5th CIRCUIT HOLDS MOLESTATION IS INTENTIONAL & THUS NOT AN “OCCURRENCE” UNDER LIABILITY POLICY

January 16, 2012

An attorney attempting to collect from State Farm for a $4.75 million judgment against a State Farm insured in a civil child molestation case lost her appeal of the trial court’s summary judgment in State Farm’s favor.  On Thursday, in Wilkinson v. State Farm Lloyds, 2012 WL 89957, No. 11-20402 (5th Cir., Jan. 12, 2012), the Fifth Circuit upheld the trial court’s determination that molestation “could not be covered under the policy as it is an intentional act.”

After a Texas family won a state court judgment against Wallie Reid Williamson for having molested a young girl, the family assigned their right to recover against him to their attorney.  The attorney sued State Farm for its alleged failure to indemnify Williamson.  Williamson’s policy, however, provided defense and indemnity only for losses caused by an “occurrence,” which the policy defined as “an accident . . . which results in bodily injury.”  The court held the plain meaning of “accident” did not encompass Williamson’s intentional actions, citing the Texas Supreme Court’s definition of an accident as “a fortuitous, unexpected, and unintended event” that occurs “as the culmination of forces working without design, coordination, or plan.”