-: SJC-13308.
Dorchester Mutual Insurance Company v. Leonard Miville,
and another.
-: Okay. Attorney Gilday, whenever you're ready.
-: Thank you. Good afternoon.
May it please the court, Attorney Ryan Gilday here
on behalf of Leonard Miville this afternoon.
Obviously, we are here today for the sequel to the 2020 case
of Dorchester Mutual v. Krusell.
Two years ago, Dorchester Mutual came before this court
and sought a opinion that their sexual molestation,
corporal punishment and or physical or mental abuse
exclusion should be read broadly to encompass basically
any physical touching or behavior.
This court obviously rejected that argument
and held that it was to be read narrowly and to apply
only to a limited subset of physically harmful treatment
such as that, which has an abusive equality to it,
such as the mis-
-: You said perhaps.
Ryan: Yes.
-: And I know you wanna talk about perhaps,
but let's say perhaps gets adopted just for the purpose
of my question, and then you can talk about
why it shouldn't be.
Perhaps conduct so extreme as to indicate
an abuses disposition toward inflicting pain and suffering.
Is possible for physical abuse and Krusell's facts
are not as egregious as these, and so the question is,
is there a hole in Krusell to be fixed or to be filled
as it relates to facts as extreme as this?
And we've got the Connecticut Supreme Court case
relatively recently.
O'Keefe, which is not, it's different and worse.
And then we have the Alabama fraternity case,
which is a whole different, different dimension.
But the issue is, is this addressing the perhaps sentence
in Krusell with these, at least the insurance company
would call atrocious facts perpetrated by the insured?
-: Yes, correct, Your Honor.
So I guess, what the insurance company would like
for this court to do is to look at a spectrum
of physically harmful conduct.
And they would like to say, okay,
anything on the left we'll say is not abuse.
Anything to the right is abuse.
And then we can put a plot point where the push
of Krusell comes in.
And anything to the right of that,
we're gonna argue is extreme.
And thus perhaps conduct to indicate an abuser's disposition
towards inflicting pain and suffering.
Anytime they can find daylight,
they're gonna be making that argument, judge.
They're gonna be coming before the appeals court and saying,
well, you know, this is more extreme than the push.
So thus this is conduct so extreme,
but the language after perhaps in Justice Lenk's decision
is perhaps a conduct so extreme to indicate
an abuser's disposition.
So we're still going back to that qualitative aspect
of what it means to call someone an abuser
and what it means to call conduct abuse as opposed
to merely harmful treatment.
Okay.
So, and when we look at the factors of abuse,
they're simply not present in this case.
And I think what Your Honor was referencing earlier,
was the, I guess, we'll call them the footnote 22 cases
of Krusell where they talk about, you know,
it starts with the auto insurers case
of the fraternity brothers, you know,
forcing someone to jump into a pit of feces
and all kinds of horrific type behavior.
That behavior is characterized by torture, humiliation,
degradation, those types of qualitative elements
that are not found with the simple assault
that we have before us today.
The other case, Your Honor, is referenced-
-: I need to stop you there
because you reference simple assault.
This wasn't simple assault.
I mean, it may very well be that neither of you
are entitled to summary judgment and this needs to go
in front of a jury.
But there's testimony here by a neighbor of hearing
the crack of bones.
There's testimony by the assailant that he can't remember
what he did after the fact.
You've got testimony from the victim
about asking and saying stop.
And the only thing the, talk about the world
of no good deed goes unpunished.
All he's there to do is to bring his girlfriend to work.
And this was a savage, savage attack.
So how can this at all be
what we were talking about in Krusell?
-: So I think what Krusell teaches with respect
to simple assault, there's no question
that this was a violent act.
There's no question that this was a harmful act.
When Krusell talks about simple assault,
the court favorably cites the Riley v. Maison Orleans II
case out of Louisiana.
And you may recall that in that case it was just a gentleman
minding his own business in a nursing home,
and he was violently beat with a steel pipe.
And what the court in the Louisiana case said,
they weren't looking necessarily at criminal statutes.
In fact, I don't even think the criminal charges
or anything of that nature was even referenced
in that decision.
What they were drawing a distinction between
was harmful conduct, even egregious harmful conduct,
even violent harmful conduct
and conduct with an abusive quality.
