Full opinion text
MEMORANDUM OF DECISION HALTOM, District Judge. This is an action for declaratory judgment brought by plaintiff State Automobile Mutual Insurance Company (“State Auto Mutual”) against defendants Edward McIntyre and wife, Daisy McIntyre (insureds), and Dawn Marie Yoder, minor granddaughter of defendant Edward McIntyre, to determine coverage under a homeowner’s liability insurance policy issued by State Auto Mutual to the McIntyres for assault and battery on two separate occasions in the form of nonviolent sexual abuse by the defendant grandfather of his minor granddaughter, Dawn Marie, during her 1983 and 1984 summer visitations at the McIntyre home in Lauderdale County, Alabama. At all times herein relevant State Auto Mutual insured Edward McIntyre and wife, Daisy McIntyre, against personal liability for bodily injury or property damage in amount of $100,000 for each occurrence with express Section II exclusion applicable to Coverage E — Personal Liability and Coverage F — Medical Payments to Others which provided that Coverage E and Coverage F do not apply to bodily injury or property damage: (a) which is expected or intended by the insured. [Defendant’s Exhibit 1, Homeowners Policy Issued by State Automobile Mutual Insurance Company.] The plaintiff insurance company seeks a declaratory judgment in this case that the above referenced policy exclusion applies in the instant case so as to exclude coverage for Dawn Marie Yoder’s claim for damages against her grandfather McIntyre arising out of his sexual abuse of her in the summers of 1983 and 1984. Counsel for the McIntyre and Yoder defendants assert that the bodily harm alleged to have been sustained by the minor child, Dawn Marie Yoder, as the result of her sexual abuse by her grandfather was neither expected or intended by him as one of the insured parties under the State Auto Mutual homeowner’s policy, thus requiring the plaintiff insurer to provide coverage for the minor granddaughter’s bodily injury claim against her grandfather for sexual abuse. In an underlying tort action tried before a jury at the Federal Courthouse in Florence, Alabama this 11-year old minor on October 23, 1986 recovered judgment against her grandfather McIntyre in total amount of $125,000.00 [compensatory damages in amount of $50,000.00 and punitive damages in amount of $75,000.00] for and on account of the sexual abuse referenced in the within declaratory judgment action. Final judgment was duly entered by the Court in the tort action in favor of the minor plaintiff and against the defendant Edward McIntyre in conformity with the jury verdict. Defendant Edward McIntyre’s motion for judgment notwithstanding the verdict and alternative motion for remittitur or new trial was denied by this Court without opinion on November 3, 1986. On November 28, 1986 Defendant Edward McIntyre gave Notice of Appeal to the United States Court of Appeals for the Eleventh Circuit. This appeal in the tort action is now pending. Pursuant to Rule 52, Fed.R.Civ.P., the Court now finds the facts specially and states separately its conclusions of law thereon in this declaratory judgment action. FINDINGS OF FACT At all times pertinent in this litigation the minor child, Dawn Marie Yoder, lived with her mother, Terry Buck (Huffstutler), in the State of Indiana. Subsequent to her 1984 Alabama summer visit with her grandfather McIntyre the child was enrolled as a 4th grade student at Walt Disney School in South Bend, Indiana. On October 31 of that year a “Big Bear-Little Bear” play was presented at Dawn’s school which depicted Little Bear’s “private spot” being touched by a grown bear. Little Bear told a responsible adult bear of this episode. The thrust of the play was to encourage school children to report similar instances in which they had been sexually abused. Thus motivated, Dawn promptly told her teacher of her sexual abuse by her grandfather. The teacher instructed Dawn to tell one of the ladies in the play. This lady told the child to tell her mother. Dawn immediately told her mother of the Alabama summer visit incidents. The mother reported these alleged sexual molestations to the local Indiana police. The end result was an Alabama grand jury investigation and an indictment by the Lauderdale County, Alabama grand jury on March 4, 1985 charging the defendant Edward McIntyre with two Class C felony counts of sexual abuse in the first degree under 13A-6-66, Ala. Code 1975, as amended, and a third felony count of child abuse under the Alabama Child Abuse Act, 26-15-1, et seq., Ala. Code 1975, as amended (Count III), all involving Dawn Marie Yoder. On April 17, 1985 the defendant grandfather, represented by counsel, entered a plea of not guilty and not guilty by reason of mental disease or defect to the charges in the indictment in the Lauderdale County Circuit Court. At that time counsel made known to the court that Mr. McIntyre was just recently released from the hospital and was under psychiatric treatment. The case was set for trial on May 28, 1985 with settlement conference on May 23, 1985 before Circuit Judge Ned Michael Suttle. For reasons not disclosed of record, these May 1985 trial and settlement conference settings were continued for approximately one month. On June 20, 1985 defendant Edward McIntyre, represented by Attorneys Donald E. Holt and Lindsey Mussleman, appeared before Judge Suttle in the Lauder-dale County Circuit Court in Florence, Alabama. The State was represented by two special prosecutors from the District Attorney’s Office in Franklin County, Alabama. The court announced that there was a request by the defendant McIntyre to enter a guilty plea and that a plea bargain had been effected in the case. The indictment, which did not specify the period of time in which the offense was alleged to have occurred, was amended by consent. The State with of record consent by defendant and counsel moved for dismissal of Counts I and III of the indictment and further moved to amend Count II by specifying that the offense of sexual abuse in the first degree therein charged occurred in August 1984. The court thereupon proceeded to orally question defendant for the purpose of establishing of record that the defendant’s preferred plea of guilty to Count II of the indictment was knowingly, voluntarily and understanding^ entered. The Court observed of record in the presence and hearing of defendant McIntyre with counsel by his side that the plea agreement provided that the State would recommend a 6-year sentence and that there would be no further indictments in the future involving Dawn Marie Yoder, Amanda McIntyre or Deborah Jones. The defendant thereupon acknowledged of record his understanding of such plea agreement and his knowledge that he faced a maximum penalty of up to 6 years if his guilty plea was accepted. After further extensive litany required by Alabama guilty plea procedure, the court then inquired of record of the defendant whether he pled guilty or not to Count II of the indictment charging sexual abuse in the first degree. Counsel for McIntyre then apprised the court on the record that the defendant McIntyre had noted in his Request To Enter A Guilty Plea that he requested to plead guilty under the provisions of the Alford case, that defendant suffered a psychotic episode about the time he was charged and received [electric] shock