Metropolitan News-Enterprise


Thursday, June 4, 2009


Page 1


C.A. Limits Liability of Foster Home Insurance Fund


By STEVEN M. ELLIS, Staff Writer


A child who was molested by his foster mother’s stepson cannot collect from a state fund established to cover claims against foster parents arising from the foster-care relationship, this district’s Court of Appeal ruled yesterday.

Div. Four held that state law unambiguously bars claims against the Foster Family Home and Small Family Home Insurance Fund for any losses arising from a criminal act, whether committed by the foster parent or a third party.

The child, identified as Brandon S., sued after the fund declined to cover a $250,000 negligent supervision judgment he obtained against his former foster mother.

Brandon—then 12 years old—was placed in a licensed foster home operated by Monique K. in 2003, where the woman’s then-13-year-old stepson, Eric B., molested him and two other boys.

Eric admitted committing a lewd act on a child under 14 years of age after being arrested in 2004, and the Department of Social Services revoked Monique’s license, finding that she provided negligent supervision for the children under her care.

However, when Brandon sought damages from the fund for “[e]motional and physical injuries” arising from the molestation, the fund denied his claim, relying on Health and Safety Code Sec. 1527.3(a).

The statute provides that the fund is not liable for “[a]ny loss arising out of a dishonest, fraudulent, criminal, or intentional act,” and Los Angeles Superior Court Judge Elihu M. Berle ruled that the statutory exclusion applied to claims arising from a third party’s criminal conduct.

On appeal, Brandon contended that the exclusion should be construed to bar claims arising only from criminal conduct of a foster parent, but Justice Thomas L. Willhite Jr., joined by Presiding Justice Norman L. Epstein and Justice Nora M. Manella, disagreed.

Writing that the fund was created in response to the inability of foster parents to obtain insurance for claims arising from foster parent activities, Willhite noted that the Legislature expressly tied specified exclusions in four other subdivisions to conduct by the foster parent.

“That the Legislature did not so limit the exclusion of subdivision (a) suggests that the omission was intentional,” he opined.

The justice also commented that nothing in the relevant legislative history supported Brandon’s interpretation of the statute, and said that the court’s conclusion was supported by the Legislature’s enactment of Insurance Code Sec. 676.2 when it created the fund.

That section, now Sec. 676.7, was intended to ensure that foster parents would have access to “homeowner’s, tenant’s, and liability insurance, including liability coverage for the type of claim involved here,” he said.

Willhite added that the Legislature “thus fully expected foster parents to obtain insurance, including liability insurance, for foster care activities…and did not intend the Fund to be a substitute for that insurance if the sole reason coverage was unavailable was the foster parent’s failure to obtain it.”

The justice then rejected Brandon’s contention that excluding coverage for claims based on negligent supervision by a foster parent resulting in injury by third-party criminal conduct was “bad law, bad policy and bad for those directly affected.”

He explained:

“Although legitimate policy questions are raised by the legislative decision to exclude coverage for a claim like Brandon’s, we decline to rewrite the statutory language and depart from governing principles of statutory construction to reach the result Brandon seeks. That is a task for the Legislature.”

In a separate portion of the opinion, Willhite also opined that Brandon had forfeited an equal protection challenge to the exclusion based on its allegedly different treatment of children placed in licensed foster homes from those placed in certified foster homes. He further declined the child’s request to recalculate the damages award.

The case is Brandon S. v. The State of California ex rel. Foster Family Home and Small Family Home Insurance Fund, B196249.


Copyright 2009, Metropolitan News Company