That was the difference between simple assault and abuse.
And this court favorably cited that case saying that, no,
we can't, you know, even an attack with a pipe
doesn't rise to the level of abuse
without that qualitative aspect.
-: I'm sorry, Justice Gaziano, please go ahead.
-: Okay.
Is it a mistake to pull this language out of the hole
of the exclusion that needs to be read in harmony
with sexual molestation and corporal punishment?
The trouble I have is trying to interpret this statutory,
this policy language and not make it so that it has to be
a jury trial or a judge trial and go to the appeals court
every time there's some assault on a spectrum.
So this should be something that...
And what I'm looking at when I read Krusell,
I'm looking at the entire exclusion of sexual molestation,
corporal punishment and types of abuse.
And I think Justice Lenk's decision says
such as misuse of power and then has the clause
that we're talking about.
So tell me how this thing
should be read in harmony, if at all.
-: Well, that's an interesting issue, Your Honor.
I think what it comes down to is that this is the contract
that Dorchester Mutual sold
and they're trying to enforce that contract.
And what they're doing is, rather than coming up
with a new contract language,
they're coming back before the court,
as Your Honor just indicated,
to try to have that interpreted broadly
to encompass this type of contract.
I think the remedy here would be for them to reevaluate
that contract and take it through
the proper regulatory channels.
It's more of an issue for the division of insurance
and perhaps the legislator versus this court
to every time try and parse out what exactly this mean.
You've already ruled that it's ambiguous.
-: But Counsel, wasn't this attack before Krusell?
I mean, how would they know?
-: Exactly, Your Honor.
But this particular policy has been,
it's the identical language.
This policy has been deemed to be ambiguous
and thus must be read against Dorchester Mutual.
-: So at least with respect to Krusell,
one of the things that seemed to jump out of the case
is that was really focused on
the imbalance of power circumstance.
That scenario.
The issue when we talked about the ambiguity in that case
was talking about what a reasonable policy holder
would expect vis-a-vis coverage.
Now, if you're right, what we would be saying
is a reasonable policy holder would expect
that you can go out and beat somebody the way
that this person was beaten in this case.
And you would expect for that intentional act
that you would, just your garden variety policy,
you would be covered for that.
You could go out and commit this kind of act.
That's what we would be saying. Is that what we want to say?
-: Well, based on this policy, yes,
you would be covered because the exclusion does not apply.
It basically just comes down to that.
If they want to come up with after this case,
some different policy that addresses the hole almost,
if you will, that Your Honor is describing, fine, so be it.
But we're focused on this particular policy.
Perhaps it's bad language. -: In this particular clause.
I mean, we're not addressing the intentional tort clause
and the amended complaint.
So this is still going to be litigated.
We're addressing what constitutes physical abuse
without a definition and a determination Krusell
that the language is ambiguous.
-: Correct. Yes.
In essence, yes.
And it doesn't rise to abuse based on these particular-
-: No, no, I'm not saying that. I don't know.
-: In the spectrum, what is extreme conduct
in your opinion then?
-: Well, so basically, extreme conduct as Krusell teaches
would have to be conduct with an abusive element.
Perhaps, if instead of just punching
and then kicking Mr. Miville while he was on the ground,
Mr. Brengle forced him to jump in into a pit of feces
like the frat brothers, perhaps if he had stabbed him
multiple times and ripped clumps of hair out of his head
as they did in O'keefe. -: It's extreme conduct
with abuser disposed infliction of pain and suffering.
And I think the point that Justice Georges was making.
When you have, Krusell's easy to push
into the street, right?
So here we have something,
a sucker punch and a kick three times.
So doesn't that cross the rubicon into extreme conduct
and infliction of pain and suffering?
-: No, it does not.
Because you still don't have anything beyond
the simple assault, which Riley says is not enough
to make it abusive.
I'm not arguing that it's not more extreme, if you will,
or more egregious than the conducted issue in Krusell.
What I'm arguing is that it does not rise
to the level of abuse.
Those qualitative aspects of abuse that were discussed
at length in Krusell, those are absent on these facts.
They simply do not exist here.
It's impossible to get there without making massive
inferences in favor of the moving party.
-: Attorney Gilday, is there anything in Krusell
that indicates that there is a relationship
between the abuser and the victim in some way,
not just someone, you know, one off meeting?
