2 Mass. App. Ct. 901 | Mass. App. Ct. | 1974
The plaintiff, the insured under a so-called “Massachusetts Homeowners Policy” issued by the defendant, has appealed from a final declaratory decree adverse to his contention that the defendant had been obligated to defend him in an action of tort brought against him by one Barbara Lipson (Barbara). The policy afforded coverage against liability for “damages because of bodily injury” but specifically excluded from that coverage “bodily injury . . . caused intentionally by . . . the [ijnsured.” The allegations (never amended) of the single count of Barbara’s declaration against the plaintiff accused him of a violent and vicious assault and battery on her, conduct clearly excluded from the coverage of the policy. Compare Sontag v. Galer, 279 Mass. 309, 312-313 (1932); Bowen v. Lloyds Underwriters, 339 Mass. 627, 629 (1959); see Sabatinelli v. Butler, 363 Mass. 565, 567-568 (1973). The defendant, upon receipt of a copy of the declaration, properly disclaimed liability under the policy. Fessenden School, Inc. v. American Mut. Liab. Ins. Co. 289 Mass. 124, 130 (1935). Magoun v. Liberty Mut. Ins. Co. 346 Mass. 677, 681 (1964). Vappi & Co. v. Aetna Cas. & Sur. Co. 348 Mass. 427, 430 (1965). Massachusetts Turnpike Authy. v. Perini Corp. 349 Mass. 448, 457 (1965). The record is devoid of evidence which would support an inference that the plaintiff ever advised the defendant, at any time prior to the settlement of the action brought by Barbara, of his present (and still somewhat inarticulate) contention that his conduct toward Barbara had been other than intentional. Indeed, no real effort was made, even in these proceedings, to provide factual support for such a dubious contention.
Final decree affirmed.
