Intentional Acts Exclusions to Liability Insurance Coverage in Massachusetts Personal Injury Claims

J. Michael Conley

Most liability insurance policies, either by their definition of covered occurrence or by specific exclusion, or both, deny liability insurance coverage for intentionally perpetrated harm. However, Massachusetts courts have construed narrowly the scope of conduct deemed intentional. Accordingly, when representing a claimant or an insured in a personal injury claim it is important to examine critically an insurer's assertion of intentional acts exclusion to determine whether the insurer indeed owes defense or indemnity coverage.

Specific Intent Required

The Supreme Judicial Court has consistently interpreted so-called "intentional acts" exclusions in liability policies to be inapplicable and coverage will apply "if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur." Quincy Mutual Fire Ins. Co. v. Abernathy, 393 Mass. 81 (1984) (interpreting the exclusion for bodily injury or property damage "which is expected or intended"). The standard is a subjective one. "The focus in these cases is whether the insured 'intended' the injury, not whether the insured intended the act." Hanover Insurance Co. v. Talhouni, 413 Mass. 781, 784, (1992); Preferred Mutual Ins. Co. v. Gamache, 425 Mass. 93 (1997). "It is only the intended injuries flowing from an intentional act that are excluded; just as it is the injury and not the legal liability of the insured which must have been caused by accident; and a homeowners policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended." Id., quoting 7A J.A. Appleman, Insurance Law and Practice § 4492.02, at 32 (rev. ed.1979).

It is the insurer's burden to prove the applicability of a clause excluding coverage for injury or damage intended or expected by the insured. To this end, the insurer must show that the insured intended the injuries that flowed from his conduct. Hanover Ins. Co. v. Talhouni, 413 Mass. at 785.

The intent element of an exclusion must be construed to conform with the definition of accident and occurrence and in accordance with the established rule that "generally an injury 'which ensues from the volitional act of an insured is still an 'accident' within the meaning of the insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.'" Worcester Insurance Co. v. Fells Acres Day School, 408 Mass. 393, 399 (1990), quoting Quincy Mutual Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984).

Constructive Intent Or Wanton Reckless Conduct Does Not Prevent Coverage.

In Sheehan v. Gorianski, 321 Mass. 200 (1947), the court concluded that "a harm which is only constructively intentional does not, for that reason alone, fall outside the category of an injury caused by accident," and conduct which was reckless and wanton, and therefore, only constructively intentional but not specifically intended or expected to cause harm, would not be excluded from coverage under an auto insurance policy. The Court stated that "[r]eckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it." Id. The Sheehan case, which was decided in 1947, continues to represent the state of the law to date. "Our cases have concluded that an injury is non-accidental only where the result was actually, not constructively, intended, i.e., more than reckless." Preferred Mutual Ins. Co. v. Gamache, 425 Mass. 93 (1997); Quincy Mutual Fire Insurance Co. v. Abernathy, 393 Mass. 81 (1984).

It follows that an allegation of intentional tort or a confession or conviction of a general intent crime such as assault and battery, the elements of which are satisfied by a showing of constructive intent, are neither dispositive nor even highly probative of the applicability of an intentional acts exclusion. See Quincy Mutual Fire Insurance Co. v. Abernathy, 393 Mass. 81, 87 n.4 (1984); Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751 (1985); Preferred Mutual Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 200 (1996) (voluntary intoxication), aff'd 425 Mass. 93 (1997).

Must Intend Type of Harm

The fact that the act itself is intended will not lead to an exclusion if no damage is expected or intended, or if damage of another type is expected or intended. Newton v. Krasnigor, 404 Mass. 682 (1989).

In Quincy Mutual Fire Insurance Co. v. Abernathy, 393 Mass. 81 (1984), the Court considered bodily injury coverage for a youth who threw a rock at a car, breaking the windshield and injuring a back seat passenger.

These undisputed facts do not resolve either of the two crucial issues raised by the pleadings: whether Hannon intended, by his volitional act, to cause injury to the Abernathys or whether he knew to a substantial certainty that such injuries would ensue from his actions. From the agreed facts, we know only that James Hannon admitted to performing the physical act of throwing the rock at the car. The statement tells us nothing about sixteen year old Hannon's state of mind at the time. We do not know whether his act was prompted by a desire to injure or merely to frighten the occupants of the car, or whether he threw the rock as part of an adolescent prank. We know nothing about Hannon's mental faculties at the time of the incident.

Id. at. 87 .