-: Yes, absolutely.
Thank you, Your Honor.
So in Krusell, when the court was going through the history
of when this provision was typically
designed for and invoked,
it was for domestic violence situations.
There was a number of cases discussing care of children,
inmates, long term care facilities.
And what the court said, an instance where the alleged
abuser may be responsible
for the vulnerable individual's care.
That is completely absent here.
These are two strangers coming upon each other at, you know,
five o'clock in the morning on a city street.
There's no special relationship between the two here.
-: We just say that in Krusell, though, did we?
Ryan: Sorry, Your Honor.
-: We didn't say in construing
this ambiguous policy provision,
we did not say there has to be a preexisting relationship.
-: No, you did not say that there has to be
a preexisting relationship.
I'm referencing on page 445, I think,
with that line that I just read in, with the alleged abuse-
-: It's easy with them.
Obviously, sexual molestation -: Sure.
-: and corporal punishment involve relationships.
But this is a different clause.
-: Sure. Yeah.
So I don't think it would be 100% necessary,
but typically that's where the exclusion comes in
is these types of cases.
In theory, you know, to use a different part
of the exclusion, you know, the first time that you met
someone you could molest or abuse them
or something terrible like that.
I don't think the preexisting relationship exists,
but it is easier to get there when that relationship exists
versus what we have here, which is just who strangers
coming upon each other more or less.
-: I also have the rationale for the exclusion
coming into existence to address issues
where there's not an intentional tort.
And I think that gets back to what just Gaziano
was talking about, where the sexual molestation,
corporal punishment sort of suggests that physical abuse
should have a limitation to it.
And particularly one of the rationales that you've suggested
is this rose out of concerns about the church priest
misconduct cases in sexual abuse cases.
-: Absolutely.
And the language cited in Krusell,
basically the words of the contract are to be interpreted
by the company they keep.
And so the physical abuse goes back
to that same type of conduct.
Again, with the qualitative aspect of child abuse
or sexual molestation or corporal punishment.
Those types of cases that simply do not apply
to the facts at issue here.
The record has very little in it to indicate that this
was physical abuse and you simply can't get there
unless you again draw massive inferences
in favor of the moving party. -: Oh, go ahead.
-: I'm sorry.
Attorney Gilday, you mentioned something
about the policy language and if it needs to be fixed.
You mentioned something about the division of insurance.
Who's responsible for this provision?
-: Dorchester Mutual. It's their policy.
-: Okay.
'Cause you mentioned the division of insurance,
I wonder if they had some requirement
that it had to read a particular way.
-: No, no, no.
I was mentioning the vision of insurance
in the context of, you know, what are we to do
about this provision that seems to not
make a lot of a sense in certain circumstances.
Georges: Thank you.
-: And the remedy for that, I suggest,
is not before this court, it's to revisit the policy itself.
-: This isn't like a mandatory line of insurance like-
-: No, the homeowners, I think my brother
said in his brief, it's ubiquitous just because, you know,
if you have a mortgage, they're gonna want you
to have the insurance, but it's not required,
such as auto insurance in the commonwealth.
No. -: There's some line,
wherever it is, the Alabama fraternity case or somewhere,
there's some line if we adopt the perhaps sentenced
in Krusell where that line is crossed
and we find that you can infer a disposition
toward inflicting pain and suffering.
Unless we decide not to adopt that,
perhaps there's a spectrum somewhere.
-: The problem with that is the inference
towards inflicting pain and suffering,
any assault is going to have those components.
Any assault and Krusell teaches that a simple assault
does not rise to that level.
So I don't think you can-
-: It's not any assault. It's extreme conduct.
-: Correct.
But in citing the Riley case, that simple assault
does not constitute abuse, basically.
-: I mean, your better line is the abuse of power.
The abuse of power language flows
throughout the whole opinion.
The perhaps sentence seems to ignore it, maybe,
but the abuse, every one of these things,
including the list, corporal punishment, sexual molestation,
it all involves sort of this imbalance of power.
We do have lines about the relationships here
in that case, don't we?
I mean, I don't think there's simple assault.
It's clearly, the simple assault thing is not helpful.
Your line in the sand is abuse of power, isn't it?