treatments; that the medical evidence, if offered, would show that shock treatments affect memory somewhat; that he (counsel) had explained to defendant all of the evidence of which he (counsel) was aware that the State would offer against him if the case went to trial; that he (counsel) had advised defendant there was a substantial likelihood of conviction; that defendant had responded (to counsel) that due to his health condition and the shock treatments and psychosis he suffered he had no independent recollection of the acts charged against him; but that based on counsel’s representations to him of what the evidence was and would be he felt he would be convicted and that it was to his best interests to enter a plea under the plea bargain agreement. Accordingly, stated counsel to the court, the defendant offered to enter his guilty plea under the provisions of the Alford case. Thereupon, defendant McIntyre formally proferred his plea of guilty to amended Count II of the indictment. The special prosecutors were then asked by the court to state of record the substance of the case against the defendant. In response Special Prosecutor McDowell informed the court that the substance of the case would be that on or about August of 1984 Dawn Yoder, then 9 years old, was at the house of the defendant Edward McIntyre and that at such time and place defendant fondled or touched her private parts, specifically, her vagina. Moreover, asserted the prosecutor, the State would offer evidence of statements made by defendant corroborating his commission of the criminal act charged against him and would attempt to offer other evidence of other sexual molestation by the defendant of Deborah Jones and Amanda McIntyre. Other intensive question and answer interrogation of defendant by the court followed, including a statement of record by Mr. McIntyre that he believed it would be a likelihood he would be convicted and that he was entering into the plea agreement because he thought it was in his best interest to take the plea agreement of 6 years rather than stand trial and face a possibility of a 10-year sentence. Counsel for Mr. McIntyre emphasized of record that an essential part of the plea agreement was the agreement of the State not to seek further indictments against the defendant. Counsel added that there was certainly a likelihood or a probability of other indictments, except for the plea bargain, further noting that Mr. McIntyre’s position was that in view of his health and the fact that he had suffered heart attacks it was in his best interest to enter the plea and get all of the possible prosecutions behind him. Counsel for defendant both confirmed of record their opinion that it was to Mr. McIntyre’s best interest to enter into the plea bargain agreement. Defendant’s counsel also expressed opinion that Mr. McIntyre was conscious and aware of the charges against him and was generally capable of understanding the procedure that day being followed by the court in the McIntyre case. Mrs. Daisy McIntyre (wife of defendant), Greg McIntyre (adult son of defendant) and Martha Orrick (sister of defendant) were next questioned by the court of record. All three testified that Edward McIntyre, in their opinion, knew what was going on with respect to the guilty plea procedure and understood the consequences of what he was doing. The Court thereupon accepted of record Mr. McIntyre’s plea of guilty to Count II, as amended, of the indictment, adjudged him guilty of Sexual Abuse in the First Degree, as charged, dismissed Counts I and III on motion of the State and continued the case for sentencing until July 12, 1985 at 9:00 A.M. Probation was requested. Under date of July 29, 1985 Circuit Judge Ned Michael Suttle of the Lauder-dale County Circuit Court, after hearing, denied Edward McIntyre’s request for probation and sentenced him to serve 6 years in the state penitentiary. His incarceration commenced two weeks later. From that time to and through trial date Mr. McIntyre was and still remains a state prison inmate. His presence at trial was secured through the issuance of an appropriate writ by this Court. TESTIMONY OF DAWN MARIE YODER Dawn Marie Yoder in small voice testified at length before the jury. She recounted haltingly but in some detail her visits in her grandfather’s Alabama home in the summers of 1983 and 1984. In 1983, as she and her grandfather McIntyre were lying on the couch in the living room watching television before supper, the first incident occurred. She was wearing a nightgown and underpants and was covered by a blanket'. “He put his hand down my pants and touched me in my private spot.” He put his finger inside me. It hurt a little bit — like a burn or something.” The 11-year old witness testified that her grandfather kept his finger “inside her” about 25 minutes and took his hand out [of her pants] on his own. She then left and went to the bathroom. Dawn Marie’s version of the 1984 summer visit episode was substantially the same as described in her testimony respecting the 1983 incident. Again, she was wearing a nightgown and underpants. She testified that “he put his finger inside me again — more than just a few minutes.” Dawn Marie testified that she thought about these incidents with her grandfather but didn’t tell anybody until after the school play in the fall of 1984. “I was scared,” said she. When asked as to her feelings about these episodes she testified: “I feel kinda hurt sometime. My grandfather was supposed to love me — not to hurt me.” She stated that she was “down here” to punish her grandfather. The Court fully credits the testimony of this 11-year old child, finding her testimony to be both creditable and believable with respect to both instances of sexual abuse. TESTIMONY OF EDWARD McINTYRE The defendant grandfather, Edward McIntyre, testified before the jury and also in chambers before the Court. At the time of trial he was 49 years of age and was incarcerated in a minimum security facility of the State of Alabama. Mr. McIntyre recalled both the 1983 and 1984 summer visits of his granddaughter, Dawn Marie Yoder. In 1983 his daughter, Terry, and her then husband, Russell Buck, accompanied his granddaughter. He remembered and related taking Dawn Marie for rides on his motorcycle and at times being alone with her watching television. He testified: “What time I didn’t ask her she piled up on me.” He told of his several visits with his daughter and granddaughter in Indiana and bringing them both to Alabama. He stated that he, his wife Daisy and his son, Greg, went to Terry’s wedding in Indiana in 1982. Mr. McIntyre also recalled the summer visit of Terry and Dawn Marie in his home in 1984. The defendant grandfather gave evasive answers to questions put to him concerning his alleged sexual molestation of his minor granddaughter during her 1983 and 1984 summer visitations in his home. He described his memory as being “jumbled up.” He first outright denied sexually abusing his granddaughter and then equivocated by saying: “I don’t think I done it.” “I’m almost certain it didn’t happen.” He then testified concerning his recollection of watching television with Dawn Marie. He was sitting on the couch. She sat on him; “piled up on me.” He remembered his hand in her pants. “She pushed his hand down on her stomach — pushed his hand down in her pants.” His hand touched her