Vermont Mutual Insurance Co. V. Allen
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SUPFRIOR COL'R1 CIVIL ACTlOt>; O,ckct No_ CV-14. 474 \'ERMON r Ml:TU.-\I TJ);v-[Ufh- W-(fJ-11] INSURi\~CE CO., Plaintiff ORDER STATEOfMAINE_ Cuntlelland, st. Clatt'I<Jb JOHN ALLEN, FEB 10 2015 Defendant RECEIVED Before the collf! is a motion for summa!}' judgmell! by plaintiff Vermont Mutual Insurance Co. 1 The facts arc twdisputed. Thomas Getchell has a pending: lawsuit agamst defendant John Allen ba<ed ()n allegations that .>\lien inflicted senous bodily injury on Getchell in an altercation on January 4, 20 13.' Getchell's original complaint, dated July 10, 2014, asserted cause< of action for negligence, negligent infliction ot emotional distres8, and battery. Vermont Mutual SMF '1[2. Allen had a Vermont Mutual homeowner's policy at the time of the ~vents in question, ami Allen tendered his defense to Vennont Mutual, wh!Ch initially agreed to provide a defemc under a reservation ofrighl<_ Vermont Mutua.! SMF 11~ 3, 6. On September 19,2014 Getchell amended his complaint to eliminate the allegation; of negligence and neghgcnt infliction ol' ~motional di,tre<os. Vermont Mlltlilll SMl' '1 7. Only a cause of adion for battery remains. As amended, Getchell's complaint alleges that Allen and 1 Although Alien·s SMF respond> wi'h quo:ification< to poragraph' 5-7 ofVermonl Mutual's SMF, Allen Jocs no: •ctually J"pute the facts ;cl forth 1n :hose paragrarhs. ' Alien was subsequ~~Ll)' coovic•ed of F..l5dcmc•nor assaull based nn the mc1dent in 4ue;t;nn See Defcndar.l's Respon<e to Plamtifro SMF ~ 7 Wletlhel mdividuul ··attacked, assau:ted, vici<'usly beat, and causd serious bodily >njUry to I Getche 11], ·· that Allen's actions wne '·wiJlfu i. intcnt;ona\, ond committed with actual or implied rn~hcc·· wtd that Allen •'expectd or intmded to int1ict the in;uries and Uamages that in fact resulted:· Exiubit C to Donahue Affidavit,,,,; 4, 6. After the September 19, 2014 amendment to Getchell's complaint, Vcm1om Murual m~d the instant aetion seeking a dedaratory judgment that it no longer has any duty to defenU Allen. Summary ludgmen! Summary judgment should be granted if there is no genuine dispute as to any material IJ.ct and the movant is enlltled to judgment as a matter of law. In consiUcring a motion for summary jwlgment, the court is required to consider only the portion1 of !he rcc,ml rcferreJ to anU the material facts set fonh in the parties· Rule 56(h) stakments. );..g., Joillli'Oll...}C McNeil, 2002 MF. 99 ~ 8, ROO A.2d 702. The facl-; must he considered in the light most favorable to the non·m<:>Ving party. Jd. Thu~, for purpo>CS of summary juJgment, any fadual di>puks must be resolved against the movant. Nevertheles», when the facts ol'fered by a party in OpPOSition 10 stun mary judgment would not, if offered at trial. be :;ulficient to ;vithstand a motion for judgment as a maller nf law, surrunary judgment should be granteU. Rodlj_gue....i_ Rodri.g_u-'c, !997 MF. 99 ~ 8, G94 A.2d 924. Dutv to Defend TI1e parties a,.,ree thul the determination of whether an 1murer hflS a Jury to defend requires a comparison between the ailcgationl of the unlicrlying complaint v,,th the eO\·eragc 2 providd in the in>uranve policy, thul tfle duty to Ucfend ~nd tbat an insurer mu,t prnvidc a defense if thcr~ lS broader than the duty to indemnify, is cmy potential that the facts ultimately pHl\'C:n could result in coverage. Mirchc/1 •.