SJC Pinpointing Parameters of The ‘Physical Abuse’ Homeowner’s Policy Exclusion in New Decision
The Supreme Judicial Court (“SJC”) has issued its second opinion in less than three years addressing the interpretation of the term “physical abuse” in the abuse and molestation exclusion found in homeowner and commercial liability policies.
In both cases before the SJC, Dorchester Mutual had denied claims arising out of assault and battery incidents, arguing the claims were barred by the physical abuse exclusion contained in the standard homeowner policy.
In this latest case, Dorchester Mutual v. Miville et al. decided, on March 16, 2023, a claimant had sought coverage for serious bodily injuries under a homeowner’s insurance policy issued by Dorchester Mutual. The claimant had been severely beaten in an unprovoked attack by the insureds’ son.
Dorchester Mutual denied coverage, arguing that the incident constituted “physical abuse” under the policy’s abuse and molestation exclusion, and filed a declaratory judgment action seeking a ruling that it had no liability under the policy because of the physical abuse exclusion.
The trial court agreed with Dorchester Mutual, finding that the son’s actions constituted physical abuse under the SJC’s latest decision because the nature of the assault evidenced “a disposition towards inflicting pain and suffering.” However, on appeal, the Appeals Court reversed, concluding that the son’s assault did not qualify as physical abuse because it lacked the necessary “abusive quality” required by the latest SJC case that had established a standard for defining physical abuse as used in the homeowners policy.
After the Appeals Court reversed the trial court, Dorchester Mutual sought further appellate review from the SJC, which the Court granted to clarify its prior decision on the physical abuse decision.
The SJC noted that its previous decision involving Dorchester Mutual had suggested that there might be circumstances where the extremity of conduct may itself render physically harmful conduct “abusive,” its examination of the policy language and other relevant sources leads it to conclude that a reasonable insured would interpret extreme physically harmful conduct to constitute “physical abuse” only where it also embraces a power component.
The SJC affirmed the Appeals Court’s ruling reversing summary judgment for Dorchester Mutual, finding that the son’s actions, while violent and unprovoked, did not qualify as physical abuse under the policy’s exclusion. The court noted that physical abuse requires a showing of more than just an intentional act causing bodily harm; it also requires a showing of abusive behavior beyond physical contact.
Based on its analysis, the Court clarified that, for conduct to constitute “physical abuse” as a reasonable insured would understand the term when reading the language of the abuse and molestation exclusion and the policy as a whole, the conduct must involve an imbalance or misuse of power in addition to being physically harmful.
This decision clarifies the interpretation of the term “physical abuse” in Massachusetts homeowner and commercial liability policies. However, this clarification may set a high bar for insurers to overcome in seeking to avoid liability coverage for bodily injuries resulting from assault and batteries and similar affrays.
The facts of the assault led to the Dorchester Mutual coverage suit
On November 22, 2016, at around 5:45 AM, sixty-one-year-old Leonard Miville (Mr. Miville”) arrived at the home of his girlfriend at 8 Barr Street, Salem, to drive her to work. When Barrett did not answer the door, Mr. Miville stood on the sidewalk between 8 and 10 Barr Street looking up to her bedroom window.
At the same time, William Brengle (“William”), age thirty, went out onto the front porch of his family residence at 10 Barr Street, where he lived with his mother and father, to smoke a cigarette. Mr. Miville observed William on the front porch. When William saw Mr. Miville standing on the sidewalk in front of the Bengles’ house, he yelled an obscenity and challenged Mr. Miville about what he was doing there.
Mr. Miville identified himself as the boyfriend of William’s next-door neighbor and stated that they had previously met. William yelled at Mr. Miville to leave the area and referred to Mr. Miville as “evil.” Mr. Miville then urged William to be quiet because he was disturbing the neighborhood.
According to Mr. Miville, William then jumped off the porch without warning, skipping steps, and “sucker punched” him in the face, striking his left eye and cheek. After being struck by William, Mr. Miville retreated, tripped, and struck his head on the pavement.
While Mr. Miville was lying on the ground, William continued to kick him in the jaw, shoulder, and left leg with his shod foot, even as Mr. Miville pleaded with William to stop. As a result of the kicks, Mr. Miville lost consciousness and remembered nothing more until he woke up with a police officer bending down over him, trying to ask questions about the assault and his condition.