privates.” It was a push — a deliberate push on her part.” “It lasted a half minute or minute — I wasn’t expecting it.” “She just shoved it down there.” “It did not go up inside her — not that I know of — I can’t remember.” Mr. McIntyre testified: “It was a deep shock to me.” Dawn was 9 years old — summer of 1984. He stated she was “experimenting.” He further testified: “I’m saying I don’t think I did it; I don’t believe I did it.” Mr. McIntyre told of his first marriage to Doris McIntyre, mother of his daughter, Terry Buck Huffstutler. They were separated when Terry was born. He did not know where. His second marriage was to Daisy McIntyre, his present wife and mother of his daughter Pam (then 24) and his son, Greg (then 25). The defendant grandfather denied attempting to have sex with his daughter, Pam, when she was 15 or 16 years old at a time when he was drunk. He testified: “I don’t believe it happened; if I did, I don’t remember it.” He stated that he never had sex with a minor child except when he was a child himself. He denied fondling Amanda McIntyre, his brother’s daughter who was 15 or 16 years old at time of trial, but admitted he had heard from his wife that Amanda claimed that he did. He related to the Court and jury his recollection of the motorcycle riding incident with Deborah Jones at a time when she was 12 or 13 years of age. This episode is briefly recounted in footnote 5, ante. Edward McIntyre described his guilty plea to the charge of First Degree Sexual Abuse as being produced by fear. From close observation of this defendant during the trial, including the time his testimony was presented both in the courtroom and in chambers, and a careful analysis of his testimony, the Court concludes and finds that Mr. McIntyre’s equivocal denials of his sexual molestation of his minor granddaughter, Dawn Marie Yoder, are unworthy of belief. And the Court is fully persuaded and finds from all of the evidence that this defendant grandfather did in fact in a nonviolent way sexually abuse his minor granddaughter, Dawn Marie, in the summers of 1983 and 1984 when she was 8 and 9 years old respectively by placing his hand on her “private spot” and by inserting his finger therein. Moreover, the evidence in this case supports the Court’s finding of fact here made that for a period of years preceding the 1983 and 1984 episodes in question Mr. McIntyre has indulged himself in nonviolent sexual molestation of females of tender years, including his own daughter, Pam McIntyre. However, there is no evidence of other sexual abuse or related criminal charges being made against him and he has no other criminal convictions of consequence. This evidentiary record shows Mr. McIntyre to otherwise have been a good, reputable citizen and a hardworking man prior to his 1985 criminal conviction for sexual abuse. While this record does show Mr. McIntyre’s intermittent bouts of over-indulgence in alcoholic beverages in his younger years, there is no evidence that he was under the influence of alcohol or even “drinking” at the time of the occurrences in question. From his courtroom demeanor and testimony, the Court finds the defendant Edward McIntyre to be of average intelligence. The Court’s findings of fact with respect to the factual issue of whether this defendant grandfather expected or intended to cause bodily injury to his minor granddaughter by his sexual abuse of her during the child’s summer visitations in the McIntyre home in 1983 and 1984 are hereinafter set out in a separate section of this memorandum of decision. PSYCHIATRIC EVIDENCE Dr. Joseph W. Glaister, a psychiatrist associated with the Riverbend Center For Mental Health in Florence, Alabama, whom the Court recognized and accepted as an expert witness in his medical field, was called to testify on behalf of the defendant Edward McIntyre. Dr. Glaister first treated the defendant grandfather in March 1985 when he was seen by the doctor in the emergency room of Eliza Coffee Memorial Hospital (ECM) in Florence in an acutely depressed and disturbed state. He was admitted to the hospital’s “400 unit,” a 39-bed psychiatric section of ECM, where he developed acute suicidal psychosis. Dr. Glaister related the history of this patient from his medical records but did not provide the source or sources. Mr. McIntyre had a history of alcoholism. Every one of his daughters, except one, had been molested by him in their childhood. He once attempted sex by force with his 16-year old daughter when drunk. Dr. Glaister testified that he administered electric shock treatment to Mr. McIntyre who suffered a coronary occlusion about 20 minutes later. Dr. Glaister diagnosed Edward McIntyre as suffering from pedophilia which he described as a compulsion of an adult to have sex with a child or children. He related that the defendant McIntyre told him that “girls made him commit this act” and “that women controlled his life.” BODILY INJURY SUSTAINED BY MINOR CHILD CAUSED BY THE SEXUAL ABUSE In the jury trial of the underlying tort action counsel of record for the minor plaintiff presented an array of evidence concerning the psychological harm inflicted upon Dawn Marie Yoder by her grandfather’s sexual abuse of her during her summer visitations in the McIntyre home in 1983 and 1984. This evidence came in the form of oral testimony from her mother, Terry Buck Huffstutler, an Alabama licensed PhD psychologist, Dr. Bonnie Dean Atkinson of Florence, Alabama, who first saw this minor plaintiff in a 2-hour session on September 24, 1986 (approximately one month prior to trial) and again on September 25th and 26th for a 2-hour and 1-hour session respectively and an Indiana licensed PhD psychologist, Dr. Michael Rupley, who had been counseling Terry Buck Huffstutler, the mother, for several months prior to Dawn Marie telling her mother on October 31,1984 after the school play of the summer incidents in 1983 and 1984 involving her sexual abuse by her grandfather McIntyre and who interviewed the minor child on two occasions in November 1984 at the mother’s request. Since Dr. Rupley saw this minor child almost immediately after Dawn Marie told her mother of the 1983 and 1984 episodes at her grandfather’s house, his expert witness testimony before the Court and jury is first summarized. Significantly, this Indiana psychologist apparently made no recommendation for immediate counseling. He found from his two November 1984 interviews: (1) that the child’s grades were not suffering ill effects; (2) she experienced no negative physical effects; (3) she experienced no withdrawal; and (4) there was no significant amount of denial. He testified of his impression from the child’s account of the sexual abuse episodes that “the abuse did in fact occur.” Dr. Rupley related to the Court and jury that he had told the child’s mother following his November 1984 sessions with Dawn Marie that it was absolutely mandatory that she ultimately get counseling for the child by a certified child psychologist. This counseling was to occur in her adolescent years— for six weeks. Then for a year once a week, with progress monitored. He further recommended that the minor child receive expert counseling before marriage and after five years into marriage. It is undisputed that Dawn Marie’s mother did not return the child to Dr. Rupley or to any other psychologist for counseling or other treatment