-: Yeah, I agree that that's the more straightforward path,
if you will, towards invoking this exclusion.
My oral argument was in part dictated by the amount
of argument that my brother had in his brief concerning
the extreme conduct portion.
And indeed at this superior court level,
that's what the judge was mostly focused on.
She didn't talk at all about the, you know,
the abuse of power section.
It was just about extreme conduct.
But no, I agree and I think I have one on both paths.
I think they're both closed to the insurer
based on these facts, so.
-: Does the duty to defend aspect of this case
implicate at all how we construe this language?
-: I do not- -: And as we don't necessarily
want these kinds of questions to go to trial.
We need to know upfront whether the insurer
has a duty to defend.
How, if at all, does that affect our analysis?
-: I don't think it affects the analysis in terms of whether
the conduct fits under the physical abuse exclusion.
I don't think it touches that.
My concern is more about a duty to indemnify the...
The Krusells probably have.
Well, they're not here, but...
Not the Krusells, the Brengles would be more vested
in the defense portion of it.
But I don't think that the analysis changes
based on the duty to defender, the duty to indemnify.
So if there's no other questions, I thank you very much.
Budd: Okay. Thank you.
Attorney Graceffa.
-: May it please the court, John Graceffa,
here for Dorchester Mutual Insurance Company.
Yes, indeed, we were here two years ago.
Same insurance company, extremely different situation.
As I think Justice Georges has pointed out correctly,
the purpose of this insurance policy is not to indemnify
someone for a unprovoked violent attack.
The words physical abuse appear in this policy for a reason.
The intentional conduct exclusion requires intent.
If you have a mental issue
or a intoxication issue and so forth,
that is not utilizable and it was not used here.
The purpose of this exclusion was put in,
arising out of the diocese cases, the sexual abuse cases
and the physical abuse cases themselves.
This court's line in Krusell-
-: That's where you lose me, 'cause I know,
I do realize they're out of the sexual abuse cases.
Those are the domestic violence cases.
They're out of the church cases and the abuse of kids.
But I thought what we were doing in Krusell was saying,
okay, and particularly with Justice Gaziano
in the beginning, we had these,
it's surrounded by these terms,
corporal punishment and it's an abuse of power case,
and then Justice Lenk and the rest of us
add this perhaps clause, which is pure dictum
and probably not thought through,
but it's an abuse of power standard, isn't it?
-: Each one of these terms, Justice Kafker, stands alone.
They're disjunctive.
The words. -: Related to each other.
-: Well... -: Physical abuse is something
you do in an imbalance situation.
And that's like, the frat case is a good example.
The seniors in the frat are torturing the freshmen
or the people trying to get into the fraternity.
It just seems like they're all consistent with each other.
But it's not about how hard you punch somebody.
-: Well, it's a manifestation of power.
And we had an extreme imbalance of power in this situation.
We had a 6'4" 300-pound 30-year-old leap off a porch
onto an elderly person, sucker punch him,
kick him, assault him, and so forth.
Krusell, as you know, by contrast was a push.
One push. The fellow fell down and he broke his arm.
This was a long, unprovoked, multifaceted assault.
I don't think there's anything in the policy that limits
this to a power situation or a qualitative abuse situation.
Physical abuse under the Black's Law Dictionary
and under the Webster's dictionary is harmful treatment.
-: We already- -: Are we supposed to not look
at it in context of, as counsel said,
the company keeps with sexual molestation
and corporal punishment?
-: I think each term stands alone.
They are in the same exclusion,
but you read them separately.
Corporal punishment, sexual abuse.
-: But then when we go to our language in Krusell,
and it says characterized by an abusive quality,
such as misuse of power,
which relates to corporal punishment, et cetera.
John: Right.
-: And then extreme in conduct with the abuser
disposed to infliction of pain and suffering.
So, that extreme conduct with the abuser,
again keeps company with misuse of power.
It's part of the such as.
-: But the term, Justice Gaziano,
is physical abuse read alone.
And here, we have precisely that.
And in Krusell, this court drew a line.
-: And I'm struggling with this line as to what,
and then I get what Justice Georges was saying,
what you are saying about the egregiousness and, you know,
arguably misuse of power when you have a jacked 30-year-old
sucker punching a 60-year-old, right?
John: Right.