Must Intend Harm To Claimant

Intent to injure cannot ordinarily be transferred from the intended victim to that of a non-intended victim, including a loss-of-consortium claimant. See Worcester Insurance Co. v. Fells Acres Day School, 408 Mass. 393, 399, 558 N.E.2d 958, 972 (1990) (perpetrators' intent to injure children not transferred to represent intent to injure the parents of the child/victims). See Quincy Mutual Fire Insurance Co. v. Abernathy, 393 Mass. 81, 87 (1984) (youth throwing rock at moving car may be presumed to know of presence of driver, but not presence of back seat passenger).

Consequently, under many policies, the insurer would be unable to escape indemnity responsibility for a loss of consortium claim, including a claim on behalf of prospective recipients of the loss-of consortium damages compensable under the Wrongful Death Act, M.G.L. c. 229, § 2, unless it could prove an intent to harm the consortium claimant. Loss of consortium claims, including consortium-like claims brought through an administrator as a conduit under G.L. c. 229, stand on their own and are not derivative in nature. Worcester Ins. v. Fells Acres Day School, Inc., 408 Mass. 393, (1990); Santos v. Lumbermen's Mut. Cas. Co., 408 Mass. 70, 77-78 (1990).

In Worcester Ins. Co. v. Fells Acres Day School, Inc., supra, the Supreme Judicial Court considered the applicability of the "expected or intended" exclusion in a homeowner's policy to loss of consortium claims arising from intentionally inflicted bodily injuries to family members.

The injuries . . . in the form of "care and loss of services," however, remain within the scope of coverage, unless trial of the issues demonstrates that the insured intended to injure the [loss of consortium] plaintiffs.

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We have rejected the argument that consortium claims are essentially derivative on a number of previous occasions. See Pinheiro v. Medical Malpractice Joint Underwriting Assn of Mass., 406 Mass 8, 29 (1989); Bilodeau v. Lumberman's Mut. Casualty Co., 392 Mass 537, 539 (1984); Feltch v. General Rental Co., 383 Mass 603, 607 (1981). Although it is clear that a consortium claim bears a "symbiotic" relation to the initial claim of injury to a spouse or other family member, Corrigan v. General Elec. Co., 406 Mass 478, 480 (1990), it is an independent injury . . . .

408 Mass. at 413-15. Therefore, in most instances, in order to exclude such claims from indemnity coverage, the burden is on an insurer to prove that the insured specifically intended to cause injury to the loss of consortium claimants. Id.; Hanover Insurance Co. v. Talhouni, 413 Mass.781, 784 (1992).

Regardless of whether the exclusion for expected or intended conduct necessitates the exclusion from coverage of the injuries inflicted upon a primary victim, the injuries in the form of loss of consortium are still covered by an insurance policy unless specifically and unambiguously excluded. Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass. 393 (1990). However, such exclusion is possible; insurance coverage is contractual and variations in policy language can produce different results. Thus, where a policy, does loss of consortium within the definition of bodily injury, but rather covers it pursuant to language insuring against damages "because of bodily injury to which this coverage applies," an effective exclusion of the primary injury claim may likewise result in excluding from coverage claims for loss of consortium. Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass. at 413-15.

In Limited Circumstances, Intent Presumed

Massachusetts' courts have inferred intent to harm as a matter of law in very limited circumstances. "Inferring intent to injure as a matter of law in construing an exclusionary clause has been recognized in only three situations: an adult's unlawful sexual behavior toward a minor; setting fire to a building; and pushing a person down a staircase." Preferred Mutual Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 200 (1996), affirmed, 426 Mass. 93 (1997). See Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393 (1990) (adult's sexual abuse of a minor); Doe v. Liberty Mut. Ins. Co., 423 Mass. 366 (1996) (adult's sexual abuse of a minor); Newton v. Krasnigor, 404 Mass. 682 (1989) (setting fire to building); Terrio v. McDonough, 16 Mass.App.Ct. 163, 169 (1983) (intentionally pushing a person down a staircase). The purpose of the insured's conduct may be central to consideration of intent:

Considering the facts of this case, we must conclude, as matter of law, that Krasnigor intended to cause some property damage to the school. If there had been evidence that Krasnigor "started a fire" for warmth, or to guide his way through the darkness, or for any other motive, we might conclude that the intent to cause some damage could not be inferred. But no evidence was presented to support such theories. Rather, Krasnigor broke into the school, placed matches in several boxes of books, lit those boxes of books, and left the school while several small fires were blazing. Given such facts, it is impossible not to conclude that Krasnigor intended, or expected, to cause some property damage.

Newton v. Krasnigor, 404 Mass. 682 (1989).