following the two November 1984 sessions in Dr. Rupley’s office until almost two years later as the October 1986 trial date approached. Without faulting them for doing so or suggesting any impropriety, it is obvious that as trial date loomed, able and industrious counsel of record for this minor child were looking for a favorable expert witness in the field of child psychology and child abuse and found one in Dr. Bonnie Dean Atkinson. Dr. Bonnie Dean Atkinson received her undergraduate degree in elementary education, at least one master’s degree in psychology and her doctor’s degree in that same field. She was licensed as a psychologist by the State of Alabama in 1981. She has an extensive background of working with children. Approximately two-thirds of her practice is in child psychology. She sees approximately 100 children per year who have been or are currently being sexually abused. The Court recognized the extensive training and experience of Dr. Atkinson in her profession and accepted her as an expert witness in the proffered area of child psychology and child abuse. As previously noted, Dr. Atkinson first saw Dawn Marie Yoder on September 24, 1986 for two hours. She had another 2-hour session with the child the following day and a third and final 1-hour session with her on September 26, 1986. Dr. Atkinson testified that she has dolls with genitals in her office and utilizes them as effective tools in her child counseling sessions. She related that Dawn Marie took one of the dolls and demonstrated exactly what she was told by the child respecting the sexual abuse episodes involving her grandfather. Dr. Atkinson had a firm professional opinion that the minor child was telling the truth. “Children don’t make these things up,” she said. She proffered her opinion that the child was obviously under stress but did not show much emotion. Dr. Atkinson used the word “denial” in professionally describing the child’s psychological reaction to the highly stress-laden situations to which she had been subjected. The expert witness described her professional assessment of the child as “very cooperative,” “a mild mannered youngster,” “anxious to do well,” and “who berated herself.” Her average IQ was stated to be 94, within normal range. Her “thinking style” showed no serious disturbance. Her reading level was like that of a child beginning the 5th grade. Her spelling level was normal. Her score in arithmetic was well below normal and on a 3rd grade level, denoting a simple learning disability. Dr. Atkinson testified that the child was becoming overly identified, overly feminine. She was a caricature of femininity, typical of victimization. She stated that sexual abuse victims quit trying and need intervention — professional help. She testified that Dawn Marie perceived herself as immobile and helpless, noting that the child drew a picture of herself (upon request) in a very unusual way. The child psychologist related that psychologically the minor child was fearful and distraught. She observed that the child was a caretaker of other people’s feelings, a professional conclusion drawn by the expert witness from the child telling her of her mother and family-life history. She related that this self-relegated position was typical of a child abuse victim. Dr. Atkinson described Dawn Marie as dsyfunctional in a social sense and as a result might go from one marriage to another when reaching maturity. She testified that 65% to 75% of prostitutes had been sexually abused. Child abuse victims, she said, had a very high risk for maladjustment in adulthood and added that Dawn Marie fell into that category as a result of her sexual molestation by her grandfather. Dr. Atkinson recommended that Dawn Marie Yoder be given two to three years of intensive psychotherapy (open-ended therapy), one hour per week, 50 weeks per year, for three years, to counteract or palliate the psychological trauma to which she had been subjected by the sexual abuse experiences. She testified that it was her expert opinion that Dawn Marie exhibited pseudo-maturity and that her sense of herself was not healthy. POLICY EXCLUSION The evidence is uncontroverted that a State Auto Mutual homeowner’s liability policy had been issued to defendants Edward McIntyre and wife, Daisy McIntyre, which was in force and effect at the time of the 1983 and 1984 incidents of sexual abuse of the minor defendant, Dawn Marie Yoder, by her grandfather McIntyre. It is also uncontroverted that such policy contained a Section II exclusion applicable to Coverage E — Personal Liability and Coverage F — Medical Payments To Others which provided that Coverage E and Coverage F do not apply to bodily injury or property damage: (a) which is expected or intended by the insured. FACTUAL ISSUE OF WHETHER DEFENDANT GRANDFATHER EXPECTED OR INTENDED TO CAUSE BODILY HARM TO HIS MINOR GRANDDAUGHTER WHEN HE SEXUALLY ABUSED HER Before making findings of fact with respect to the factual issue of whether bodily harm to the minor defendant, Dawn Marie Yoder, was expected or intended by her grandfather, defendant Edward McIntyre, when he sexually abused her on the two occasions in question, the Court must first ascertain the proper standard to be applied in weighing the facts in this evidentiary record. Under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1988), a federal court in a diversity action must apply the controlling substantive law of the state. The construction of insurance contracts is governed by substantive state law. Dempsey v. Auto Owners Insurance Co., 717 F.2d 556, 559 (11th Cir.1983). The Court notes that the homeowner’s policy or policies at issue here were issued to Alabama insureds, delivered to Alabama insureds residing in the State of Alabama, and that the incidents of sexual abuse which precipitated this controversy occurred in Alabama. The latest, most authoritative decisions of the Supreme Court of Alabama interpreting this homeowner’s insurance policy exclusion and determining the proper standard to be employed to ascertain whether another’s bodily injury was either “expected or intended by the insured” are thus controlling in this federal court diversity of citizenship declaratory judgment action. Moreover, this Court is bound to here follow state law, whether or not the Court agrees with the reasoning upon which it is based or the outcome which it dictates. Delta Air Lines, Inc. v. McDonnell Douglas Corp., 503 F.2d 239, 245 (5th Cir.1974), cert. denied 421 U.S. 965, 95 S.Ct. 1953, 44 L.Ed.2d 451 (1975); Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983); Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir.1985). In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So.2d 921 (Ala.1984), the Supreme Court of Alabama considered a standard form insurance policy exclusion virtually identical to the exclusion clause in the instant case in an effort to determine whether an insured’s shooting of his brother was “expected or intended from the standpoint of the insured.” In Dyer the insurer brought a declaratory judgment action to determine its obligation, if any, to defend and provide coverage to the insured’s estate in the insured’s brother’s estate wrongful death action arising out of the insured’s fatal shooting of the brother and subsequent suicide. The trial court found that the injury inflicted was not expected or intended and therefore