Superior Court upholds Allstate’s denial of coverage re: alleged conspiracy to enable sexual assault

Martica Douglas has been representing Allstate Insurance Company in a declaratory judgment action initiated by the named insured on an Allstate homeowners’ policy seeking to compel Allstate to defend her in an action filed by her sister. The sister’s complaint alleged that the insured conspired with her boyfriend to enable him to sexually assault her while the sister was a guest at the insured’s home; and that a violent and brutal assault took place when the insured left them alone in the house. The sister suffered significant injuries, and was awarded over $5 million in damages in a civil suit against the boyfriend.

Allstate declined to defend the insured in the action on the ground that a “conspiracy” was not an “accident” and therefore not a covered “occurrence;” and on the further ground that the homeowners policy does not cover an insured’s liability for injuries resulting from intentional conduct that should reasonably be expected to cause injury.

On May 3, 2013, the Superior Court issued a 9-page Decision and Order affirming Allstate’s position that it had no duty to defend or indemnify the insured. Of particular interest is the Court’s determination that the insured’s alleged negligent infliction of emotional distress (NIED) did not generate a duty to defend because emotional distress did not qualify as a “bodily injury,” which the policy defined as physical harm to the body. The Court also noted that under current Maine law, in the absence of a custodial or fiduciary relationship, an individual does not owe a duty to control the conduct of prevent one person to prevent harm to another —therefore, the complaint did not allege a liability that triggered a duty to defend.