During the afternoon of March 16, 1985, Karim Talhouni (Talhouni) ingested a quantity of the drug lysergic acid diethylamide (LSD). On previous occasions he had taken LSD and had experienced mild visual hallucinations, mild euphoria, and increased energy. Talhouni had heard of persons who had taken LSD and injured themselves, but he had never heard of anyone on LSD acting violently or causing injury to others. On this day, however, Talhouni was to have his first “bad trip.”
After ingesting the LSD, Talhouni travelled from Belmont to Cambridge. Talhouni had not met Cornelia Pillard or Glenn Scott nor had he ever visited their apartment. Yet, inexplicably, Talhouni was led to their door.
Cornelia Pillard rеadied for an afternoon run. At the time, her roommate, Glenn Scott, was napping. Prepared to depart, Pillard opened the door to her third-floor apartment when she observed Talhouni racing up the stairs toward her. Pillard retreated into her bedroom and barricaded her door. Talhouni continued his approach, entered the apartment and burst into Glenn Scott’s bedroom.
Talhouni was “a wild man out of control.” He was “growling and mumbling in what appeared to be a foreign language.” Talhouni knelt on Scott’s bed. Scott awoke. Talhouni pulled down his pants, exposed his penis and urinated on her. He grabbеd her around the neck, thrashed her head back and forth and pinched her about her breasts and upper extremities. Scott heard him say “kill the bitch” and “the bitch must die.”
In the meantime, Pillard left her bedroom and descended the stairs. Pillard secured the assistance of another tenant, returned to the apartment and entered Scott’s bedroom. The assault was still in progress; they shouted at Talhouni to
After a time, Talhouni escaped Scott’s bedroom, ran down the stairs and crashed through the glass entry door. Officers Gardner and Cromwell of the Cambridge police department had arrived at the scene where they observed Talhouni “thrashing about, ‘like a fish out of water,’ in the broken glass.” In the words of the trial judge, “Talhouni was oblivious to the fact that he was cutting himself, and did not appear to recognize Gardner and Cromwell as police officеrs. The officers extricated him from the glass and strapped him to a stretcher. Talhouni was then transported to Cambridge City Hospital.” 2
At the time of the incident, Karim Talhouni’s mother, Barbara Talhouni, had a contract of insurance (“homeowners” insurance policy) with Hanover Insurance Company (Hanover). Kаrini Talhouni is an insured under its terms. 3 The relevant portion of the policy describing coverage for personal liability provides, “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 coverage apрlies, [Hanover] will . . . pay up to [the] limit of liability for the damages for which the insured is legally liable.” 4 An exclusion clause provides that personal liability coverage “do[es] not apply to bodily injury or property damage . . . which is expected or intended by the insured.”
Cornelia Pillard and Glenn Scott subsequently commenced suit against Karim Talhouni seeking to recover for personal injuries and other damages.
5
Hanover appeared in that civil
This court has considered thе applicability of exclusionary clauses for intentional injury in view of certain types of conduct. See, e.g.,
Quincy Mut. Fire Ins. Co.
v.
Abernathy,
Our relevant cases consist of two strands. The first strand is comprised of cases where we held that an intent to cause injury existed as a matter of law due to the nature of the act. See
Worcester Ins. Co.
v.
Fells Acres Day Sch., Inc.,
The second strand is comprised of cases where the issue of the insured’s intent to cause injury is a question for the fact finder. See
Quincy Mut. Fire Ins. Co.
v.
Abernathy, supra
at 87 (factual question whether insured intentionally sought to injure driver and passenger when he threw a piece of blacktop at their car). In such a case, “the dispositive quеstion is whether ... the [insured] intended, or knew with substantial certainty, that some injury would result from his conduct.”
Kowalski
v.
Gagne,
Hanover relies on cases from the former category, principally Fells Acres, to argue that we should infer the intent to cause injury from the nature of Talhouni’s act and thereby relieve Hanover of any duty to defend and indemnify. We disаgree. Fells Acres is not dispositive as it involved physical acts warranting the inference that the insured intended the resulting harm and did not involve what we believe to be the decisive issue here, i.e., capacity to form intent.
We have previously discussed the relationship between an insured’s mental capacity and ability to form “intent.” See
Baker
v.
Commercial Union Ins. Co.,
Underlying these decisions is the principle that the insurer must show the applicability of the clause excluding coverage for injury or damage intended or expected by the insured. See
McGinnis
v.
Aetna Life & Casualty Co.,
In advancing its theory that we should adopt a special rule covering circumstances where the question of capacity to form intent arises due to voluntary intoxication, Hanover cites appellate decisions from three jurisdictions, Michigan, Minnesota, and Missouri. See
Group Ins. Co.
v.
Czopek,
At least seven other jurisdictions, however, have decided that “intoxication may destroy, for purposes of the exclusion, the capacity to form the requisite intent.”
Group Ins. Co.
v.
Czopek, supra
at 629 & n.25, citing cases. See also Annot., 33 A.L.R. 4th,
supra
at 1000-1001. Considerations warranting this decision include “public interest that the victim be compensated,” and the view that “the victim is aided by the narrowest view of the policy exclusion.”
Burd
v.
Sussex Mut. Ins. Co., 56
N.J. 383, 398 (1970). See
Vappi & Co.
v.
Aetna Casualty & Sur. Co.,
We are persuaded by the arguments underlying the majority rule. The majority rule is consistent with our prior deci
It is unlikely that the rule enunciated today will encourage insured individuals to seek sufficient intoxicants to negate capacity and preclude personal liability for otherwise intentional acts. Indeed, where it could be said that an insured voluntarily indulged in intoxicants “to fortify his resolve to inflict injury” to persons or property, a different result from that which we reach today would likely follow. See Fischer, The Exclusion From Insurance Coverage of Losses Caused by the Intentional Acts of the Insured: A Policy in Search of a Justification, 30 Santa Clara L. Rev. 95, 147 (1990).