declared that Alabama Farm Bureau was obligated to defend and provide coverage to the insured’s estate in the wrongful death action brought by his brother’s widow. Alabama Farm Bureau appealed. The issues presented for review on appeal were: (1) whether the ore tenus presumption of correctness applied to the trial court’s ruling that the injury which Wayne Dyer inflicted upon his brother William was not “expected or intended from the standpoint of the insured”; (2) whether a subjective or objective standard governed the determination of whether the insured’s infliction of bodily injury upon another was expected or intended; and (3) whether the trial court erred in determining that the insured Wayne Dyer neither expected or intended to injure his brother. Id. at 923. Upon review the Dyer court noted that the ore tenus presumption of correctness applied to the trial court’s finding: This court has consistently held that the question of whether an injury which the insured inflicts upon another is “expected or intended from the standpoint of the insured” is a question of fact for the jury or judge. Dyer, 454 So.2d at 924. Responding to the argument of the Farm Bureau that even under the ore tenus presumption the trial court’s ruling on the applicability of this exclusion was clearly erroneous, palpably wrong, and manifestly unjust under the objective standard of review which declares that a “voluntary injury is intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous” and to Farm Bureau’s contention that because reasonable, ordinary prudence would certainly pronounce the act of pulling the trigger of a gun aimed within point-blank range at another person “dangerous”, the resulting injury to this person would therefore be “expected or intended from the standpoint of the insured,” the Alabama Supreme Court in Dyer reexamined its past pronouncements interpreting this policy exclusion to determine whether a subjective or objective standard governed, Id. at 924-25. The Dyer court rejected the objective standard of review and “forseeable injury” argument advanced by Farm Bureau and thereupon enunciated the proper standard to be applied when weighing the facts in cases involving the construction of this standard-form insurance policy exclusion, using the following language: The “voluntary exposure to unnecessary danger” exclusion, however, denies coverage for the insured’s bodily injury or property damage resulting from the insured’s intentional exposure to a condition which the reasonable person would pronounce dangerous (footnote omitted), hence the need for an objective methodology, unlike the “expected or intended from the standpoint of the insured” exclusion, which denies coverage for another person’s bodily injury or property damage which the insured either subjectively expected or intended to inflict upon another. Because the presumption in tort and criminal law that a person intends the natural and probable consequences of his or her intentional acts has no application to the interpretation of the terms used in the “expected or intended from the standpoint of the insured” policy exclusion, the policy terms, “expected or intended injury,” cannot be equated with “foreseeable injury.” See Smith v. North River Ins. Co., 360 So.2d 313, 315 (Ala.1978) (question of intent in personal injury action not the same as question of “expected or intended” injury in policy exclusion). We therefore hold that a purely subjective standard governs the determination of whether the insured Wayne Dyer either expected or intended to inflict bodily injury upon his brother, William. Under this subjective test, an injury is “intended from the standpoint of the insured” if the insured possessed the specific intent to cause bodily injury to another, whereas an injury is “expected from the standpoint of the insured” if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act. See Continental Western Ins. Co. v. Toal, [309 Minn. 169], 244 N.W.2d 121, 125 (Minn. 1976), for a thorough discussion of the proper standard used to interpret this policy exclusion. Id. at 925. Noting that the final issue presented for review was whether the trial court erred in determining that the insured Wayne Dyer neither expected nor intended to injure his brother, the Dyer court concluded: Farm Bureau’s position is predicated upon an objective interpretation of the policy terms “expected or intended from the standpoint of the insured.” Because a purely subjective standard governs the construction of this clause, the record discloses ample evidence to support the trial court’s ruling. Based upon all this evidence, the court could have reasonably concluded that Wayne neither expected nor intended that the gun would discharge and wound his brother. We therefore affirm the judgment. Id. at 926. Watson v. Ala. Farm Bureau Mut. Cas. Ins. Co, 465 So.2d 394 (Ala., 1985), is the case next decided by the Supreme Court of Alabama involving the same issues resolved in Dyer on June 1, 1984. In Watson the homeowner’s insurer brought a declaratory judgment action to determine its obligation, if any, to defend and provide coverage to its insured in a pending assault and battery action. The trial court entered judgment declaring that Alabama Farm Bureau had no duty to defend or obligation to provide coverage to Watson. The insured appealed, raising two issues, only one of which is pertinent. That issue was: whether the trial court committed reversible error by finding that the shooting was “expected or intended from the standpoint of the insured.” The Alabama Farm Bureau homeowner’s policy issued to Watson contained the following exclusion: “1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to: a. bodily injury or property damage which is expected or intended by the insured.” Id. at 396. The Alabama Supreme Court observed, Id. at 396, that it had considered this same standard form insurance policy exclusion in Dyer, in an effort to determine whether an insured’s shooting of his brother was “expected or intended from the standpoint of the insured.” The Watson court succinctly stated the finding of the trial court in Dyer in favor of the insured and that upon review it had (in Dyer) noted that the ore tenus presumption of correctness applied to the trial court’s finding. The Watson court thereupon quoted the following articulation by the Dyer court of the legal standard to be applied when weighing the facts: “We, therefore, hold that a purely subjective standard governs the determination of whether the insured Wayne Dyer either expected or intended to inflict bodily injury upon his brother, William. Under this subjective test, an injury is intended from the standpoint of the insured if the insured possessed the specific intent to cause bodily injury to another, whereas, an injury is ‘expected from the standpoint of the insured’ if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act.” Dyer, 454 So.2d at 925. Watson then opines: Applying the pronouncements in Dyer to the case at bar, the record indicates that there was sufficient evidence to support the trial court’s findings. The testimony at trial indicates that Watson took a gun with him when he went to see what had happened to his daughter. Watson got out of his car and had the gun with him. He came up to Renfroe’s truck and asked, “What ya’ll done to Sharon?” and then pulled the