-: But I'm just trying to figure out where that line
is between the push.
Are we supposed to litigate all these?
Are we supposed to...
-: I've thought about that question.
It's a very good question
and it's a question for this court.
It's a question for my client.
We make these decisions every day and situations.
This policy is meant to encompass a myriad
of situations that come up, and will every physical touching
fall within the exclusion?
The answer is no.
Was a simple push in Krusell within the exclusion?
This court said no, but let's think about the other extreme.
When an insurer has presented a situation
with assault and battery with a 38-caliber pistol,
a pistol whipping or something like that.
Is that something that's insurable
under a homeowner's policy, that as Justice George has said,
would a reasonable homeowner,
a reasonable insured read their policy and said,
well, I've just pistol whipped somebody.
I'm gonna send a notice
to the Dorchester Mutual Insurance Company
and ask them to defend me in this situation.
-: Well, the overwhelming, not always, as you've pointed out,
we've got issues where there's mental health issues
that could impact.
You could have diminished capacity situations,
all sorts of situations.
But the overwhelming majority of those circumstances
are going to be covered by the intentional tort exclusion.
It's not like the sky's going to fall down.
-: Yes and no, Your Honor.
I mean, we have the Talhouni situation.
The fellow on LSD and things like that.
The reason for this exclusion is we are going to be
confronted with these situations of extreme intoxication,
drug use, mental illness and so forth.
None of those count in this situation.
This exclusion is driven by the event. The event.
-: So I keep on going back to the,
as Justice Gaziano started us off with,
with the series here of three,
because we're in a situation where the ambiguous clause
is interpreted against the insurance company,
which is even augmented when it's an exclusion.
And we have two types of coverage situations,
sexual molestation and corporal punishment
that really are pretty limited.
And then you'd have physical abuse.
If you can just fit all of these type of assaults
into physical abuse, at some point, you know,
what's left for coverage?
-: Well, I mean, this covers an accident.
This covers, if somebody pushes somebody at a baseball game
or something like, playfully or something like that,
yes, there is coverage for something like that.
That's not this situation.
This situation, and it's difficult.
I hear Justice Gaziano.
I mean, where is the line gonna be drawn here?
And once again, this is a line that we draw all the time.
We make these decisions.
Is this an appropriate case which would fall
within this exclusion in Krusell?
-: Well, but what's your standard?
I know you do it, but...
So if there's a standard for abuse of power, I understand,
but if the standard is little pushes are okay
and big pushes are not, then I get confused.
Or if Justice Georges, who's a big guy, hits somebody,
it's covered and I'm a weakling, it's not.
I mean, I'm just trying to understand
how we're gonna do that.
-: Well, I think what we need to do is we need to look
at all of the factors in the case.
For example, if this court said in Krusell,
look to the statutes, look to the regulations,
what is the definition of abuse?
This kid was charged under 265, 13 1/2
or whatever the statute was,
assault and battery of an elderly person with a shod foot.
He kicked him in the head.
This case is from this court saying
that's not simple assault.
That's punishable by 10 years
in the state prison. -: So is standard
simple assault?
Your view is the standard is simple assault versus what?
-: Simple assault versus a felony chargeable offense
on an elderly person.
-: That still concerns me because you still may have
misdemeanor assault that is really egregious,
and to the victim, it may not be a felony, but it's still...
I mean, if we were to say
that that's the line of demarcation,
felony versus misdemeanor, there's a whole lot of real harm
that happens under the misdemeanor.
Could you just, Counsel, could you let me know,
maybe I missed this in the record.
How was the criminal case resolved?
-: Plea and a plea.
He pled guilty to 265 assault and battery.
And then 265, 13 1/2 assault and battery
on an elderly person.
-: So may I ask, why isn't the intentional conduct provision
more apt here than this provision?
-: Because this fellow had a history
of schizophrenia and mental illness.
And under the Talhouni case where the fellow was on LSD
and he assaulted somebody,
this court held that the intentional conduct exclusions
didn't apply because it vitiated the intent.
-: But if you have a plea, I'm assuming the plea judge
would have had to find the defendant competent
in order to enter a plea against him.
-: I wasn't there, Your Honor. I don't know.
I think he was ultimately released
and he served some type of,
in a mental health facility and so forth.
