Heard: February 16, 2017.
action commenced in the Superior Court Department on April
case was heard by Bruce R. Henry, J., on motions for summary
judgment, and a motion for reconsideration was considered by
A. Padolsky for the plaintiff.
Roberta R. Fitzpatrick (Kathryn Annbinder Covarrubias also
present) for the defendant.
Present: Kafker, C.J., Wolohojian, & Sacks, JJ.
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.
The underlying suit.
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.
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.
The policy provisions.
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.