gun, pointed it at Renfroe’s head, and shot Renfroe. Although the testimony indicated no prior animosity between the parties, and although Watson testified that he did not mean to shoot Renfroe, nevertheless the trial judge, after hearing all the evidence could have reasonably concluded that when Watson pulled the gun, he either expected or intended that the gun would discharge and injure Renfroe. Based upon all of the evidence, the trial court could have reasonably concluded that Watson either expected or intended that the gun would discharge and injure Renfroe. The ore tenus presumption of correctness attached to the trial court’s findings on this controverted factual question. Id. at 396. The Watson opinion next proceeds with a discussion of the issue whether the trial court erred in its finding that insured failed to give Farm Bureau notice of the incident within the time required by the policy, not here pertinent, and then affirms the judgment of the trial court: Upon review of the record in this case, we find that the trial court’s conclusions were not clearly erroneous or against the great weight of the evidence. Therefore, the judgment of the trial court is affirmed. Id. at 397. Allstate Ins. Co. v. Shirah, 466 So.2d 940 (Ala.1985), decided by the Supreme Court of Alabama on March 1, 1985, was an appeal from a declaratory judgment action brought by appellant, Allstate Insurance Company (Allstate), to determine the rights and liabilities of the parties under an automobile insurance policy issued by Allstate to appellee, Daniel L. Shirah. The policy contained the following provision: EXCLUSIONS — What is not covered. This coverage does not apply to liability for (8) bodily injury or property damage caused intentionally by, or at the direction of, an insured person. The trial court held that Allstate was required to defend Shirah against an action filed by Fred Fellows and Lynda Fellows and to pay all sums that Shirah might become obligated to pay under the terms of the policy. The facts upon which the trial court’s holding was based, insofar as here pertinent, are as follows: On the night of April 26, 1982, Shirah went to a nightclub in Dothan, Alabama, and had several drinks. He left the club sometime after 10:30 p.m. Shortly before midnight, Officer Fred Williams of the Dothan Police Department observed a car slide to a stop in the left turn lane of Ross Clark Circle eastbound, where it intersects U.S. Highway 231. Officer Williams identified the driver of the car as Shirah. The car proceeded straight, instead of making a left turn, and accelerated rapidly. Officer Williams began pursuit and followed the car, which continued east on Ross Clark Circle. Officer Williams observed the car run a red light at the next intersection; cross over into the westbound, on-coming lane of traffic and travel approximately 200 yards; enter a shopping center parking lot, make a 360-degree turn, exit the parking lot onto Denton Road, and proceed north. In response to a radio dispatch originating with Officer Williams, Officer Ronald Black and Officer Fred Fellows began traveling south on Denton Road. Officer Black’s unmarked police car was in the lead. Upon sighting the headlights of Shirah’s car, Officer Black, in an attempt to establish a “rolling roadblock,” wherein his ear would be in front of Shirah’s car and headed in the same direction, made a sharp turn to the left across the northbound lane of Denton Road. Unfortunately, Officer Black’s car stalled during the turn and blocked the northbound lane. Officer Fellows, a short distance behind Officer Black, also began a turn; however, his car remained in the southbound lane. Shirah, upon reaching Officer Black’s car, swerved his car into the southbound lane. Shirah avoided hitting Officer Black’s car, but, collided with Officer Fellows’s car. Officer Black testified that the time lapse between Shirah’s passing his car and striking Officer Fellows’s car was less than one second. Subsequent to the accident, Officer Fellows and his wife Lynda filed an action against Shirah for damages for injuries sustained by Officer Fellows. Id., at p. 942. The Shirah court in affirming the judgment of the trial court observed that the Allstate standard form insurance policy exclusion above set out was analogous to the exclusion provision that was at issue in Dyer which excluded coverage for “bodily injury or property damage which is either expected or intended from the standpoint of the insured,” that in Dyer the trial court under facts showing that the insured, Wayne Dyer, had shot and killed his brother William found that Wayne’s shooting of his brother was neither “expected nor intended from the standpoint of the insured,” that in affirming the findings of the trial court it (in Dyer) first noted that the question of whether an injury inflicted by the insured upon another person was expected or intended was a question of fact for the jury or judge and then held that a purely subjective standard governed the determination of whether the insured either expected or intended to inflict bodily injury, enunciating such standard. The Shirah court then wrote: Unlike Dyer, where the trial court had to determine whether the insured either expected or intended the injuries that occurred, in the instant case, because of the language of the exclusion provision, the, trial court had only to determine whether Shirah intentionally caused the injuries suffered by Officer Fellows. Despite the circumstances preceding the accident, the record indicates that there was sufficient evidence to support the trial court’s finding that Shirah did not intentionally cause “any bodily injury or property damage.” ... The ore tenus presumption of correctness attached to the trial court’s findings. On the basis of the foregoing analysis, the judgment of the trial court is hereby affirmed. Id., at p. 945. The pronouncements in Dyer also were held controlling and determinative in Allstate Ins. Co. v. Portis, 472 So.2d 997 (Ala., 1985), which involved a declaratory judgment action brought by the homeowner’s insurer against the defendant insured, Alexander Portis, and defendant Henry E. Coats, as administrator of the estate of John Coats, deceased, to determine the applicability of an exclusion for bodily injury in the Allstate homeowner’s insurance policy issued to Portis after a wrongful death action had been instituted by the defendant administrator against Portis arising from the fatal shooting of John Coats by the defendant insured. The declaratory judgment action proceeded to trial before a jury. The jury returned a verdict for the defendant insured and against the plaintiff Allstate. The appeal followed. The Supreme Court of Alabama in Portis affirmed its holding in Dyer that a purely subjective standard governed the determination of whether the insured either expected or intended to inflict bodily harm upon the victim (a question of fact for the judge or jury) and, applying that principle, held that the evidentiary record presented a conflict in the evidence which made it an issue for the jury on Portis’s intent to cause injury. The judgment of the lower court against Allstate pursuant to the jury verdict was thereupon affirmed. The most recently decided case of the Alabama Supreme Court involving a homeowner’s policy exclusion identical to the homeowner’s policy exclusion here and