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Nguyen v. Arbella Insurance Group

Appeals Court of Massachusetts, Middlesex

May 23, 2017

VINCENT NGUYEN
v.
ARBELLA INSURANCE GROUP [1]

          Heard: February 16, 2017.

         Civil action commenced in the Superior Court Department on April 11, 2014.

         The case was heard by Bruce R. Henry, J., on motions for summary judgment, and a motion for reconsideration was considered by him.

          Joseph A. Padolsky for the plaintiff.

          Roberta R. Fitzpatrick (Kathryn Annbinder Covarrubias also present) for the defendant.

          Present: Kafker, C.J., Wolohojian, & Sacks, JJ.

          SACKS, J.

         The plaintiff, Vincent Nguyen, having been sued in Federal court on various tort, civil rights, and other theories by a former fellow employee of the Newton police department, requested that the defendant, Arbella Insurance Group (Arbella), as issuer of his homeowner's insurance policy, provide him a defense. After Arbella declined, citing the policy's "business pursuits" exclusion, Nguyen filed a Superior Court action seeking a declaration that Arbella was obligated to provide him a defense. On cross motions for summary judgment, a judge agreed with Arbella that the "business pursuits" exclusion applied. Nguyen appealed the resulting judgment in Arbella's favor and the order denying his motion for reconsideration. We affirm.

         Background.

         a. The underlying suit.

         In the underlying Federal action, the plaintiff, Jeanne Sweeney Mooney, alleged that at all relevant times she was an employee of the Newton police department and most recently worked as the executive administrator for the chief of police. The defendants were the city of Newton, its mayor in his official capacity, and the then-chief of police, a police lieutenant, and Nguyen (a civilian employee in the chief's office), all in their individual capacities.

         Mooney alleged that the chief, the lieutenant, and Nguyen conspired to coerce her into accepting additional duties in violation of a union contract, as retaliation for Mooney's objecting to both the potential contract violation and the chief's improperly obtaining an "exceptional service" pay raise. She also alleged that the chief and Nguyen, in order to obtain leverage over Mooney, conspired to stage a false "I-Team Investigation" by a television station regarding her use of her break time; the ruse relied on photographs that Nguyen took, during working hours, of Mooney outside the police station and of Mooney's truck outside her home, thus allegedly violating her privacy rights. She further alleged that the chief, the lieutenant, and Nguyen conspired to stage a purported theft of police department funds and to falsely name her as the thief in order to have her terminated, in retaliation for her reporting to others the chief's alleged wrongdoing. As a result, she alleged, she was placed on administrative leave, and was criminally charged with and tried for the theft, only to be acquitted. Based on these factual allegations, Mooney's Federal action asserted thirteen claims, ten of which named Nguyen as a defendant along with the chief and, in some instances, the lieutenant and others.[2]

         b. The policy provisions.

         As relevant here, the homeowner's policy issued by Arbella entitles Nguyen to a defense against claims for "personal injury" caused by an "occurrence, " but contains a so-called "business pursuits exclusion, " see Preferred Mut. Ins. Co. v.Vermont Mut. Ins. Co., 87 Mass.App.Ct. ...


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