But those, that point doesn't apply in this-
-: I understand it doesn't apply.
But there is an amended complaint suggesting
that the intentional tort exclusion applies here, right?
-: Yes. But we're not relying upon that here today.
-: I completely understand.
-: I'm confused, though, a little bit.
So there's an intentional tort exclusion in the policy.
I know we're not talking about it today,
but we're trying to understand what the meaning
of this provision is then in light of the fact
that there's also an intentional tort exclusion.
So.
Does does that inform our analysis that-
-: I think so.
Under the Quincy Mutual case,
this court held that the intentional conduct exclusion
was not appropriate for summary judgment.
That it required a finding of intent.
Later, there was another case that said you need only,
the (indistinct) case, you need only intend the harm,
not the quantity of the harm, but some harm.
But then you have the line of cases that say
that that exclusion doesn't apply in situations
of extreme intoxication and so forth.
So we did not rely upon it
-: Right. -: for purposes here.
-: I'm making a slightly different point, which is okay,
that helps us frame what this,
thing is dealing with a different problem.
John: Right.
-: And to me, that suggests that it's more an...
I may be wrong, but it suggests it's more dealing
with abuse of power scenarios, because the intentional
tort one is picking up this kind of behavior
in most circumstances where, you know,
you go beat your neighbor up.
You're not gonna get covered
'cause you're an intentional tort situation.
-: But you also, this court said in Krusell,
it's applicable in a situation where you do have a situation
where you do not have intent,
that somebody may be mentally ill.
Justice: Should we revisit Krusell?
Should we revisit Krusell?
Is that the issue?
-: He wants us to revisit it, but multiple ways.
(group laughing)
-: I think the language in Krusell,
perhaps conduct so extreme,
and I went through this with the appeals court too.
I mean, that's where we really are in this.
The languages in the decision, we relied upon it
and that's why we are here today.
-: It is that last clause that has given us the issues
and the adjective, right?
-: Yes.
I think the courts, the companies are guided
by what this court says, and we were guided by
what this court said in Krusell as well as every other
insurer in the commonwealth.
We all have the same exclusion.
This is in tens of thousands of policies,
-: He's right. -: as you know.
And the problem that we're having
from an industry point of view is that this policy,
this homeowner's document was never meant to apply
to a situation where somebody intentionally
and or engages in this type-
-: I think, as Justice Kafker points out,
that's usually covered by the intentional tort.
John: I didn't hear-
-: That's usually covered by the intentional tort exclusion.
Correct? -: Right, right.
-: I mean, that means that we're dealing
with sort of a particularly narrow problem.
The sky is not gonna fall if...
We're not gonna be allowing, again, all our neighbors
to go punch out their neighbors when they're mad at them
because the intentional tort exclusion
is gonna pick up all of those.
We're dealing with this kind of oddity here,
which is a mentally ill person running off.
And then you're using this exclusion that normally
has been applied to, you know, church cases
and domestic violence cases.
So, we're turning a square peg into whatever.
-: It arose out of that context, as we all know.
But it's not limited to that context.
-: What's its impact in your view on negligent supervision?
John: I didn't hear the beginning of that.
-: Negligent supervision cases.
Is that one of the reasons, you think,
for this clause? -: Yes. Yes.
I think both of those points articulated in the Krusell case
were right on the money, that this was put in there
for the mental illness situation
and the negligence supervision situation
because they relate to the event.
And I'd asked this court to focus on the event here today.
And once again, I anticipated the question
and it was asked as to where do we draw the line
and who's gonna make this decision?
And the standard will be in whatever you decide,
we'll certainly follow it.
But these are decisions we make all the time.
But I'd say this situation is at the end of the spectrum.
This was a vicious assault and it's not insurable.
It's excluded under the policy.
The words are in the policy and as this court knows,
you're to read all the words in the contract,
and it's in the contract
and it's a different situation than Krusell.
So for all those reasons, we would ask the court to affirm
the decision of The Superior Court and declare
that there is no duty to indemnify here.
The company has been defending.
I don't know, Your Honor, if we mentioned that in the brief,
but if you decide to go along with that position,
obviously, there would be no duty to defend or indemnify.
But currently, we are under reservation
of rights and defending.
I appreciate the attention and the questions of this court.
It's always a pleasure.