of sexual child abuse by an insured adult," Wiley, 995 F.2d at 

461, would apply to the alleged sexual misconduct of Barthelemy. 
6 

 II. 

 Pennsylvania case law teaches us how to begin an 

analysis of exclusionary clauses of the type contained in the 

Barthelemy's homeowner's policy: 

In our state, the exclusionary clause applies 

only when the insured intends to cause a 

harm. Insurance coverage is not excluded 

because the insured's actions are intentional 

unless he also intended the resultant damage. 

The exclusion is inapplicable even if the 

insured should reasonably have foreseen the 

injury which his actions caused. 

United Servs. Auto. Ass'n v. Elitzky, 358 Pa. Super. 362, 

371 (1986) (citation omitted). The homeowner's policy in this 

case excluded bodily injury or property damage "which is expected 

or intended by any insured." 

 "An insured intends an injury if he desired to cause 

the consequences of his act or if he acted knowing that such 

consequences were substantially certain to result." Id. at 375. 

For a resulting injury to be excluded from coverage, the test to 

be applied in Pennsylvania under general liability cases is not 

whether the insured intended his actions, but whether the insured 

specifically intended to cause harm. Id. at 372. 

 As a threshold matter, we will agree with Aetna that 

McSparran's state court battery count is excluded from coverage 

because, by definition, the tort of battery requires proof of an 

intent to cause a harmful or offensive contact. See Restatement 

(Second) of Torts § 13 (1964). 
7 

 Although Elitzky mandates a "subjective intent" 

analysis for determining coverage under an exclusionary clause in 

most Pennsylvania insurance cases, a different analysis is 

applied in "those exceptional cases involving sexual child 

abuse." Wiley, 995 F.2d at 460. In "those exceptional cases," 

many jurisdictions have adopted what is called the "inferred 

intent" rule: This rule "allows a court to infer an actor's 

intent from the nature and character of his or her acts" and to 

"establish conclusively the existence of intent to harm as a 

matter of law." Id. This presumption is conclusive 

"notwithstanding the insured's assertion of an absence of 

subjective intent to harm." Id. Intent may be inferred only 

"'if the degree of certainty that the conduct will cause injury 

is sufficiently great to justify inferring intent to injure as a 

matter of law. . . . [T]he more likely harm is to result from 

certain intentional conduct, the more likely intent to harm may 

be inferred as a matter of law.'" Id. at 462 (quoting K.A.G. v. 

Stanford, 434 N.W.2d 790, 792-93 (Wis. 1988)). 

 Inferring intent to harm is strong medicine. We noted 

in Wiley that it has "narrow applicability." Id. We cautioned 

repeatedly that, "in cases that do not involve sexual child 

abuse, Pennsylvania has adopted a general liability standard for 

determining the existence of this specific intent that looks to 

the insured's actual subjective intent." Id. at 460. Moreover, 

although we have predicted that Pennsylvania courts would infer 

intent to harm in cases of child molestation, they have yet to 

decide this precise issue. 
8 

 With these precepts guiding our deliberation, we must 

determine whether, under the facts presented, this is a general 

liability insurance case in which the court must consider the 

insured's subjective intent to harm, or whether it is another 

"exceptional" case in which the court may infer the insured's 

intent to harm as a matter of law. 

III. 

 The district court extended our teachings in Wiley to 

the facts at bar, concluding that an intent to harm McSparran 

could be inferred as a matter of law, notwithstanding 

Barthelemy's subjective belief that he had consent and 

McSparran's repeated assertions that he did not intend the harm 

she suffered. Consequently, the district court held that 

Barthelemy's conduct came within the exclusionary clause of the 

homeowner's policy. Barthelemy, 836 F. Supp. at 237. In so 

doing, we believe the court erred. 

 In deviating from the general liability rule of 

considering subjective intent, the district court stated that 

this court's "reasons for predicting adoption of the inferred 

intent rule in cases of child molestation are no less persuasive 

when the alleged victim is an adult. Like sexual contact with a 

child, sexual assault of an adult is a crime." Id. at 236. The 

court continued: "Obtaining coverage for the commission of a 

criminal act is not within the contemplation of the average 

purchaser of homeowner's insurance." Id.
9 

 We believe that in analogizing this case to Wiley, the 

district court, to use a popular idiom, pushed the envelope too 

far. We note first that in this case there is no allegation that 

a crime was committed. McSparran alleged battery, negligent or 

reckless conduct and reckless infliction of emotional distress, 

App. at 22a-25a, but conceded that Barthelemy did not intend the 

harm she suffered as a result of this tortious conduct. App. at 

22a, 24a, 25a. The district court mischaracterized her complaint 

when it stated that she "allege[d] in the underlying action that 

Michael Barthelemy induced her to drink alcohol and raped her 

while she was under the influence." Id. at 232. The record 

discloses that the basis of McSparran's state court complaint was 

that Barthelemy committed a tort, not a crime. 

