Looking For Friends in Massachusetts

Posted on March 21, 2011 by Mike Aylward

The Supreme Judicial Court of Massachusetts is seeking amicus briefs in an important appeal construing the scope of "intentional and criminal acts" exclusion in a homeowners policy.  If you belong to an organization that might be interested in having a say on this issue, contact us.

At issue in Metropolitan Prop. & Cas. Ins. Co. v. Morrison, SJC-10858 is a 2010 Superior Court ruling that an exclusion for intentional and criminal acts in a homeowner's policy precluded coverage for a law suit that a police officer brought against the insured's teen age son for injuries that the teenager inflicted in the course of resisting arrest. The Superior Court ruled that the exclusion whether or not the insured had a subjective intent to cause injury (as is generally required under Massachusetts law for "expected or intended" injury exclusions).

The insured has appeal, arguing that the "Intentional and Criminal Acts" exclusion should be interpreted in the same manner as the earlier "intentional acts" exclusion, which the Court ruled in Preferred Mutual Ins. Co. v. Gamache, 426 Mass. 93, 686 N.E.2d 989 (1997) only applied if both the act and the resulting injuries were intentional.

The Supreme Judicial Court has accepted direct appellate review of the case and is expected to hear oral argument in May.  In the interim, the Court has requested amicus briefing on two issues: (1) whether the intentional and criminal acts exclusion in a homeowner’s policy barred coverage for an insured’s action that caused injury to a police officer while resisting arrest. The Court has also requested briefing with respect to whether the harm from the criminal act must have been intended for the exclusion to apply. The briefs will be due some time in late April.

 

Although one can read too much into the willingness of high courts to accept direct appellate review, the fact that the SJC took this case away from the Appeals Court does give one concern. At the same time, the appeal presents an opportunity to fix some of the problems that the Court's earlier Gamache opinion created or, at a minimum, to contain the damage.

Please contact me if you'd like a copy of the trial court's decision of the briefs that have been filed so far in the SJC.

 

 

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Complaint Alleging Trespass But Not Physical Injury Does Not Trigger Duty To Defend

Posted on August 20, 2010 by Diane Polscer

 

In Metropolitan Casualty Ins. Co. v. Birmingham, Case No., C09-726RAJ, 2010 U.S. Dist. LEXIS 82838 (W.D. Wash., August 13, 2010), the court found that the insurer had no duty to defend the insured because there were no allegations of property damage or personal injury. In the underlying case Birmingham requested a declaration regarding a property boundary. The defendant in that case brought a counterclaim asserting a right to an order to quite title, injunctive relief, breach of contract, trespass and interference with property rights. Birmingham tendered the defense of the counterclaims to its insurer. Metropolitan denied it had a duty to defend because there was no allegation of covered damage.

 

In the ensuing coverage action, Birmingham argued that the allegations of trespass created a duty to defend because they allege that “the trespasses have caused damage . . . in an amount to be proven at trial” and interference with the right to quiet enjoyment and use of the property. Birmingham argued that the complaint should be liberally construed to include to include a trespass that causes property damage. The court found that the argument “requires the court to go beyond liberal construction . . . because there are no allegations . . . suggesting that the Birminghams caused any physical injury or destruction to tangible property.” Only a bare allegation of trespass was not enough to trigger the definition of “property damage.” The court found that the allegations were not ambiguous simply because some types of trespass could cause property damage. Since there was no actual claim for physical injury, the court denied that there was any ambiguity to construe in favor of a defense. The court rejected the argument that coverage for personal injury applied because there was no allegation that an invasion of a property right was done by or on behalf of the land lord of the property.
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