Capacity to Form Specific Intent - Intoxication or Mental Illness

As part of its proof that an insured subjectively intended a given harm, the insurer must demonstrate the insured's capacity to form the requisite intention. In evaluating the state of mind of the insured, intoxication by drugs or alcohol is fairly considered in assessing the capacity to form the requisite expectation or intention of causing harm. Hanover Insurance Company v. Talhouni, 413 Mass. 781 (1992). Massachusetts courts have repeatedly referred to "the need to consider evidence on the capacity issue in determining whether an insured acted with the requisite intent for purposes of the exclusion." Hanover Ins. Co. v. Talhouni, 413 Mass. 791; see Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. at 401 (1990). Evidence of either insanity or voluntary intoxication of an insured at the time of the occurrence has called into question the capacity of the insured to form the intent to cause damage or injury. See, e.g., Baker v. Commercial Union Ins. Co., 382 Mass. 347 (1981) (insanity); Hanover Ins. Co. v. Talhouni, 413 Mass. 781 (1992) (voluntary intoxication); Preferred Mutual Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 200 (1996) (voluntary intoxication), aff'd 425 Mass. 93 (1997); Swift v. Fitchburg Mut. Ins. Co. 45 Mass.App.Ct. 617 (1998) (criminal acts exclusion in homeowners' liability policy not be applied to action alleging that the insured attacked the underlying plaintiffs while he was mentally disabled; insured was found not guilty by reason of mental illness in criminal prosecution arising out of the incident; insured was incapable of forming a criminal intention.). Cf. United Services Auto. Ass'n v. Doe, 58 Mass.App.Ct.743 (2003) (in absence of special disability fourteen year old is capable of criminal intent).

Extent of Intended Harm Not Determinative

If , however, an insurer succeeds in showing an act was intended to cause the resulting harm, it is not necessary to prove that the insured expected to cause the extent of harm that ultimately occurred. The "resulting harm" concerns the type of harm inflicted--whether personal injury or property damage--and not the extent of the harm actually sustained. City of Newton v. Krasignor, 404 Mass. 682 (1989).

Intent of One Insured May Not Affect Coverage of Other Insureds

It is often important to identify whether a policy has a severability of interests clause. The effect of such a provision is to require "that each insured be treated as having a separate insurance policy." Worcester Mutual Ins. Co. v. Marnell, 398 Mass. 240 (1986). In policies which contain severability of interests clauses, an exclusion effective against one insured, does not necessarily preclude coverage for another insured for the same event. See Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240 (1986) (in presence of severability clause, parent's coverage for alleged negligent supervision not excluded as arising from use of vehicle, even though injuries arose from motor vehicle accident in which minor child was owner/operator of vehicle); see also Merrimack Mut. Fire Ins. Co. v. Sampson, 28 Mass. App. Ct. 353 (1990) (negligent supervision claim brought against insured but unlike in Marnel exclusion found applicable because named insured was owner of vehicle). Accordingly, in the presence of a severability clause, the operator of a taxi company was not excluded from coverage under automobile policy for a driver's intentional sexual assault upon a passenger. Roe v. Lawn, 34 Mass. App. Ct.726, 727 n 5 (1993) aff'd on other grounds 418 Mass. 66 (1994). Similarly, an intentional sexual assault perpetrated by a day care center employee would not affect coverage for co-workers or the center based on claims of negligence or recklessness. Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass. at 411.

Intent to Cause Harm Does Not Affect Compulsory Auto Insurance Coverage

Finally, because compulsory auto insurance is intended to protect the public from vehicle related harm, the Legislature has specified that compulsory auto insurance must cover even intentionally inflicted injuries. Wheeler v. O'Connell, 297 Mass. 549 (1937); accord Cannon v. Commerce Insurance Company, 18 Mass. App. Ct. 984 (1984). The Wheeler decision was based upon the court's construction of two statutes - - Massachusetts General Laws Chapter 90 §34A and Massachusetts General Laws Chapter 175 §113A.

Chapter 90 §34A requires auto policies to insure "against loss by reason of the liability to pay damages to others for bodily injuries." The Wheeler court ruled "The words 'liability to pay damages' in G.L. c.90 §34A, taken literally and given their ordinary meaning, would include liability arising by reason of willful conduct as well as negligence in the operation of the motor vehicle." 297 Mass. at 552.

Chapter 175 §113A prohibits in respect to compulsory coverage "any exceptions or exclusions as to specified accidents or injuries or causes thereof." As to this language, the Wheeler court noted, "Moreover, if the policy under consideration had contained an express exception against liability for injuries caused by the willful conduct of the operator, such a policy would be in violation of G.L. c.175, §113A as containing an exception or exclusion 'as to specified accidents or injuries or causes thereof.' It is plain that the rights of injured party are not purely derivative and therefore the nature of the conduct of the operation is immaterial." 297 Mass.at 554.

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