plainly presenting the same issues determined by the Dyer, Portis and Watson courts is Holman v. Ala. Farm Bureau Mut. Cas. Ins., 476 So.2d 107 (Ala., 1985). In Holman the insurer brought a declaratory judgment action seeking a declaration of rights under its homeowner’s policy after its insured (as a member of the insured household) demanded that the insurer defend a tort suit against him. The plaintiff Bruce Carlton in the tort suit against James Holman complained that he was assaulted, beaten, robbed and deprived of property by James Holman on the morning of August 21, 1983. The trial court heard the evidence without a jury in the declaratory judgment action and entered judgment in favor of Farm Bureau denying the insured Holman a defense and coverage in the underlying tort action. The insured appealed. The Supreme Court stated the issue to be: Is there sufficient evidence to support the trial court’s judgment in favor of Farm Bureau? The Holman court wrote to this above quoted issue, deciding that the trial court could reasonably have concluded that James Holman intended to cause bodily injury to Bruce Carlton and damage to Carlton’s property and affirming the judgment of the trial court for the insurer, without citing its previous controlling decision in Dyer, or Portis or Watson. Neither did the Holman court enunciate in its opinion its recognition of the correct legal standard to be applied as pronounced in Dyer, Portis and Watson in weighing the facts shown by the record. These facts were stated to be as follows: On the evening of August 20, 1983, at the Exit Inn, a bar in Tallapoosa County, Bruce Carlton shot three games of pool for money against James Holman. James won two games, but Carlton won the other. In the early morning, Carlton finally left the bar for home. James apparently left soon after. While driving down the highway, James spotted Carlton’s car. Turning to his passenger, Harold Dozier, who testified to these events at trial, James declared “that’s that son of a bitch that took all my money from me.” James followed Carlton. When he caught up to Carlton, he forced him to pull over. When Carlton rolled down his window to speak to his follower, James, without warning, hit Carlton in the face with his fist. In the dark, Carlton could not recognize his attacker; Dozier testified that the attacker was James Holman. James continued to strike Carlton in the face. After six or seven blows to the face, Carlton tried to protect himself by lying down in the car seat. Dozier testified James pulled a gun on him when he tried to help Carlton. James used the gun to strike a blow to Carlton’s head. He then robbed Carlton, set fire to his car, and drove away. Id. at p. 108. The per curiam decision in Holman on the surface seems to rely on Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala. 1976), a case discussed at length in Dyer, with observation by the Dyer court “that our most recent pronouncements interpreting this policy exclusion in Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978), and Boyd v. Great Central Ins. Co., 401 So.2d 19 (Ala.1981), have repudiated the objective standard in Blakeney in favor of a purely subjective standard.” Dyer, 454 So.2d at'924. However, in all fairness to the Holman decision, it should be noted that the court in Holman was not citing Blakeney as authority for the proper standard to be applied in determining the intent of the insured when construing a policy exclusion similar or the same as the policy exclusion involved in Holman. Blakeney was cited in Holman as authority for another, completely dissimilar, principle of law, shown by the following language in the Holman decision: Whether an exclusion like that in Holman’s insurance policy, relating to “bodily injury or property damage which is expected or intended by the insured,” has been violated is a question of fact, and not of law. Hartford Fire Insurance Co. v. Blakeney, 340 So.2d 754 (Ala. 1976). When the trial court is the fact-finder, various presumptions of correctness control. Under the ore tenus rule, when the trial court hears disputed evidence presented ore tenus without a jury, its findings of fact are favored with a presumption of correctness and will not be disturbed on appeal unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence. Stallworth v. First National Bank of Mobile, 432 So.2d 1222 (Ala.1983). 476 So.2d at 108. The Holman court concluded its opinion in these words: We cannot say the trial court’s judgment was clearly erroneous or unsupported by credible evidence. Based upon all this evidence, for the purpose of determining the applicability of the insurance policy exclusion, the trial court could reasonably have concluded that James Holman intended to cause bodily injury to Bruce Carlton and damage to Carlton’s property. Id. at p. 109. This Court has been unable to determine the reason or rationale for the Holman court’s failure to provide the parties litigant and the bench and bar of Alabama with an explanation of the standard employed and applied by that court in determining that the lower court’s declaratory judgment in favor of the insurer, Farm Bureau, was due to be affirmed. Holman did not purport to repudiate or overrule either Dyer, Portis or Watson. One can conclude from a reading and analysis of the decisions that Holman is remarkably similar to Watson. The inexplicable failure of Holman to include a statement therein that the court was bound by its past (and recent) pronouncements of the proper standard to be used to interpret the homeowner’s policy exclusion there under consideration is simply a legal mystery, the solution for which can only be provided by that court. Another Alabama Supreme Court opinion rendered on September 20, 1985 which reaffirmed the rationale, reasoning and pronouncements of Dyer, Watson and North River Ins. Co. is U.S. Fidelity & Guar. Co. v. Armstrong, 479 So.2d 1164 (Ala.1985), which construed a USF & G policy of general liability insurance providing in pertinent part: “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damges to which this insurance applies, caused by an occurrence.” “Occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” U.S. Fidelity & Guar. Co. v. Armstrong, 479 So.2d 1164, 1166-167. In Armstrong, the liability insurer filed a declaratory judgment action to determine insurance coverage for parties engaged in the construction of a sanitary sewer system. The lower court found that USF & G was under a duty to defend in a suit brought by a landowner for damage caused by overflow of raw sewage and would be liable to pay, within the policy limits, any judgment rendered in that action. Testimony at trial indicated that the existing sewer line was intentionally crushed to allow work on a new sewage line to proceed below the existing line. The crushing blocked off the sewage, causing it to back up in the line and overflow through a manhole onto the property of the plaintiff in the property damage action. USF & G argued that all of the acts which caused the sewage overflow — and ultimately the alleged property damage — were intended and that the resulting overflow should have been expected. Thus, concluded USF & G, there was no “occurrence” to invoke policy coverage. In disagreeing with the insurer’s contentions and affirming the judgment of the trial court, the Armstrong court stated: There is a presumption in tort law that a person intends the natural and probable consequences of his intentional acts. However, this presumption has no application to the interpretation of the terms used in the “neither expected nor intended from the standpoint of the insured” coverage clause and the policy term “expected or intended injury” cannot be equated with foreseeable injury. