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Vol. 13 - Issue 1

February 5, 2024


Dorchester Mutual Ins. Co. v. Miville, 204 N.E.3d 382 (Mass. 2023)


“Bodily Injury”: Some Insurers Are Making Their Lives Unnecessarily Complex
I’ve seen a few cases with this issue recently.  An insurer desires to exclude coverage for “bodily injury.”  But, instead of simply saying that “no coverage is owed for damages because of ‘bodily injury,’” as that term is defined in the policy, they take a different approach: excluding “bodily injury” arising out of “physical abuse” or use some other language that incorporates “abuse” into an exclusion for “bodily injury.”

Why this is done, I’m not sure.  Maybe it sounds more lawyer-like to do it this way.  If a lawyer drafted the exclusion, he or she may need to show that it was worth hiring a lawyer to do so.  After all, you don’t need a lawyer to simply write “no coverage is owed for damages because of ‘bodily injury.’”

In any event, insurers going down this road have faced challenges using an “abuse”-based exclusion to preclude coverage for what is run-of-the-mill “bodily injury.”  Their intent is completely frustrated by adding an utterly unnecessary term into their exclusion. 

This is what happened to the insurer before Massachusetts’s top court in Dorchester Mutual Ins. Co. v. Miville.  While I’ve seen this issue a few times, Miville comes from a state top court. In addition, the court looked to ISO drafting history in reaching its decision. For these reasons I included it as one of the ten most significant coverage decisions of 2023.

At issue was coverage for William Brengel, for a claim under a homeowner’s policy, for damages that he allegedly caused to Leonard Miville, on account of an unprovoked attack in which Brengel punched Miville in the head and repeatedly kicked him after he had fallen.

The insurer argued that no coverage was owed on account of an exclusion for “bodily injury . . . arising out of sexual molestation, corporal punishment or physical or mental abuse.”

[As an aside, it seems pretty curious that the liability section of a homeowner’s policy would exclude coverage for “bodily injury.”  That’s as if a commercial general liability policy contained a “bodily injury” exclusion.] 

Putting aside how the case reached the Massachusetts high court, the court concluded that the exclusion did not serve to preclude coverage.  The court’s decision was tied to its recent decision in a similar case, Dorchester Mut. Inc. v. Krusell (2020), where it held that “‘physical abuse’ applies ‘to a limited subset of physically harmful treatment, where the treatment is characterized by an ‘abusive’ quality such as a misuse of power or, perhaps, conduct so extreme as to indicate an abuser’s disposition towards inflicting pain and suffering.’  Because the conduct in that case — a single push by the insured — contained no such ‘abusive’ quality, we held that the abuse and molestation exclusion did not preclude coverage.”

Turning to the situation before it, with Krusell as guidance, the Massachusetts high court had no trouble concluding that no coverage was owed for the injury sustained by Mr. Miville because the attack “was not achieved by capitalizing on or exploiting an imbalance of power.”

An unsuccessful effort was made by the insurer, to find an abusive quality, on the basis that, because Brengle was 31 years older than Miville, there was a physical power imbalance that rendered the attack “physical abuse.”

Of note, in reaching its decision, the court also looked to the ISO drafting history of the “physical abuse” exclusion – sexual abuse claims in the 1980s on account of the actions of clergy members.  Based on this history, the exclusion was clearly intended for something other than a one-off physical attack: “In 1987, the Insurance Services Office, Inc., promulgated the abuse and molestation exclusion as a form endorsement for insurers to include in their general liability policies as a means to preclude coverage for all claims arising out of abuse or molestation. (citation omitted) The exclusion was to be ‘used with ‘[o]rganizations that have care or custody of others — schools, hospitals, nursing homes, day care centers, etc.’

“In adopting this exclusion, insurers’ ‘rationale was to shield themselves from liability for abuse or molestation claims where they unexpectedly could not rely upon the intentional acts exclusion to preclude coverage’ due to theories by which these claims were brought as a result of the institutional nature in which they arose.”

If you want to exclude coverage for “bodily injury,” keep it simple.




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