Massachusetts High Court: Abuse Exclusion Requires Imbalance or Misuse of Power Attendant to Physically Harmful Conduct

In a March 16, 2023 decision, the Supreme Judicial Court of Massachusetts concluded that an abuse exclusion in a homeowners’ policy was inapplicable to an unprovoked attack by an insured .

The Massachusetts Supreme Judicial Court again considered whether, under the terms of a homeowners’ insurance policy, conduct by an insured constituted “physical abuse” within the terms of a policy exclusion that precluded coverage for “bodily injury…arising out of sexual molestation, corporate punishment or physical or mental abuse in Dorchester Mut. Ins. Co. v. Miville, et. al., SJC-13308, slip. op. at 2 (Mass. March 16, 2023).  The Court concluded that the term “physical abuse” in the context of the abuse and molestation exclusion, “requires an imbalance or misuse of power attendant to the physically harmful conduct.” Id. at 3. 

In the underlying incident, sixty-one year old Leonard Miville (the “Victim”) went to his girlfriend’s home early in the morning to pick her up and drive her to work. Id. A thirty-year old neighbor, William Brengle (the “Assailant”), confronted the Victim from his front porch and initiated an unprovoked attack on the Victim by punching him in the head and repeatedly kicking him after he had fallen, causing him to sustain serious injuries. Id. at 3–4.  The Victim brought suit, asserting claims of negligence, assault and battery, and negligent supervision against Brengle and his parents, who owned the home near where the attack took place. Id. at 5–6. Brengle’s parents maintained a homeowner’s policy (the “Policy”) with Dorchester Mutual (the “Insurer”) that provided personal liability coverage for claims “brought against an ‘insured’ (which included Brengle) for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence.’” Id. at 5.  The Policy contained an abuse and molestation exclusion (the “Abuse Exclusion”) that precluded coverage for “‘[b]odily injury’ . . . arising out of sexual molestation, corporal punishment or physical or mental abuse,” but did not define “physical abuse.” Id. at 5. The Insurer sought a declaratory judgment that it had no duty to defend or indemnify the Assailant because the Abuse Exclusion applied to the Victim’s claims. 

The Court considered the language of the exclusion, its history, and cases, statutes and regulations. The Court found that the canon of noscitur a sociis limited “physical abuse” in the Abuse Exclusion to the terms it accompanied, which included “corporal punishment” and “sexual molestation.” Id. at 12–13. The Court noted that that although those terms were undefined by the Policy, both “generally involved an imbalance or exploitation of power between the perpetrator and the victim” and found that “physical abuse” referred to the same dynamic. Id.  The Court also observed that the exclusion evolved partly in response to sexual abuse allegations by the Catholic Church and was intended to be used with organizations “that have care or custody of others – schools, nursing homes, daycare centers, etc.” Id. at 15 (citation omitted).  The Court also referenced its earlier decision, Dorchester Mut. Ins. Co. v. Krusell, in which it concluded that the term “physical abuse” as used in an identical policy exclusion was ambiguous. 485 Mass. 431, 439–40. Interpreting the exclusion through the lens of an “objectively reasonable insured,” the Krusell Court determined that “physical abuse” applied to a “limited subset of physically harmful treatment, where the treatment is characterized by an ‘abusivee’ quality such as a misuse of power” or “conduct so extreme as to indicate an abuser’s disposition towards inflicting pain and suffering” Id. 485 Mass. 431, 439–40, 46 (2020).  In Krusell, a twenty-three year old insured pushed a sixty-two year old man, causing the latter to fall and sustain serious, permanent injuries, which the Court concluded did not warrant application of the Abuse Exclusion because it did not contain an “abusive” quality. Id. Applying Krussell to the Victim’s claims, the Court rejected the Insurer’s argument that the age difference between the Assailant and Victim created a “physical power imbalance between the two” and that the unviolent and provoked nature of the attack was evidence of Assailant’s disposition to inflict pain and suffering. Miville, et. al., SJC-13308, slip. op. at 10–11.  Noting that Krussell involved a greater age gap, the Court concluded that there was no “exploitation or misuse of power” in the Assailant’s attack on the Victim.  The Court therefore held that the Abuse Exclusion did not apply to bar the Victim’s claims against the Assailant and his parents.