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So.2d 921, 925 (Ala.1984); Smith v. North River Ins. Co., 360 So.2d 313, 315 (Ala.1978). This Court has recently made it clear that the legal standard to determine whether the injury was either expected or intended within this context is a purely subjective standard. Watson v. Alabama Farm Bureau Mut. Cas. Inc. Co. v. Dyer, 454 So.2d 921, 925 (Ala.1984). The insured must have possessed specific intent to inflict the damage to activate this policy exclusion. Watson, 465 So.2d at 396. See also, Hearn v. Southern Life & Health Ins. Co., 454 So.2d 932, 934-35 (Ala.1984). There is no evidence on this appeal to suggest that the defendants specifically intended the discharge of raw sewage onto Ms. Armstrong’s land. A closely analogous case is that of Moss v. Champion Ins. Co., 442 So.2d 26 (Ala.1983). In Moss, a roofer was sued for water damage which occurred while a roof was being replaced. This Court held that while the roof was indeed intentionally removed, the resulting water damage was not intended, and, therefore, that there was an “occurrence” within the general liability policy terms. Armstrong, 479 So.2d at 1167. This Court is fully persuaded that the pronouncements of the Supreme Court of Alabama in Dyer, Watson, Shirah, Portis and Armstrong hereinabove discussed govern the determination by this United States District Court of whether the insured, Edward McIntyre, either expected or intended to inflict bodily harm upon his minor granddaughter, Dawn Marie Yoder, when in a nonviolent way he sexually abused the child on one occasion in the McIntyre home in the summer of 1983 and again on another occasion approximately one year later at the same Alabama location. Moreover, this Court is bound by Alabama law to use and apply a purely subjective standard in making such determination from the evidentiary record in this declaratory judgment action. Under this subjective test, clearly and recently enunciated by Alabama’s highest court in five recently reported decisions, supra, each involving an exclusion clause in a homeowner’s insurance policy which is similar or the same as the exclusion clause in the McIntyre’s homeowner’s insurance policy hereinabove set out or analogous thereto, an injury is “intended from the standpoint of the insured” if the insured possessed the specific intent to cause bodily injury to another, whereas an injury is “expected from the standpoint of the insured” if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act. Furthermore, the law is well settled in Alabama that the question of whether an injury which the insured inflicts upon another is “expected or intended from the standpoint of the insured” is a question of fact for the jury or judge, whichever is the trier of fact. Applying the pronouncements of Dyer and its progeny to the case at bar, the Court concludes and finds after a careful review and analysis of the evidentiary record in this declaratory judgment action, aided by the Court’s close observation of the demeanor of the defendant grandfather, the defendant minor child and her mother throughout the bench hearing and jury trial of the underlying tort action, that defendant Edward McIntyre had no specific intent to cause bodily harm to his minor granddaughter, Dawn Marie Yoder, when he sexually abused her in a nonviolent way on the two occasions in question nor did he subjectively possess at the time of such episodes, or either of them, a high degree of certainty that bodily injury to his minor granddaughter would result from his acts. The Court’s conclusion and finding of fact that Edward McIntyre neither expected nor intended that his nonviolent sexual abuse of his minor granddaughter would cause her bodily harm is buttressed by an absence of direct evidence in this record bearing on such issues (except proof of nonviolent sexual abuse), by the facts heretofore found and related in n. 11, ante, at pp. 1181-1182, by the reasonable inferences which the Court draws from the entire evidentiary record after hearing and seeing all of the witnesses testify firsthand, and by the fact that under applicable and binding Alabama case law the policy term “expected or intended by the insured” in this declaratory judgment action for an interpretation thereof cannot be equated with “foreseeable injury,” Dyer, 454 So.2d at 925, because the presumption in tort and criminal law that a person intends the natural and probable consequences of his intentional acts has no application. Id. CONCLUSIONS OF LAW The Court has subject matter jurisdiction of this declaratory judgment action by reason of diversity of citizenship and amount in controversy. 28 U.S.C. § 1332. Venue and personal jurisdiction are not contested. The remedy of declaratory judgment herein sought is authorized by 28 U.S.C. § 2201. The beginning premise in arriving at a correct legal result in this case is a recognition and adherence to settled principles of Alabama law governing the construction and interpretation of insurance policies containing the “expected or intended from the standpoint of the insured” policy exclusion or the equivalent thereof, i.e., “bodily injury which is expected or intended by the insured,” which is the policy exclusion in the instant case. The Court at pp. 1186-1189, ante, has discussed the Alabama cases which have clearly stated such principles. Its adherence to them in this case produces a result which is discomfiting. Other cases in Alabama’s sister jurisdictions have been faced with the precise or similar question now before the Court with a factual background of sexual abuse of a minor by an adult, sexual assault by an adult of a minor, sexual relations between an adult and a minor and nonconsensual sexual contact with a disabled adult by a counselor, as will be seen from later discussion of those cases herein, with legal results different in some cases from the result which would have been forthcoming had such foreign jurisdiction cases been decided under settled Alabama law. While the Supreme Court of Alabama has not addressed this precise question in the context of sexual abuse of a minor by an adult, or of alleged sexual acts between an adult and a minor of tender years, or of prohibited sexual relations between an adult and a minor child, the judge who is here sitting is thoroughly persuaded by his 31 years of trial and appellate practice in the Alabama courts as a private practitioner and by his 6 (plus) years of federal judicial experience sitting in the Northern District of Alabama that he can reasonably predict the opinion and holding of Alabama’s highest court, when and if faced with this precise question of law in the context of the nonviolent type and content of sexual abuse by an adult of a minor of tender years and attendant facts as involved in the case at bar. BURDEN OF PROOF In this declaratory judgment action by State Auto Mutual Insurance Company against its insureds, defendants Edward McIntyre and wife, Daisy McIntyre, and