Fifth DCA Rules That Sexual Battery Exclusion Is Enforceable Because Such An Exclusion Using Terms "Arising Out Of" Is Clear And Unambiguous.
The trial court properly found that the homeowner’s policy did not cover the insureds for negligent supervision of a child who was sexually battered by the insureds’ son while in the care of the insureds. The exclusion was clear and unambiguous. Dueno v. Modern USA Insurance Co., Fla. Law Weekly D2383 (Fla. 5th DCA November 14, 2014). The plaintiff sued the homeowners for their negligent supervision of a minor who was sexually battered by their son (another minor) while in their care. The policy contained a sexual molestation exclusion stating that the policy did not contain coverage for bodily injury “arising out of actual or alleged sexual molestation or harassment, corporal punishment, or physical or mental abuse; ….”
Previously, Florida Courts had found policy ambiguity could be created by language in a severability clause (stating that the insurance applied "separately to each insured") which arguably conflicted with the intentional act exclusion (which excluded any injury "intended by any insured"). In that example of ambiguity within the policy, the severability clause essentially negated the intentional act exclusion for either a cause of action that did not apply to all insureds or an intentional act that only applied to one insured. In the Dueno case, the exclusion at issue does not exclude injury caused by another insured, but by any act of sexual molestation (irrespective of whether the person causing the injury is an insured or not). Given the broad wording of the sexual molestation exclusion in this case, there is no ambiguity created by the severability clause in the policy. See, e.g., Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) ("[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision."); Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 787 (Fla. 2004) ("Florida has long followed the general rule that tort law principles do not control judicial construction of insurance contracts. Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.").
As for Appellant's argument that the exclusion should not apply because it only excluded injury arising out of a sexual molestation, and not a sexual battery (as alleged in her complaint), the appellate panel concluded that the term sexual molestation unambiguously includes any unwanted sexual touching. The exclusion was valid and unambiguous.