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Liberty Mutual Fire Insurance Co. v. Casey

Appeals Court of Massachusetts, Essex

March 29, 2017

RYAN CASEY & another.[1]

          Heart November 7, 2016

         Civil action commenced in the Superior Court Department on May 22, 2014.

         The case was heard by Robert A. Cornetta, J., on motions for summary judgment.

          Richard J. Fallon for Ryan Casey.

          Joseph M. Orlando, Jr., for Evan Williams.

          John P. Graceffa for the plaintiff.

          Present: Cypher, Massing, & Sacks, JJ.

          SACKS, J.

         Twice 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.[2] We affirm.

         1. Background.

         We 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.[3] 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.[4] 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.

         Eventually, 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 time.[5]

         Subsequently, 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.[6] 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.

         Williams then made a claim under the Liberty Mutual homeowners insurance policy of Casey's parents.[7] 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.[8]

         2. Standard of review.

         Our 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) .

         3. Discussion.

         The "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 ...

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