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FOREMOST INS. CO. v. WEETMAN

December 5, 1989

FOREMOST INSURANCE COMPANY, Plaintiff,
v.
J. ROBERT WEETMAN, VINCENT B. PLATEK, JANICE A. PLATEK, AND VINCENT B. PLATEK AND JANICE A. PLATEK, as parents and natural Guardians of GREGORY M. PLATEK, a minor, ERIC M. PLATEK, a minor, and MICHAEL S. PLATEK, a minor, and DONEGAL MUTUAL INSURANCE COMPANY, Defendants


Baron P. McCune, Senior United States District Judge.


The opinion of the court was delivered by: MCCUNE

BARRON P. McCUNE, SENIOR UNITED STATES DISTRICT JUDGE

 In this declaratory judgment action, we consider motions for summary judgment filed by plaintiffs Foremost Insurance Company, (Foremost), and one of the defendants, Donegal Insurance Company (Donegal). Foremost and Donegal seek a declaration that they are not responsible to pay any damages resulting from a state court action against their insured. Because we construe the insurance policies in question in favor of both insurance companies, the summary judgment motions will be granted.

 Factual Background

 Defendants, Vincent B. Platek and Janice A. Platek, as parents and natural guardians of their minor children, Gregory M. Platek, Eric M. Platek, and Michael S. Platek (collectively the "Plateks"), have filed an action in the Court of Common Pleas of Allegheny County, Pennsylvania, at No. GD 87-13912 alleging that J. Robert Weetman (Weetman) in the fall of 1985, sexually abused the minor children by various acts of touching.

 At the time of the alleged abuse, Weetman had two Homeowner's Insurance policies, one for his mobile home, where the incidents allegedly occurred, and one for his permanent residence. Foremost has issued the former policy and Donegal the latter.

 Foremost filed a declaratory judgment action here on January 26, 1989, seeking a declaration that it would not be responsible to pay any damages resulting from the Plateks' suit. Donegal was later brought in and seeks the same declaration.

 Both policies contain exclusions for conduct which results in bodily injury which is "expected or intended" by the insured.

 Both Foremost and Donegal have moved for summary judgment on the ground that child molestation, as a matter of law, is conduct which is expected or intended to cause harm, and is excluded from coverage. The Plateks and Weetman both argue that Pennsylvania law would find an issue of fact in dispute, i.e., whether Weetman meant harm to the children when the alleged sexual assaults took place. It is argued that if Weetman meant no harm, the policy exclusions would not apply.

 Discussion

 Both Foremost and Donegal argue that their insured, Weetman, engaged in certain sexual activities which were not covered by either policy.

 The Donegal policy provides:

 
If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which ...

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