448 Mass. 1 | Mass. | 2006
We granted an application for direct appellate review to determine whether an exclusionary provision in an insurance policy issued by the defendant, First Financial Insurance Company (First Financial), applies to preclude coverage of a judgment obtained by Jane Doe against First Financial’s insured, Robert Fuller.
1. Background. Jane Doe’s claims stem from an incident that occurred on the night of July 14, 1995. Doe had gone to 434 Dudley Street in the Roxbury section of Boston to visit a friend. While entering the apartment building, Doe was approached from
As the owner of 434 Dudley Street, Fuller carried a general liability insurance policy from First Financial. First Financial, however, declined to defend Fuller from Doe’s claims on the basis of exclusions contained in the policy.
“It is agreed and understood that this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of any such act, whether caused by or at the instigation or direction of the ‘insured,’ his employees, patrons or any other person.”
Subsequent to learning that First Financial declined to defend or indemnify him in Doe’s action, Fuller settled the case with
“Judgment shall enter for the Plaintiff, Jane Doe, on Count I of her Complaint in the amount of Two Million ($2,000,000) Dollars, of which One Million ($1,000,000) Dollars is found to be attributable to damages arising from the physical beating, stabbing and attempted murder of the plaintiff, and One Million ($1,000,000) Dollars is found to be attributable to damages arising from the rape and kidnapping.”
Conceding that the portion of the judgment attributed to “physical beating, stabbing and attempted murder” was excluded from coverage, Doe stepped into the shoes of Fuller in the present case to argue that the insurance policy did not exclude coverage for the half of her judgment that was attributable to rape and kidnapping.
According to Doe, the rape and kidnapping claims are not included in the exclusion of coverage for injuries arising out of assault or battery.
First Financial responds that under Massachusetts law, every rape necessarily includes an assault or a battery or both. It argues that the exclusionary provision applies to Doe’s case because rape and kidnapping are particular types of assault or battery. First Financial contends that this view is supported by
2. Standard. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The parties produced a statement of agreed facts and exhibits in the Superior Court, leaving no material facts in dispute. The interpretation of an insurance contract is a question of law. See Home Ins. Co. v. Liberty Mut. Fire Ins. Co., 444 Mass. 599, 601-602 (2005); Chenard v. Commerce Ins. Co., 440 Mass. 444, 445 (2003).
3. Analysis. We are called on to interpret particular language in First Financial’s policy, namely, whether Doe’s judgment for damages attributable to her rape and kidnapping falls within the policy’s exclusion that “this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of assault or battery.”
In Bagley v. Monticello Ins. Co., 430 Mass. 454 (1999), the
The Bagley decision cited favorably to “cases interpreting the phrase ‘arising out of’ in insurance exclusionary provisions” that “suggest a causation more analogous to ‘but for’ causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff’s suit, in the absence of the objectionable underly
We need not reach Jane Doe’s argument that rape and kidnapping are separable and independent crimes not synonymous with assault or battery in the common understanding of insured persons. Whether that is true or not does not change the application of the broad causal interpretation mandated by the Bagley case — Doe’s injuries attributable to her rape and kidnapping arose out of the initial assault, i.e., Furrowh’s verbal threat to Doe of, “You’re coming with me,” and the initial battery, i.e., Furrowh’s placement of a knife to Doe’s back.
4. Conclusion. For the reasons stated, the exclusion of the First Financial policy applies to the judgment obtained by Doe in the underlying action for damages attributable to her rape and kidnapping. The judgment of the Superior Court is affirmed.
So ordered.
Although the application for direct appellate review was submitted in the name of Robert Fuller, Jane Doe is the only active plaintiff in this case on appeal, maintaining Fuller’s name in the caption for the sake of clarity. Fuller assigned his interest in this case to Doe as a result of settlement of the underlying lawsuit in the Superior Court, as explained herein.
