For the second time in less than a year, the Massachusetts Appeals Court has affirmed there is no coverage under a homeowners policy for bodily injuries caused by an unprovoked assault and battery. On March 20, 2018, the Appeals Court decided Quincy Mutual Fire Insurance Company v. David Goff et al., finding no coverage under a homeowners policy and umbrella endorsement for an insured, Jeoung F. Kim (“Mr. Kim”), arising out of a claim against him for a serious assault and battery committed at a house party.
Affray at birthday party leads to lawsuit against aggressor, host, and host’s parents
On Saturday, August 8, 2009, Matthew Lavoie held a twenty-fifth birthday party at his home where he lived with his parents, Richard and Barbara Lavoie, in Hull.
Mr. Lavoie’s party started in the late afternoon and was still going at 3:30 a.m. the next morning. One of the guests, David Goff (“Mr. Goff”) arrived at the party at between 5:00 p.m. and 6:00 p.m. with his friends. Mr. Kim arrived at the party sometime around 10:30 p.m.
Both Mr. Goff and Mr. Kim were still at the party at 3:30 a.m. the next morning when Mr. Goff last remembers asking for a telephone number from a young lady attending the party. At that moment, Mr. Kim suddenly and without warning punched Mr. Goff and knocked him to the ground.
Mr. Goff next woke up in the hospital with bodily injuries consisting of fractures of the skull, face and jaw, a traumatic brain injury, and serious and permanent brain damage.
In May of 2012, Mr. Goff sued Mr. Kim for assault and battery. In March of 2014, Mr. Goff amended his complaint against Mr. Kim to add Mathew Lavoie, the party’s host and his mother and father, Richard J. Lavoie and Barbara S. Lavoie, the owners of the house where the party took place as defendants. Mr. Goff’s amended complaint against the Lavoies alleged:
- they had failed to protect him from harm; failed to foresee the danger of uninvited guests (Mr. Kim) posing a threat to Mr. Goff;
- failed to supervise individuals who were on their property; and,
- had allowed a large number of individuals to congregate on their property without proper supervision.
Quincy Mutual files a declaratory judgment against all parties in personal injury suit for a declaration of no coverage
Mr. Kim was insured under his father’s homeowners policy issued by Quincy Mutual and under a “personal umbrella liability endorsement” to that policy.
Although Mr. Goff’s lawsuit had his lawsuit against Mr. Kim in May of 2012, apparently, Mr. Kim did not notify Quincy Mutual until 2014. After being notified of the pending lawsuit, Quincy Mutual filed a complaint seeking a declaratory judgment that it had no obligation to defend or indemnify Mr. Kim concerning claims asserted by Mr. Goff arising out of Mr. Kim’s assault and battery. As part of its declaratory judgment action, Quincy Mutual also joined Mr. Goff and the Lavoies as necessary parties as persons whose rights might be affected by the declarations Quincy Mutual sought of no coverage.
Quincy Mutual based its claim of no coverage on the exclusions in its homeowners policy that stated the policy’s liability coverage did not apply to “bodily injury:”
- which is expected or intended by the ‘insured;’ or
- arising out of…physical . . . Abuse.
Additionally, the personal umbrella liability endorsement also excluded “Bodily injury” arising out of:
- criminal acts; or
- an act which is expected or intended by an “insured” to cause bodily injury.
However, this endorsement did carve out an exception for “Bodily injury:”
- resulting from the use of reasonable force by an “insured” to protect persons or property.
Superior Court finds Mr. Kim’s claim of self-defense not credible
The Superior Court held a two-day jury-waived trial on the questions of whether Mr. Goff’s injuries were expected or intended by Mr. Kim, whether Mr. Goff injuries arose out of physical abuse and whether Mr. Kim’s actions amounted to the use of reasonable force.
Mr. Kim’s testimony in the Superior Court claimed he had not been the aggressor, but instead, Mr. Goff had come at him in an “aggressive, life-threatening” manner while Mr. Kim was waiting in the driveway of the Lavoie house for a friend.
He claimed Mr. Goff had screamed at him, “get the [expletive] out of here, you [ethnic slur]. You don’t belong here. It’s time for you to go.” And then, Mr. Goff had grabbed him while Mr. Kim stepped back Mr. Goff had attempted to grab him a second time. Since, according to Mr. Kim, it did not appear that Mr. Goff was going to stop coming after him and was going to hurt him, Mr. Kim punched Mr. Goff three times in the face in quick succession. Then Mr. Kim testified and ran to his truck and left before Mr. Goff or his friends pursued him.
Mr. Kim testified that he did not want to hurt Mr. Goff, did not expect to hurt Mr. Goff, and did not intend to hurt Mr. Goff.
The trial judge did not accept Mr. Kim’s testimony. Mr. Kim had been criminally charged with a complaint of assault and battery on Mr. Goff and had admitted to sufficient facts in the District Court.
The judge did accept the testimony of Mr. Goff and two other witnesses. The judge found Mr. Goff was standing in the driveway of the Lavoie house exchanging a phone number when Mr. Kim, without provocation, attacked Mr. Goff by punching him with three closed-fist punches to his face, knocking him unconscious and causing him to strike his head on the pavement as he fell to the ground.
The judge found based on these witnesses’ statements Mr. Goff had not made verbal threats or slurs against Mr. Kim, and Mr. Kim had not acted in self-defense. The judge found that Mr. Kim was “the aggressor of an intentional, vicious, unprovoked attack on the defenseless, unsuspecting [Mr.] Goff.”
Based on these rulings, the trial judge found no coverage under Quincy Mutual’s homeowner policy or the personal umbrella liability endorsement and, therefore, Quincy Mutual had no duty to defend or indemnify Mr. Kim in Mr. Goff’s suit for bodily injuries.
Mr. Goff and the Lavoies all filed appeals to the Appeals Court.
Appeals Court rules the nature of Mr. Kim’s actions established intent to harm
On appeal, the main argument of Mr. Goff and the Lavoies was that coverage should be found because Mr. Kim did not specifically intend to cause the harm to Mr. Goff that resulted when his head hit the pavement, and it was not substantially certain that such harm would occur from punching Mr. Goff in the face. Thus, Mr. Goff’s injuries resulted from an accident that is not excluded by the intentional act provisions of Mr. Kim’s homeowners policy and umbrella endorsement.
The Appeals Court rejected this argument noting the Supreme Judicial Court has stated, “the very nature of some acts carry with them an intent to cause harm as a matter of law.”
In Mr. Kim’s case, the appellate judges emphasized the evidence was clear that Mr. Kim had delivered three closed-fist punches to Mr. Goff’s face, knocking him unconscious and causing him to strike his head on the pavement as he fell to the ground. In that case, Mr. Kim’s subjective intent was legally irrelevant.
The judges cited an insurance coverage case decided by the Appeals Court in March 2017, involving a similar unprovoked attack. There the Appeals Court had held since the defendant “intended to commit the inherently harmful act, subjective intent as to the degree of injury he intended to cause is irrelevant.” See Agency Checklists’ article of April 25, 2017, “MA Appeals Court Affirms No Recovery For Assault And Battery Claim Under A Liberty Mutual Fire Insurance Homeowners Policy.”
Mr. Goff and the Lavoies have 20 days to request further appellate review
The Massachusetts Appeals Court is an intermediate appellate court. The ultimate judicial authority in Massachusetts resides with the Supreme Judicial Court. Parties dissatisfied with an Appeal Court’s decision may apply for further appellate review within 20 days of the decision by the Appeals Court. The allowance of the appeal is discretionary with the Supreme Judicial Court.
Agency Checklists will monitor this case for any further appeal.