Opinion
21-P-656
04-13-2022
DORCHESTER MUTUAL INSURANCE COMPANY v. William BRENGLE & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from an incident in which William Brengle attacked Leonard Miville without provocation or warning. Dorchester Mutual Insurance Company (Dorchester Mutual), which insured Brengle's parents, brought this declaratory judgment action to determine whether the Brengles’ homeowner's insurance policy requires Dorchester Mutual to indemnify or defend the Brengles in Miville's personal injury action. Miville sued Brengle for assault and battery and negligence, and Brengle's parents for negligent supervision of Brengle. This appeal asks us to decide whether an exclusion in the Brengles’ policy, of coverage for claims of "[b]odily injury ... arising out of sexual molestation, corporal punishment or physical or mental abuse," applies. The motion judge concluded that it does and granted summary judgment in Dorchester Mutual's favor; we disagree and reverse.
Background. The facts are undisputed, and we draw them from the summary judgment record, which includes the underlying complaint. On November 22, 2016, Miville, then sixty-one years old, was walking toward his girlfriend's home, while Brengle was outside his residence next door to the girlfriend's home. It was very early in the morning, around 5:45 A.M. Brengle started yelling at Miville, and, unprovoked, then leapt down the steps from his front porch and charged at Miville without warning, violently assaulting him. Brengle punched Miville in the face, knocking him to the ground, and then kicked him several times with a shod foot. Miville sustained severe injuries from the incident, including multiple facial fractures.
The homeowner's insurance policy issued by Dorchester Mutual to Brengle's parents provides "personal liability" coverage for a claim or lawsuit "brought against an ‘insured’ for damages because of ‘bodily injury’ ... caused by an ‘occurrence’ to which this coverage applies." Brengle is an "insured" under the policy because he is related to his parents and a resident of their household. An "occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in ... ‘[b]odily injury.’ " A provision called "Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse" excludes coverage for claims of " ‘[b]odily injury’ ... arising out of sexual molestation, corporal punishment or physical or mental abuse." The policy does not define "physical abuse."
Discussion. In support of the summary judgment, Dorchester Mutual argues that the "physical abuse" provision in the abuse and molestation exclusion precludes coverage for Miville's injuries. We disagree. In Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 433 (2020) (Krusell ), the Supreme Judicial Court (SJC) interpreted identical language in a similar policy and held that it did not apply to a situation where the assailant intentionally pushed someone with whom he had no relationship, and whom he had just met, causing him to fall and sustain serious injuries. The SJC noted that insurers’ rationale for including the "Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse" exclusion was "to shield themselves from liability for abuse or molestation claims where they unexpectedly could not rely upon the intentional acts exclusion to preclude coverage," id. at 443, and concluded that the term "physical abuse" applies "only to a limited subset of physically harmful treatment, where the treatment is characterized by an ‘abusive’ quality such as a misuse of power or, perhaps, conduct so extreme as to indicate an abuser's disposition towards inflicting pain and suffering." Id. at 446. "[T]he mere fact that the conduct at issue was physically harmful does not suffice to render it ‘physical abuse.’ " Id. at 444.
We review the grant of summary judgment de novo. See Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 435 (2020).
Here, there is no imbalance or misuse of power, as there was no relationship between Brengle and Miville. Contrast Commonwealth v. Cruz, 88 Mass. App. Ct. 206, 208-210 (2015) (sufficient evidence of abuse and neglect where defendant caretaker wantonly and recklessly failed to provide adequate care to elderly mother, who died of sepsis as a result). While the SJC does not require an imbalance of power to conclude that conduct constitutes physical abuse, Dorchester Mutual has failed to show that the attack on Miville was more than a single, physically harmful encounter. There are no facts that demonstrate that Brengle's conduct had an "abusive" quality, such as a misuse of power, that would distinguish the attack from a "simple assault." Krusell, 485 Mass. at 444.
Dorchester Mutual attempts to rely on the SJC's statement in Krusell, supra at 446, that, "perhaps, conduct so extreme as to indicate an abuser's disposition towards inflicting pain and suffering" could constitute "physical abuse" under the policy. We are not persuaded. While Brengle's conduct in this case may be more extreme than the conduct in Krusell, we cannot conclude that it was "physical abuse." This was a simple assault between two strangers, which is not "abuse." Compare Riley v. Maison Orleans II, Inc., 829 So. 2d 479, 490-491 (La. 2002) (abuse and molestation exclusion did not bar coverage for nursing home when resident attacked another resident with pipe).
Having determined that the abuse and molestation exclusion does not bar coverage for Miville's claims, we conclude that Dorchester Mutual has a duty as a matter of law to defend and, if necessary, indemnify the Brengles in Miville's personal injury suit. See Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass. 352, 357 (2011), quoting Billings v. Commerce Ins. Co., 458 Mass. 194, 200-201 (2010) (duty to defend arises when complaint shows, "through general allegations, a possibility that the liability claim falls within the insurance coverage"); Boston Symphony Orch., Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 10 (1989) (duty to indemnify arises when judgment within policy coverage is rendered against insured). The judgment entered in favor of Dorchester Mutual is reversed, and the case is remanded for entry of a new judgment in favor of the defendants consistent with this memorandum and order.
"We may order entry of summary judgment against the moving party under Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002), where there is no genuine issue of material fact and the parties have had an adequate opportunity to address the issues." Hale v. Elco Admin. Servs., 69 Mass. App. Ct. 878, 884 n.10 (2007). See Thattil v. Dominican Sisters of Charity of the Presentation of the Blessed Virgin, Inc., 415 Mass. 381, 385 (1993).
So ordered.
reversed and remanded