First Financial initially founded its denial in the “sexual action” exclusion as well as the “assault and battery” exclusion of its policy. The “sexual action” exclusion states:
“It is understood and agreed that coverage for ‘bodily injury’ and ‘property damage’ is not provided nor will the Company have any duty to defend for claims, accusations, or charges brought by or against any ‘insured(s)’ including employees of the ‘insured(s)’ for actual or alleged sexual action, sexual abuse, or employment related claims, accusations or charges. It is understood and agreed that coverage for ‘bodily injury’ and ‘property damage’ is not provided nor will the Company have any duty to defend for claims, accusations or charges of negligent hiring, investigation, placement, training or supervision arising from actual or alleged sexual action, sexual abuse or employment related claims, accusations or charges.”
First Financial does not contest the Superior Court judge’s ruling that this exclusion does not encompass rape and kidnapping by a third party initiated on the insured’s property.
We acknowledge the amicus brief of the Victim Rights Law Center.
All Doe’s damages, including her emotional injuries and her need for psychotherapeutic care, fall under the definition of “bodily injury” for the purposes of an insurance contract. See United Servs. Auto. Ass’n v. Doe, 58 Mass. App. Ct. 743, 744-745 (2003), and cases cited. The nonphysical harm to Doe constitutes “bodily injury” because it directly resulted from the corporeal harm that she suffered at the hands of her attacker. Richardson v. Liberty Mut. Fire Ins. Co., 47 Mass. App. Ct. 698, 702-703 (1999). Thus, the nature of Doe’s injuries do not remove her claims from the exclusions of First Financial’s insurance policy.
The slight difference in language between the phrase “arises wholly or in part out of” in Bagley v. Monticello Ins. Co., 430 Mass. 454, 456 (1999), and “arising out of” in First Financial’s pohcy is inconsequential. In Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., 419 Mass. 316 (1995), cited in the Bagley case, we contrasted the defendant’s more narrow exclusionary language with an insurance pohcy from a Connecticut case that is nearly identical to First Financial’s pohcy exclusion. Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., supra at 320-321 n.4, citing Kelly v. Figueiredo, 223 Conn. 31, 32 (1992). In so doing, the result of United Nat’l Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 70-71 (1999), which upheld the broad exclusionary effect of the “arising out of” language, was foreshadowed.
The insurance pohcy at issue in Bagley v. Monticello Ins. Co., supra at 456, also contained, inter aha, an assault and battery exclusion. Because we ruled that the plaintiff’s claims were barred from coverage under the illegal acts exclusion, id. at 455, there was no need to interpret the assault and battery exclusion in that case.
We read the phrase “arising out of” broadly, but do so in a different sense than was required in Bagley v. Monticello Ins. Co., supra. For the purposes of the Bagley case, we read the phrase expansively to reject the argument that the plaintiff’s claim did not “arise out of” an illegal act because her pleaded claim concerned negligence of the motel. In this case, the breadth of the phrase refers to the chronological unfolding of events during a single criminal episode. Given the general rule that the phrase “arising out of” is to be read broadly, there is no conflict in these differing applications. This is especially true in light of the source of the interpretative rule cited by the Bagley case, Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996), which was interpreting the phrase in a similar manner. In that case, the plaintiff was denied insurance coverage for injuries allegedly “arising out of the ownership, maintenance or use of an auto” where he was battered by another driver following an automobile accident. Id. at 704. While we interpreted the phrase “arising out of” broadly, we interpreted the battery to be “sufficiently independent of the motor vehicle accident” so as to not be covered. Id. at 707. The initial assault and battery on Doe was not similarly detached from the subsequent rape and kidnapping and consequent injuries. Cf. Mass. R. Crim. P 9 (a) (1), 378 Mass. 859 (1979) (allowing joinder where related offenses “are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan”).
Assault and battery are common-law crimes with penalties prescribed in G. L. c. 265, § 13A. Assault is defined either as an attempt to use physical force on another, or as a threat of use of physical force. See Commonwealth v. Gorassi, 432 Mass. 244, 247-248 (2000), and cases cited. Harmful battery consists of “[a]ny touching ‘with such violence that bodily harm is likely to result ....’” Commonwealth v. Burke, 390 Mass. 480, 482 (1983). Battery