· At/stare Insurance Co., 2011 ~1E 133 'irJ 9-10,36 A 2d 876. Thi' ta8C presents a variatiGll t'rom the usual situation because the plaint1ff in the Lillderlying act10n. Thomas Get<:hell, ha.' amended ]us complaint in a 111anner that appears to be Ucsigned lo avoid insurance cove,age. This is eonlirmcd by the fact t"hat Getche:l, named as a party 1n interest in thi., suit, has filed a pleading supporting Vermont Muh1al"s argument that VennGn\ Mutual has no duty to de!Cnd. AI the outset, the court agrees with Vermcmt Mutual1-hat whether the insurer continues W ha~e a duty to defend must be con"dercd with reference to the amended complaint rather thun \~ith reference to the orig,inal complaint. See Conway· Chevro/ei-Buiuk Inc. v. 1i"ave/ers Indemnily Co .. 136 F. 3d 210, 214 (1st Cir. 1998). 1 Looking at the language in the amended complain~ Vermont Mutual argues that the altercatwn that resulted in alleged harm to Getchell d()eS not qualify as an "occurrence"' under the policy and also falls directly v.lthin an express exclusion for bodily injury which is '·expected 01 intend~d by the insured." The ddlnilton of ··occurrence" matters because V em10nt Mumal's policy insure~ against liability for bodily injuT)' caused by an ·'occ.'Urrence'' which is defined as an "accident" See Homeowner's Policy Section IT, Coverage E and the determination Gf v,-h~ther an ltct lS Definitions~ 5. The law Court ha> ruled that accidental ··depends on the unintended nature of the .. This is not a foregone ~onclusion Allen point; to policy lang"a~;c stating, "Our duty to settle or defend ~nds when the •mount ""pay for dam"ges rc<ulting from t"ne ·occurrence' e~ual; our limit of liability_" Policy Section ll. Cavemge E ~ 2. Allen argues that th" language predud~s any ceS>auon of the dUt) t.c defe~d ha;cd on l"'" emendmen' to Getchell-, complaint 3 consequences of the act. rather than tk intentional na\'Jie af the act it<clf.'" Mame Mulua! F1re lnsw·(mcr Co. v Gervais, 199R .\fE 197 \1 9, 715 _A.,2d 918. Thus it \\·ould be thcoretiwlly possible for a b;~t!Gry to involve intentional c,mduct which couiJ still q_ualif;..· as aDcidenta! ll Allen had intended the conduct in ,]uestion but had not imcnded to inflkt boJily injury_ Thts is mirrored in the Restatement's ddiniticm of battery. To be liable for actor must intend to Howev~r, harm caus~ the actor mav n:.~ults a harmful or offens;ve contact. Restatement (Second) b~ found habl~ batt~ry, Tort'~ ail D(_a). if h<; intends to infltct an offensive contact and if bodily even though the actm did not intend to cau'c bodily harm Restatement (Second) Torts§ 16(1). Vem10nt Mutual also relies on an excJu.<,ton for any intended" by the insUTcd. Policy Section ll - Lxdusions bodil~ ~ illjury which is "expected or l(a). However, Maine cm;es have found that language to be ambiguous and that the "'expected or intended" exclusion refer; only to bodily injury ''that the in~urecl in fact 8Ubjectively wanted ('intended') to be a result of his conduct or in fact subjectively IOre.