Accordingly, the question in the instant case reduces to whether the trial judgе erred in holding that Talhouni did not know with substantial certainty that some injury would result from his conduct. In reaching his conclusion the trial judge found that “[a]t the time of the events in question, [Talhouni] was completely out of touch with reality, was hallucinating and delusional, and did not know that he was assaulting another human being.” There is no error in the trial judge’s finding that Talhouni lacked the capacity to form intent for purposes of the exclusionary clause. Indeed, the trial judge’s decision is supported by the great weight of the evidence.
There is also no merit to the argument that Talhouni took the drug expecting or intending the ultimate result. The trial judge found that “[a]t the time that [Talhouni] took the LSD ... he did not ‘expect or intend’ that he would be affected by the drug in a way that he would assault or hurt another human being.” We see no reason to disturb this finding.
Hanover advances two additional arguments. First, Hanover argues that the trial judge erred in failing to apply the criminal responsibility test оf
Commonwealth
v.
McHoul,
In Baker, the trial judge instructed the jury that the insurer would be liable to the insured only if the jurors believed that the insured was insane at the time the insured committed the act. Baker, supra at 349. The trial judge defined insanity using the McHoul formulation. Id. at 349 n.5. In Baker, we accepted the McHoul formulation as the law of the case and expressed no opinion as to whether it was “the appropriate standard in these circumstances.” Baker, supra at 349-350 n.5.
Later, in Fells Acres, noting the absence of any evidence tending to supрort a conclusion that the insured lacked the capacity to form an intent, we stated, “Nowhere in the record is there a jot of evidence suggesting that the tort defendants were suffering from a mental disease or defect that would render them incapable of forming an intent to harm the . . . plaintiffs.” Fells Acres, supra at 401. Hanоver points to our use of the phrase “suffering from a mental disease or defect” in Fells Acres, notes its presence in the McHoul test and concludes that this suggests our inclination to adopt the McHoul standard for the purposes of the exclusion. We disagree. As noted above, the reference in Fells Acres expressed the view that the parties must present evidеnce indicating that the insured is capable, or incapable as the case may be, of forming the intent to harm.
We need not, however, rest our holding solely on these grounds, for we conclude that the McHoul test is not applicable here. The McHoul test gauges criminal responsibility. The question in the present case is whether Talhouni had the requisite intent to сause the complained-of injuries, thereby relieving Hanover of its duty to defend and indemnify.
Hanover’s final argument concerns the testimony of a psychiatrist on the issue of Talhouni’s capacity to form intent. The psychiatrist testified as to Talhouni’s specific mental state on the date of the event. Hanover argues that the doc
As Talhouni’s capacity to form an intent is the central issue of the dispute, evidence tending to show that capacity did or did not exist is relevant. In the present casе Talhouni’s lack of responsibility was an issue on which expert testimony was properly allowed and probably required. See Baker, supra at 351 n.7. Expert opinion testimony is properly based “on facts of which [the expert] has adequate direct personal knowledge, on facts assumed (as when asked a hypothеtical question) as to which there is evidence in the case, on testimony of witnesses, or a combination of these sources.” P.J. Liacos, Massachusetts Evidence 114 (5th ed. 1981).
In the present case the doctor set forth the factual predicate on which he relied to form his opinion. The doctor testifiеd that he based his opinion on the deposition testimony of Scott, Pillard, and Talhouni, and a medical record from Cambridge City Hospital. But the facts on which the doctor relied, while largely drawn from deposition testimony, were testifed to at trial. There is ample support in the record for the doctor’s testimony. Accordingly, there is no error on this point.
In a collateral evidentiary matter, Hanover argues that the doctor’s opinion testimony is tainted because he “relied” on inadmissible hearsay. We disagree. While the doctor did testify that he was exposed to documentary evidence- not admitted in evidenсe, the doctor did not say he relied on these sources. The doctor
said:
“I reviewed the medical record of the Cambridge Hospital emergency room where Mr. Talhouni was treated, • the testimony of Dr. [Zigelbaum] before the Middlesex Superior Court, the depositions of Glenn Scott, [Cornelia] Pillard, Barbara Tаlhouni, [Karim] Talhouni, a letter from Dr. Theoharides from Tufts, and some — a document labeled supplemental answers of Hanover Insurance Company to plaintiff Glenn Scott’s first set of interrogatories, a psychiatric report on Mr. Talhouni prepared by Dr. [Zigelbaum], and the office notes of Dr. Alan
Judgment affirmed.
Notes
At the time of the incident, Talhouni was eighteen years of age.
Under the pоlicy the “insured” include the policyholder, residents of the policyholder’s house who are relatives and other persons under the age of twenty-one in the care of the policyholder.
In addition to the indemnity provision, the contract contained a provision requiring the insurer to defend the insured in suits brought against the insured for personal injuries or damage to property not excluded from coverage.
In October, 1985, Karim Talhouni was convicted of indecent assault and battery in connection with the March incident.
We have previously held that the term “expected” does not broaden the exclusion beyond acts “intended” by the insured. See
Quincy Mut. Fire Ins. Co.
v.
Abernathy,
The underlying tort suit was tried before a jury who found in favor of plaintiff Scott and awarded her $65,000 in damages. The jury also found in favor of plaintiff Pillard, awarding her $2,000. The court subsequently allowed Talhouni’s motion for judgment notwithstanding the verdict with respect to the Pillard claim because she did not suffer any personal injury. Neither of these claims is at issue on this appeal.