 Moreover, our entire discussion in Wiley was limited to 

sexual assault on a child. The fact that McSparran's assertions 

might conceivably give rise to criminal liability is not 

dispositive of an insured's intent to harm. Were it true that 

any potential criminal liability would give rise to an inferred 

intent to harm and, thereby, exclude coverage under a homeowner's 

policy, we would not have emphasized in Wiley that sexual abuse 

of a child is a uniquely harmful act calling for the narrowly 

applied inferred intent rule. We simply would have concluded 

that, because child molestation is a crime, intent to harm must 

be inferred as a matter of law. Instead, we recognized in Wiley

that subjective intent generally is relevant, even when the 

insured has pleaded guilty to a crime. 995 F.2d at 466-67; see

Stidham v. Millvale Sportsmen's Club, 421 Pa. Super. 548, 563 
10 

(1992) (holding that, because insured's intent to harm remained a 

material factual issue, summary judgment was inappropriate, 

notwithstanding the fact that insured shot and killed a stranger 

in an alcoholic blackout and pleaded guilty to third-degree 

murder). 

 Finally, the district court itself recognized the 

differences between this case and Wiley. It noted that: (1) the 

victim in Wiley was the 13-year-old niece of the insured; 

McSparran was a 19-year-old adult peer of the insured; (2) there 

was no contention in Wiley that the victim consented; the insured 

here alleged that McSparran consented; (3) the insured in Wiley

pleaded guilty to criminal charges; no criminal charges were 

filed against the insured here; and (4) here both adult 

participants in the sexual conduct were intoxicated. Id. at 236. 

IV. 

 Analogies can be considered one of the most important 

aspects of legal argument. Analogy is the method used to 

determine whether factual differences contained in the case at 

bar and those of the case compared are material or irrelevant. 

 One must always appraise an analogical argument very 

carefully. Several criteria may be used: 

•The acceptability of the analogy will vary 

proportionately with the number of 

circumstances that have been analyzed. 

•The acceptability will depend upon the 

number of positive resemblances 

(similarities) and negative resemblances 

(dissimilarities). 
11 

•The acceptability will be influenced by the 

relevance of the purported analogies. An 

argument based on a single relevant analogy 

connected with a single instance will be more 

cogent than one which points out a dozen 

irrelevant considerations. 

 Wiley and the cases cited to support its reasoning 

stand for the proposition that Pennsylvania courts would depart 

from the general liability test of subjective intent to cause 

harm in the limited circumstance of sexual assault upon a child. 

The reason for the rule of inferred intent is a societal 

recognition that, because a child lacks the capacity to give 

consent, sexual activity foisted upon that child by an insured 

adult raises the irrebuttable inference that the adult intended 

to harm that child, regardless of the insured's subjective 

intent. The reason for the rule is inexorably intertwined with 

the tender age of the child. See, e.g., B.B. V. Continental Ins. 

Co., 8 F.3d 1288, 1293-94 (8th Cir. 1994) ("Under Missouri law, 

the crime of deviate sexual intercourse with a person less than 

fourteen years of age requires no proof of intent on the part of 

the perpetrator. Thus, the Missouri legislature and the Missouri 

Supreme Court recognize that sexual molestation of a child is a 

crime for which the subjective intent of the perpetrator is 

irrelevant.") (citations omitted). Where a child is not a 

participant in the act, there is no reason for the rule. And, in 

the felicitous expression of Karl Llewellyn, "Where stops the 

reason, there stops the rule."2 

 

2Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice

217 (1962). 
12 

 Thus, applying the criteria for a proper analogy to the 

teachings of Wiley, the number of positive resemblances are 

minimal and the number of dissimilarities extensive -- here, the 

putative victim was an adult and not a child, there was no 

allegation of a criminal act but rather of a negligent or 

reckless act, there was an assertion by the insured of consent 

and an assertion by the putative victim that the insured did not 

intend the harm she suffered. Accordingly, our prediction is 

that Pennsylvania would apply the rule of general liability in 

this case: For the exclusionary clause to apply, the insurer had 

to prove that Barthelemy had the specific subjective intent to 

harm McSparran. 

 In sum, we hold that the exclusionary clause does not 

exclude torts of negligence or recklessness. "In the event that 

the complaint alleges a cause of action which may fall within the 

coverage of the policy, the insurer is obligated to defend." 

Stidham, 421 Pa. Super. at 564 (citing Hartford Mut. Ins. Co. v. 

Moorhead, 396 Pa. Super. 234, 238-39 (1990)).3

V. 

 Under these circumstances we conclude that Aetna failed 

to meet its burden of proving that the exclusionary clause 

 

3Nor may Aetna find comfort in the Pennsylvania criminal code 

under which voluntary intoxication may not be "introduced to 

negative the element of intent of the offense." 18 Pa. Cons. 

Stat. § 308. In this case, no criminal act was alleged and 

intent plays no role in allegations of negligent and reckless 

conduct. It would seem that the voluntary intoxication analogy 

could be used only by claimants to rebut an insurance carrier's 

invocation of the exclusionary clause. See Wiley, 995 F.2d at 

466; Stidham, 421 Pa. Super. at 563. 
13 

applied. We hold that the district court erred in applying the 

inferred intent rule and that Aetna failed to prove Barthelemy's 

subjective intent to harm McSparran as a matter of law. 

 The judgment of the district court in favor of Aetna 

will be reversed and the proceedings remanded with a direction 

that the district court grant McSparran's motion for summary 

judgment to the extent that the negligent and reckless conduct 

allegations in her state court complaint are not excluded from 

coverage under the homeowner's policy. 
14 
15