Guilty of Child Pornography Crime Cannot Be a Fortuitous Occurrence

Child Pornographer Dies in Jail – Plaintiffs Seek Money from Insurer

Criminal conduct is, by definition, an intentional act. Insurance, by definition, can only provide defense or indemnity to a person sued for tortious conduct if that conduct is fortuitous. It should be impossible for a defendant who pleads guilty to felonious and intentional harm to the plaintiffs to recover either defense or indemnity from a liability insurer.

In “ERIN” and “JANE DOE” as next friend for Minor “FIONA” v. Citizens Insurance Company of Illinois, 18 C 04414, United States District Court Northern District of Illinois Eastern Division (June 4, 2019) Citizens Insurance Company of Illinois’ (“Citizens”) moved the District Court to dismiss Plaintiffs’ “Erin” and “Jane Doe” as next friend for minor “Fiona’s” (collectively, the “Plaintiffs”) first amended complaint.


For purposes of this motion, the Court accepted as true the following facts from the complaint.

Defendant Citizens is the homeowner’s insurance provider for Keith Farnham (“Farnham”).

The Underlying Action

Farnham formerly served in the Illinois House of Representatives from 2009 until 2014. On December 5, 2014, Farnham was indicted and pled guilty to knowingly transporting child pornography. In his plea agreement, Farnham admitted to possessing images and videos depicting child pornography. These images included sex images of both the Plaintiffs. Farnham also admitted to using an email address to receive, trade, and distribute child pornography.

The Plaintiffs’ Civil Lawsuit

Erin and Fiona sued Farnham in the United States District Court for the Northern District of Illinois, alleging, among other things, invasion of privacy. Farnham sought defense and indemnification from Citizens but he was denied coverage. Farnham executed an affidavit, admitting that he traded, distributed and possessed child pornography depicting the Plaintiffs; viewed the child sex images of the Plaintiffs without their consent; intended to invade the privacy of the Plaintiffs; intentionally intruded upon the solitude and seclusion of the Plaintiffs in their most devastating private affairs and concerns; and his intrusion would be highly offensive to any reasonable person.

Farnham also confessed to a $2 million judgment in favor of the Plaintiffs. On June 18, 2017, Farnham died while an inmate at the Federal Medical Center in Butner, North Carolina. Later the district court entered judgement against Farnham for $2 million.  Plaintiffs the sued seeking a declaratory judgment that Farnham’s homeowners’ insurance policy covers the Plaintiffs’ claims and that Citizens must provide defense and indemnification for the Plaintiffs.

Relationship Between Farnham and Citizens Insurance Company of Illinois as Insurer/Insured

Farnham’s Homeowners’ Policy states: “If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will: Pay up to our limit of liability for the damages for which [Farnham] is legally liable …”

The Homeowners’ Policy defines “occurrence” as: “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. ‘Bodily Injury’; or b. ‘Property Damage’”

The Homeowners Policy also contains an exclusion which precludes coverage for “personal injury … caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an ‘insured'” (the “Penal Law Exclusion”).

A claim must be facially plausible, meaning that the pleadings must allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The claim must be described in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, are insufficient to withstand a motion to dismiss.


Whether The Homeowners’ Insurance Policy Covers the Plaintiffs’ Claims

The Plaintiffs contended that the amended complaint is sufficiently pled to trigger Citizen’s duty to defend because they alleged a personal injury caused by an occurrence. Citizens argued that the Plaintiff’s claims are not sufficiently pled because sexual mistreatment of a minor is not an “occurrence” under the Homeowners’ Policy. Moreover, even if the sexual mistreatment of the Plaintiffs constituted a “bodily injury” caused by an “occurrence,” the Penal Law Exclusion precludes coverage.

Sexual Mistreatment of a Minor is not an “Occurrence” Under the Homeowners’ Policy

Fortuity is always required for a policy of liability insurance to respond with a defense. Because Farnham intentionally harmed the Plaintiffs, the insurer argued that there is no “occurrence” which triggers coverage because the injury was not fortuitous.

In cases where the underlying claim involves conduct that results in injuries that are either expected or intended by the insured, the insurance company is absolved from liability because it is believed that the insured acted with specific intent to injure or cause harm to a third party.

The court concluded that the bodily harm did not arise from an occurrence. Farnham admitted in both his criminal case and civil judgment that he “intentionally intruded upon the solitude and seclusion of the Plaintiffs in their most devastating private affairs and concerns.”  Farnham’s actions, by his guilty plea, were obviously intentional and not accidental. The court opined that the “average person purchasing homeowner’s insurance would cringe at the very suggestion that [the person] was paying for such coverage.”

Athough Farnham’s actions were clearly repugnant and crossed every line of human decency, the Plaintiffs have failed to plausibly allege an “occurrence” under the Homeowners’ Policy because the action was not accidental. However, even if the Plaintiffs had plausibly alleged an “occurrence,” their claim would still fail because the Penal Law Exclusion precludes coverage.

The Penal Law Exclusion Precludes Coverage

The Penal Law Exclusion excludes coverage where the “personal injury” is “caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an ‘insured.'”

Count II – Duty to Defend and Indemnify

Count II seeks a declaration ordering Citizens to defend and indemnify the civil judgment entered against Farnham. Because the Plaintiffs’ allegations do not fall within the purview of the Homeowners’ Policy, Count II was dismissed and the suit was dismissed in its entirety.


This decision should have been obvious. I can understand why the plaintiffs tried the suit since the defendant died in prison and could not pay the $2 million judgment. In so doing the plaintiffs and their counsel wasted their time, trouble and expense and the time and effort of the District Court. Federal Court litigation should be limited to cases where there is, at least, a potential for success.

© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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