<aW as practically certain ('expected') to be a result of his conduct." Patrons-Oxford Mulua/ Insurance Co. v. Dodge, 426 A.2d 888, 892 (Me. 19Rl). Accord, Royal insurance Co v. Pinelle, 2000 lvfF !55 ~ 8, 756 A.2d 520 ("our case< clemonstrak that the exclusion applies only when lhe insured has actd w1th the intention or a~t'-). Once again, tbercfore, batter~ even if Allen had not l'Xpectation that anotber will be harmed by the imured"s intentional it \VOUld be pos.l'ible lOr Getchell to estahllsh -\llen"s liability for intended to inflict boddy injury on GdchclL Getchell's amended complaint, how~ver, expressly alleges that •\!len's ~ction' were intemional and that .Allen "expected or inknded"' to 1nflicl the resulting injuries to Getchell. lf those allcguti()nS arc controlling, then Allen'~ alleged conduct would not be accident:l-1. v,uulJ 4 not qualify as <In ~~en "o~cmrence." and the bodily lnjm)' ((Jt which rccwcry is sought \Vould have both expected and intended. On its t"ace, tills would cenainly indica!~ tb;J.L Getchell is not alleging condu-::1 that would have any potential to be covered by the Vcr!l1c>nt Mutual poli~y. :'--!c·vertlmless, in .I>Jitchel/ c_ All.1!ale insurance Co., :?.Oll \1E 133. 36 A 2d S76, the Law Court d1sregarded alkg,ations in a ~1lmplaint allegmg an inte~llonal conversHm, reasoning that the plaintiffv,;ould not have to prove thut a conversion had been intentional m order to prc,·ail. 2011 ME 133 ~ 17. :''hmih;rly, as noted abo\·e, Getchell would not have to prove in this case thilt Allen acted \'iclOusly and intentionally or that Ahen expected or mtended to inJUre Get~hell in order to prevail on a cause of ac6on for battery. Applying the comparison test as interpreted in Milchc/1 v. Allstate. thmdOre, Getchell's "expected and intended'' allegations must be disregarded in detcrtnining whether Vcmwnt 11,1utual conti noes to have a duty to ddend. Vermont Mutual C1tcs fandry v. Leonard. 1998 ~1E 4 241, 720 A2d 907, and Mutual F1re Insurance Co v_ Hancock. 634 .A. 2d 1312 (Me 19'13), lOr the proposition that certain criminal behavior must be found as a matter ollav, to have been intentional. However, Landry v_ Leonard involvc;d armed rohb~ry and Hancock invohed aggravated assault and gros8 se;o;ual assault through the u"e of compulsion. Those case., ha,·e not been extended to provide that bodily injury resulting fr()m a miSdemeanor a-;saultts automatically excluded from coverage Accordingly, the court concludes that Vennont Mutuallus a continuing duty to defend under Mitchell v Al/.,lme even though thi~ result Ina} be counterintuitive given the allegations in Getchell's amended cDmplaint. 4 This also mear.o r':at Gttche!! wnnot. by adding :"ngu"ge w h1.; pleading, depri;e All~n ofrt1e Jcf;.n,c that Allen would be entitled to rccei,·c under nis homcow"er'; policy. the mrwlng pmy. In thi,· c«S~ :·>ll the r~kv3nt fa<:t~ are bcfor~ the cnurt and th~re is tw reason nm \0 i>sue a final jl<dgmcnt in favor uf Allen in rulmg that Vermont i-'!utual CC•111inues to have <. duty to ddCnd. the court ~mpha8il""S ti1M it is not ruling that. ifGet<:hdJ prevailo. Vermont Munml wcmld have a duty 10 ind,nmify Alkn. fm exumplc. ,f tl1c cose goes to tnal and the eourr in5tructs th•.: jury thilt Getchell ID%1 establish the alkgutions t.~ntained in pw:ugmpb & of Getchdl'o amt:llcleJ complaint in <lrder to prevail, 11 verdict for Gct.Chdl woul<l ;tppe>ar w fall within lhe "cxp~-ctcJ nr intendc,r' exclusion. Tile entry shall bt: P)aimi [f s motilln fnr S(.!mmury j ndgrnenl is denied, and summmy judgment is granted for defendant dcdRTing that plaintiff ~ontiuue~ to lmv~ a duty to defen<.l. The derk is directed ro im.orporate 1his order in the dm::kd by refcn::nce pl!rsuam to l:lllk 79( a). 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