Mr. Miville’s account of the attack to the police was that it was completely unprovoked. At no point prior to getting struck in the face had he moved from his position on the sidewalk in front of the driveway between his girlfriend’s house and William’s house. He never walked toward the William house nor raised his hands against William’s sudden assault.
A disinterested eyewitness (“witness”), living directly across the street from the William residence, confirmed Mr. Miville’s recollection of the incident.
The witness and his wife were awakened by shouting from across the street from their house. He observed Mr. Miville standing in front of the staircase leading to the William home’s porch from the window of his spare bedroom. William remained on the porch during an argument between Mr. Miville and William, while Mr. Miville remained on the sidewalk.
The witness saw Mr. Miville walk towards the driveway of his girlfriend’s residence after having words with William for a few minutes. As Mr. Miville turned towards the next house, William rushed off the porch and struck Mr. Miville in the eye with his fist, knocking him unconscious as the witness watched. The witness observed that Mr. Miville had his arms at his sides when William struck him.
After William punched him, the witness saw Mr. Miville collapse and fall straight to the ground, “out cold,” hitting his head. William had punched Mr. Miville so hard that the witness heard the sound of the punch from inside his house with closed windows and described it as a “bone crack.” The witness then saw William kick Mr. Miville, lying inert on the ground, several times.
After the police arrived, Mr. Miville was taken to the hospital, where he was diagnosed as having fractured cheek and orbital bones, along with other bruises and contusions.
Although he had fled the scene before the police arrived, the Salem Police subsequently arrested William and charged him with two felonies: assault and battery on a person over sixty and assault and battery with a deadly weapon, to wit: “a shod foot.”
Later investigation revealed that William claimed to have no recollection of the incident. His medical history showed that he had previously been clinically diagnosed with schizoaffective and bipolar disorders.
These conditions manifested in William as anger, an inability to control emotions, a belief that he was God, and hallucinations. Despite these symptoms, William had no history of violence or abuse prior to his assault on Mr. Miville.
Eight months after the assault and after a commitment for a mental evaluation, William pleaded guilty to both charges and was placed on probation for three years. He completed his probation without incident, and his probation was terminated on June 26, 2020.
The Dorchester Mutual Policy and the undefined exclusion for “physical abuse
Dorchester Mutual issued a homeowners’ insurance policy to William’s parents for the period of April 25, 2016, through April 25, 2017.
The policy provided personal liability coverage for claims “brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies.” Occurrence,” as used in the insuring agreement, meant “an accident, . . . which results, during the policy period, in: . . . ‘[b]odily injury.’”
The term “Insured” under the policy included the named insureds and the “residents of [the policyholders’] household who are . . . relatives. Dorchester Mutual did not dispute that William was an “insured” under the policy.
While the policy contained multiple exclusions from personal liability coverage, the main exclusion at issue was the abuse and molestation exclusion, which excluded coverage for “‘[b]odily injury’ . . . arising out of sexual molestation, corporal punishment or physical or mental abuse.”
While the policy listed ‘physical abuse’ as a trigger for the abuse and molestation exclusion to apply, nowhere in the policy did it define the term.
Declaratory judgment and negligence suit defended under reservations of rights
On April 27, 2017, upon learning that William’s parents had homeowners insurance with Dorchester Mutual, Mr. Miville filed a demand for settlement with Dorchester Mutual asserting, based on Williams’ actions, he had the right to compensation for his medical expenses, lost wages, and conscious pain and suffering.
Dorchester Mutual denied Mr. Miville’s claim based primarily on the policy’s physical abuse exclusion. Then, without waiting for Mr. Miville to file suit against its insureds, Dorchester Mutual preemptively filed, on June 19, 2017, a declaratory judgment in Essex Superior Court. Its initial suit only sought a declaration against William and Mr. Miville that it had no obligation to indemnify or defend William from any loss associated with William’s assault against Mr. Miville.
After Mr. Miville sued William and his parents, alleging claims of negligence, assault, and battery against William and negligent supervision against his parents, Dorchester Mutual added William’s parents to the declaratory judgment as defendants. However, notwithstanding its declaratory judgment action against them, Dorchester Mutual provided the insureds a defense to Mr. Miville’s lawsuit under a reservation of rights.
Dorchester Mutual’s declaratory judgment reaches the SJC after split decisions
In the Superior Court, Dorchester Mutual filed a motion for summary judgment, arguing that under the terms of the policy, it had no duty to defend or indemnify William or his parents for the personal injury claims brought against them by Mr. Miville.
