This section contains the nature of the case and procedural background.

D was insured under a homeowner's policy issued by P. D and R.W. (D1), both adults, voluntarily engaged in sexual intercourse at D's home. Later that month, D1 was diagnosed as having genital herpes. D1 claims that D negligently transmitted herpes to her through their sexual intercourse. D asserts that he did not know that he had herpes at the time that the couple engaged in intercourse. D tendered the defense to P which declined coverage and subsequently commenced a declaratory judgment action. P was granted summary judgment, and the complaint was dismissed. D appealed.

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