Heart November 7, 2016
action commenced in the Superior Court Department on May
case was heard by Robert A. Cornetta, J., on motions for
Richard J. Fallon for Ryan Casey.
M. Orlando, Jr., for Evan Williams.
P. Graceffa for the plaintiff.
Present: Cypher, Massing, & Sacks, JJ.
on the same evening, after consuming alcohol and marijuana,
Ryan Casey attacked Evan Williams without warning, punching
and kicking him in the face and causing him serious bodily
injury. Casey later admitted that he "intend[ed] to
touch" Williams, and that he understood, at least at the
time of his deposition, that "[w]hen you hit somebody
with a fist . . . you know you're going to do some level
of injury." Williams subsequently made a claim under the
homeowners insurance policy on Casey's familial home. The
insurer, Liberty Mutual Fire Insurance Company (Liberty
Mutual), responded by commencing this action seeking a
declaration that it had no duty to defend or to indemnify
Casey, or to pay medical expenses for Williams, due to an
exclusion in the policy for bodily injury "[w]hich is
expected or intended by the insured." On cross motions
for summary judgment, a Superior Court judge ruled in favor
of Liberty Mutual, concluding as a matter of law that Casey
expected or intended to cause Williams bodily injury.
Williams and Casey appeal, arguing that there is a genuine
issue of material fact regarding Casey's intent to
injure. We affirm.
recount certain undisputed material facts from the summary
judgment record, reserving for later discussion the facts
concerning Casey's intent. On the evening of June 26,
2013, Casey, then seventeen years old, attended the St.
Peter's fiesta celebration (fiesta) in Gloucester with
two friends, Dylan Chaney and Forrest Turner. Prior to
arriving, Casey had consumed alcohol and smoked
marijuana. At some point while at the fiesta, Casey
encountered Williams, also seventeen years old, and the two
left on foot in the company of Chaney and Turner, allegedly
to go smoke marijuana. After the group arrived at a remote
location nearby, Casey "sucker punched" Williams in
the face with a closed fist. Casey then punched Williams in
the face several more times, kicked him in the face once, and
departed with Chaney and Turner, leaving Williams seriously
injured on the ground.
Williams got to his feet and located the other three nearby.
As Williams approached, and spoke with Chaney and Turner,
Casey separated from the group, came up behind Williams, and
again "sucker punched" him in the face with a
closed fist, causing additional serious bodily injuries.
Casey, Chaney, and Turner then departed for a second
Casey was indicted for the attacks and pleaded guilty to
assault and battery by means of a dangerous weapon (shod
foot) and assault and battery causing serious bodily
harm. He was sentenced for the first offense to
two and one-half years in a house of correction, with two
years to be served and the balance suspended while he served
a three-year period of probation for the second offense.
then made a claim under the Liberty Mutual homeowners
insurance policy of Casey's parents. Potentially, both
Casey and Williams are entitled to coverage under the policy.
As an insured under the policy, Casey is potentially entitled
to a defense and to "personal liability" coverage
(coverage E) "[i]f a claim is made or a suit is brought
against [him] for damages because of 'bodily injury'
. . . caused by an 'occurrence' to which [the]
coverage applies." Williams, in turn, is potentially
entitled to "medical payments to others" coverage
(coverage F) for "bodily injury" that "[i]s
caused by the activities of an 'insured.'" The
policy contains certain "exclusions, " however,
including a clause providing that coverage E and coverage F
"do not apply to 'bodily injury' . . . [w]hich
is expected or intended by the 'insured', even if the
resulting 'bodily injury' . . . is of a different
kind, quality, or degree than initially expected or
intended." It is that clause that the judge held
excludes coverage for Casey and Williams.
Standard of review.
review of the summary judgment is de novo, meaning we
consider all of the evidence that was before the motion judge
and draw all reasonable inferences therefrom in a light most
favorable to Casey and Williams. See Miller
v. Cotter, 448 Mass. 671, 676 (2007);
Albahari v. Zoning Bd. of Appeals of Brewster, 7 6
Mass.App.Ct. 245, 248 n.4 (2010). Liberty Mutual, as the
moving party, has the burden of establishing that there is no
genuine issue as to any material fact and that it is entitled
to judgment as a matter of law. See Drakopoulos
v. U.S. Bank Natl. Assn., 465 Mass. 775,
777 (2013) .
"expected or intended" language of the exclusionary
clause at issue here has been considered by the Supreme
Judicial Court in several cases. See Quincy Mut. Fire
Ins. Co. v.Abernathy, 393 Mass. 81,
83-86 (1984); Newtonv.Krasnigor,
404 Mass. 682, 684-686 (1989); Worcester Ins. Co.
v.Fells Acres Day Sen., Inc., 408 Mass.
393, 399-400 (1990) (Fells Acres); Hanover Ins.
Co. v.Talhouni, 413 Mass. 781,
783-787 (1992); Doev.Liberty Mut.
Ins. Co., 423 Mass. 366, 369-371 (1996). Those cases
establish that, to prevail at the summary judgment stage
based on the exclusion, Liberty Mutual must establish that
there is no genuine dispute that Casey "intended, or
knew with substantial certainty, that some injury would
result from his conduct." Talhouni,
supra at 785, quoting from Kowalskiv.Gagne, 914 F.2d 299, 304 (1st Cir. 1990)
. See Abernathy, supra at 87 ("two
crucial issues" are "whether [the insured] intended
... to cause injury ... or whether [the insured] knew to a
substantial certainty that such ...