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United Servs. Auto. Ass'n v. DeValencia
949 P.2d 525, Ariz.App.Div.1, AZ, 01/21/1998
Category Victim v. Third Party 
Topic Insurers, Homeowners 
Filename Intended Act/Expected Results 
Crime Child Sexual Assault 
Location Child Care Facility 
Prevailing Party Plaintiff 
Other Parties Perpetrator's parents; insurer 
HoldingStatement of Facts: In 1992, Dennis and Debra Gerow provided child care in their home to plaintiff DeValencia's, three minor children. During that time, the Gerow's fourteen-year-old son, CG, molested plaintiffs' children. Plaintiffs filed suit against CG and the Gerows. USAA, the Gerow's homeowners' insurer, filed a declaratory judgment action asserting no coverage and the trial court granted summary judgment to USAA. Defendants appealed. Holding: Reversed. The Arizona Court of Appeals reversed the trial court's order granting summary judgment to USAA. USAA's motion was based on two policy exclusions: the business pursuit exclusion and/or the expected or intended injury exclusion. The Court held that the first exclusion clearly did not apply as USAA offered no evidence demonstrating that CG was engaged in a business pursuit when he committed the alleged acts. When an adult commits an act of child molestation, it is irrebuttably presumed in resolving questions of insurance coverage that the adult acted with a subjective intent to harm, thus triggering the expected or intended injury exclusion. However, the Court held that the same irrebuttable presumption of injurious intent does not apply to minors. Consequently, whether CG possessed a subjective intent to harm and whether he had the mental capacity to form such an intent remain unresolved questions of material fact, precluding summary judgment. 

Damage Award Not tried 
Victim's Counsel     
Plaintiff's Counsel Jeffrey Ostreicher, Michael York, Phoenix 
Plaintiff's Expert      
Defense Counsel David Damron, Melinda Cekander, Phoenix 
Defense Expert

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