Crime does not have to be charged to be excluded from insurance coverage

While the trial court correctly concluded that the "criminal act" policy exclusion barred coverage for defendant-Boos's conduct toward defendants-Cook and Essex, the court held that the trial court erred in ruling that his conduct toward defendants-Bulko and Zubor did not fall within the exclusion. Thus, the court affirmed in part and reversed in part in this declaratory action to determine the availability of insurance coverage for civil claims Cook, Essex, Bulko, and Zubor brought against Boos, a former sheriff's deputy. It was undisputed for purposes of this case that Boos sexually assaulted Cook, Essex, Bulko, and Zubor while they were in his custody during his employment as a sheriff's deputy. Boos was terminated from his employment, and he pleaded guilty to three counts of CSC II for his actions toward Essex, Cook, and a third inmate who was not a party to this case. He did not face criminal charges for his conduct against Bulko and Zubor. Cook, Essex, Bulko, and Zubor sued the county, the county sheriff and jail administrator, and Boos in federal court, alleging that Boos violated their federal and state constitutional rights and their civil rights under 42 USC § 1983. Plaintiff-MMRMA then filed this case seeking a declaratory judgment that it had no duty to defend or indemnify Boos for the women's federal claims. MMRMA alleged that Boos engaged in criminal sexual contact with the women and that his unlawful conduct toward them was subject to the criminal act exclusion in the policy. The trial court entered a default judgment against Boos after he did not respond to the complaint. The trial court concluded that Boos's actions toward Bulko and Zubor did not fall within the criminal act exclusion due to "the absence of criminal proceedings for his assaults on Bulko and Zubor." However, the court noted that there was "no dispute that Boos's conduct toward these defendants constituted a crime" - CSC II. The trial court determined that the criminal acts were not "proven, admitted or non-contested" within the meaning of the policy because there were no criminal proceedings as to that conduct. The court held that Boos's failure to contest MMRMA's allegations in this case ("specifically the allegation that his conduct with Bulko and Zubor constituted criminal acts within the meaning of the policy") compelled the conclusion that coverage was also precluded as to those defendants. Since the policy did not define the terms "proven," "admitted," or "non-contested," the court referenced dictionary definition and concluded that "non-contested" means "not challenged, disputed, or contended." By virtue of Boos's default, all well-pleaded allegations against him, including that his conduct toward Bulko and Zubor constituted criminal acts, were deemed admitted."Nothing in the language of the exclusion requires that Boos be charged with or convicted of a crime.