Opinion
No. 07-P-567.
06-09-2008
D.A.C. v. EASTGUARD INSURANCE COMPANY.
Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
1 This is an action brought by the plaintiff, D.A.C., to reach and apply the proceeds of a homeowner's policy issued by Eastguard Insurance Company's (Eastguard) predecessor in interest, see note 3, supra, to Stephen Abbott. A motion judge, on Eastguard's summary judgment motion, dismissed the action, concluding that: (1) the action was untimely; and (2) the policy did not provide coverage. (Memorandum at A. 339A-339G) We affirm. In March, 1992, Abbott, while at his home, found himself alone with D.A.C.'s minor son, J.B.C. After drinking a number of beers, Abbott raped J.B.C. In February, 1993, he pleaded guilty to two counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen. D.A.C., individually and as J.B.C.'s next friend, then filed a civil action against Abbott; Abbott, insured under a homeowner's policy issued by Eastguard's predecessor (A.154-168), demanded that Eastguard defend and indemnify. On March 29, 1993, Eastguard's predecessor declined to provide a defense, specifically noting that: "[C]overage under the ... Policy does not apply to ... Abbott since an injury which results from a volitional act is not an occurrence or accident if the insured intended to cause the resulting harm or was substantially certain that such harm would occur. The acts alleged against Mr. Abbott, rape, sexual abuse and assault and battery, by their very nature are acts intended to cause harm. Accordingly, no defense will be afforded to Mr. Abbott under the provisions of Policy." (A. 169; see also 171-172) In November, 1996, Abbott stipulated to liability in D.A.C.'s civil action; judgment entered in 1997 for J.B.C. ($250,000) and D.A.C. ($50,000) against Abbott. In June, 2000, Abbott settled with D.A.C., assigning to him any rights Abbott might have had under his homeowner's policy. In October, 2002, D.A.C. filed the present action, generally alleging that Eastguard's predecessor breached the policy and violated G.L. c. 93A and G.L. c. 176D by refusing to defend and indemnify Abbott in the underlying action. D.A.C. also asserted a claim to reach and apply the policy's proceeds. The motion judge, on Eastguard's summary judgment motion, generally concluded that any claim for breach of contract or c. 176D or c. 93A violations accrued in 1993 when Eastguard's predecessor unequivocally denied its obligation to either defend or indemnify. Accordingly, the judge held, Abbott's assigned claims were barred by the statute of limitations. As to the reach and apply claim, the judge held that because the policy explicitly disclaimed coverage for bodily injury "which is expected or intended by the insured," and because an intent to cause injury exists as matter of law in such cases, D.A.C. could not reach and apply the proceeds to satisfy his civil judgment against Abbott. (A.339D-339F) See Ideal Fin. Servs. Inc. v. Zichelle, 52 Mass.App.Ct. 50, 57, 750 N.E.2d 508 (2001). D.A.C. argues, on the limitations issue, that Abbott's claim for breach of the duty to defend did not accrue until 1997 (when judgment entered against Abbott), and that his claim for breach of the duty to indemnify did not accrue until 2000 (when Abbott and D.A.C. settled). Before those dates, D.A.C. argues, Eastguard could have provided a defense or indemnified and, thus, Abbott's claims, filed in 2002, were timely. Otherwise put, D.A.C.'s basic argument is that Eastguard's duties to defend and indemnify were continuing or severable, and that they were, in essence, breached each and every day that Eastguard neither defended nor indemnified. Compare Flannery v. Flannery, 429 Mass. 55, 58, 705 N.E.2d 1140 (1999) (severable alimony installments due within statute of limitations period could be recovered). We conclude that this argument is without merit. See Lumbermens Mut. Cas. Co. v. Y.C.N. Transp. Co., 46 Mass.App.Ct. 209, 214, 705 N.E.2d 297 (1999) (claim for action on insurance contract accrues when insured receives notice that insurer disclaims any obligation to defend or indemnify). See also and compare, e.g., Bovarnick v. Fleet Natl. Bank, 65 Mass.App.Ct. 904, 906 n. 6, 840 N.E.2d 549 (2006) ("cause of action accrued and the statute of limitations began to run when the plaintiffs knew or should have known the accounts were closed by the bank, not when they presented the books for payment many years later"). The reach and apply action is likewise time-barred. Because Abbott's claims are time-barred and he cannot recover under the policy, there is no claim from which D.A.C. may now reach and apply; D.A.C.'s rights do not exceed Abbott's. See Ideal Fin. Servs., Inc. v. Zichelle, supra at 67, 750 N.E.2d 508. 2 Judgment affirmed.