In particular, it argued that the just-decided SJC case involving Dorchester Mutual and the physical abuse exclusion applied. This SJC decision held that the physical abuse exclusion would only apply 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.”
Dorchester Mutual contended that William’s unprovoked attack was so egregiously aggressive that it triggered the physical abuse exclusion because it demonstrated William’s “disposition toward inflicting pain and suffering” against Mr. Miville. Dorchester Mutual argued this disposition satisfied the “physical abuse” condition under the terms of the abuse and molestation exclusion in the policy.
The Superior Court judge agreed with Dorchester Mutual’s analysis of the SJC decision and its application to the physical abuse exclusion barring any coverage for Mr. Miville’s claims.
Mr. Miville appealed to the Appeals Court. A three-judge panel of that Court ruled the exclusion did not apply under the SJC’s latest formulation of the physical abuse exclusion and reversed the Superior Court’s summary judgment.
After the Appeals Court reversed the trial court’s ruling, Dorchester Mutual sought further appellate review from the SJC, which the Court granted to clarify its prior decision on the physical abuse exclusion.
The Court’s review of “physical abuse” in the historical context of the abuse and molestation exclusion
In deciding Dorchester Mutual’s further appeal, the SJC started from the historical genesis and purpose of the abuse and molestation exclusion.
The Court noted that the abuse and molestation exclusion was introduced in 1987 by the Insurance Services Office, Inc. as a form of endorsement for insurers to include in their general liability policies.
This exclusion was a response to the insurance industry’s concerns about the increasing number and cost of claims related to child abuse, which often involved a power imbalance between the perpetrator and the victim. Existing policy exclusions for intentional acts were insufficient to shield insurers from coverage obligations for claims brought against organizations responsible for employing or supervising accused abusers under theories of negligent supervision or negligent hiring.
This new exclusion aimed to preclude coverage for all claims arising out of abuse or molestation, particularly in organizations that had care or custody of others, such as schools, hospitals, nursing homes, daycare centers, and other similar institutions.
The abuse and molestation exclusion origin highlighted to the Court the specific context in which this exclusion was developed and its intended application.
Based on this context, the Court suggested the exclusion implies an interpretation of “physical abuse” that requires a power element to reflect the original intent to address cases where there is a misuse or exploitation of power, typically in an institutional setting.
This interpretation of the basis of the abuse and molestation exclusion as necessitating an “abusive quality” that includes a power element is how the SJC applies the exclusion.
The Court’s conclusion limiting “physical abuse” to situations involving a power imbalance
The Court’s final decision concluded that by understanding the origin of the abuse and molestation exclusion, its purpose was to address situations where there was a misuse or exploitation of power, typically within an institutional setting.
Based on this understanding, the SJC clarified that for conduct to constitute “physical abuse,” as a reasonable insured would interpret it within the context of the abuse and molestation exclusion and the policy as a whole, the conduct must involve both physical harm and an imbalance or misuse of power.
The Court recognized that it had suggested in its prior Dorchester Mutual case involving the physical harm exclusion that there might be cases where the extremity of conduct could itself render physically harmful conduct “abusive.” However, the Court’s further examination of the policy language and the relevant history indicated that a reasonable insured would interpret extreme physically harmful conduct as “physical abuse” only when it also involves a power component.
Court applies clarified meaning of “physical abuse to Dorchester Mutual’s exclusion
Applying this refinement to the meaning of “physical abuse” as requiring an imbalance or misuse of power, the Court found that the physical abuse exclusion did not apply in this case.
The Court noted that while William’s attack on Mr. Miville was unprovoked and inexplicable, it did not involve exploiting or misusing power. The Court found Dorchester Mutual’s argument “unconvincing” that the age gap between William and Mr. Miville created a physical power imbalance that rendered the attack “physical abuse.”
Therefore, in the Court’s opinion, a reasonable insured would not expect the abuse and molestation exclusion to preclude coverage for Mr. Miville’s claims against William and his parents.
The final order of the SJC
In conclusion, the summary judgment in favor of Dorchester Mutual is reversed, and the matter is remanded for further proceedings consistent with this opinion.
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Owen Gallagher
Insurance Coverage Legal Expert/Co-Founder & Publisher of Agency Checklists
Over the course of my legal career, I have argued a number of cases in the Massachusetts Supreme Judicial Court as well as helped agents, insurance companies, and lawmakers alike with the complexities and idiosyncrasies of insurance law in the Commonwealth.
Connect with me directly, by calling me at 617-598-3801.
