NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
19-P-1407 Appeals Court
COSMIN MARCULETIU vs. SAFETY INSURANCE COMPANY & others.1
No. 19-P-1407.
Middlesex. June 11, 2020. - October 2, 2020.
Present: Rubin, Milkey, & Massing, JJ.
Insurance, Coverage, Insurer's obligation to defend, Construction of policy. Contract, Insurance. Rape. False Imprisonment. Negligence. Employment, Sexual Harassment. Practice, Civil, Dismissal, Declaratory proceeding.
Civil action commenced in the Superior Court Department on January 25, 2016.
Motions to dismiss were heard by Rosemary Connolly, J., and Salim Rodriguez Tabit, J.; motions for reconsideration were considered by them; and the entry of judgment was ordered by Bruce R. Henry, J.
James E. Grumbach for the plaintiff. Sharon S. Angelino, of Connecticut, for National Casualty Insurance Company. Tanya T. Austin for Safety Insurance Company.
1 National Casualty Insurance Company, International Ballet Academy of Norwell, Inc., doing business as New England Movement Arts, and L.C. 2
MILKEY, J. When their paths first crossed in 2013, Cosmin
Marculetiu and L.C. were ballet dancers at markedly different
points in their respective careers. Marculetiu, then forty-
four, had become a dance instructor of international renown.
L.C., then twenty-three, had just completed college and hoped to
make a career out of being a professional dancer. L.C. took
some classes at a dance studio in Burlington operated by
Marculetiu's company, International Ballet Academy of Norwell,
Inc. (IBAN), and she appeared in performances of a ballet
produced by IBAN. Any professional relationship between L.C.
and Marculetiu ended in 2014 after she accused him of raping her
during a trip to Romania for an international ballet
competition. The following year, L.C. filed a multi-count civil
action in Superior Court against Marculetiu and IBAN.
Marculetiu denied L.C.'s allegations and counterclaimed for
defamation, intentional interference with advantageous
relations, and abuse of process. Both L.C.'s tort action
(underlying case) and Marculetiu's counterclaims remain pending.
The appeal before us involves insurance coverage related to
the underlying case. In 2016, Marculetiu filed a declaratory
judgment action against National Casualty Insurance Company
(National), which was IBAN's comprehensive general liability
(CGL) insurance carrier, and Safety Insurance Company (Safety),
his own homeowner insurance carrier. He alleged that both 3
insurers had a duty to defend the underlying action, as well as
a duty to indemnify him should he be held liable for damages in
that action. Based principally on the fact that the underlying
action involved allegations of rape and other intentional sexual
assaults, each insurer filed a motion to dismiss claiming that,
as a matter of law, it had no duty to defend or indemnify
Marculetiu. The motions were allowed by separate judges, and
judgment entered for the defendants. Marculetiu's motions for
reconsideration also were denied, and Marculetiu appealed. For
the reasons that follow, we affirm, albeit on different grounds
than relied upon by either judge.
Background. 1. The claims set forth in the underlying
action. Because the complaint in the underlying action provides
the touchstone of whether the insurers had a duty to defend
Marculetiu, we begin by summarizing the allegations set forth
there.
According to her complaint, L.C. first met Marculetiu in
August of 2013 when she attended a dance class at IBAN's studio
in Burlington. The context of the meeting was that one of
Marculetiu's students needed a new dance partner, and L.C. was
trying out for that role. L.C. alleges that Marculetiu was
impressed with her dancing skills and that he wanted her to
dance under his tutelage and to perform in various productions
with which he was associated. She began attending classes at 4
the Burlington studio, during which -- she alleges -- Marculetiu
sometimes touched her in a manner that made her uncomfortable.
Together with her new partner, L.C. danced in performances of
the Nutcracker Suite that IBAN produced. She also agreed to
serve as a substitute dance instructor at the Burlington studio,
although her services in that capacity apparently were never
utilized. L.C. alleges that Marculetiu used his position of
authority to gain her "trust and confidence."
According to the complaint, Marculetiu convinced L.C. to
compete in the "World Ballet Competition" to be held in Romania
in March of 2014. Marculetiu, who is originally from Romania,
co-founded the event and served as one of its judges. He told
L.C. that he would introduce her to many important people at the
event, and that her attending it would be a boost to her career
by "land[ing] her dancing contracts all over the country and
world."
L.C. alleges that on the plane flight over to the dance
competition, she awoke to find Marculetiu groping her with his
hands under her shirt and down her pants. According to her,
once they were in Romania, Marculetiu entered her hotel room (to
which he had his own key), professed his love for her, "then
forcibly removed her clothes and pushed her onto the bed, where
he sexually assaulted her." Over the next several days, she
alleges, he "repeatedly raped and sexually assaulted her" in her 5
room. The complaint alleges that she was in an especially
vulnerable position given that she was traveling alone in a
foreign country where she did not speak the native language.
According to L.C., after four days of sexual assaults, she
told Marculetiu that she did not want to have sex with him and
had pretended to be in love with him only because she was scared
of what he might do to her, including potentially not letting
her return to the United States. She alleges that he initially
was remorseful to hear this but then renewed his sexual assaults
of her. She claims that on one occasion he raped her after he
must have put a drug in her drinks, because -- after consuming
six drinks -- she "could barely walk by herself or see
straight." Marculetiu denies that he had any form of sexual
contact with L.C. or that he ever made any sexual advances
toward her.
L.C.'s complaint included ten counts brought against
Marculetiu.2 Five of the counts allege various forms of sexual
assault: rape, assault and battery, indecent assault and
battery, assault with intent to rape, and drugging for sexual
intercourse. The remaining counts are for intentional
infliction of emotional distress, false imprisonment,
2 All ten counts were also brought against IBAN. In addition, L.C. brought two counts against IBAN only, one based on respondeat superior and another for negligent supervision and retention. 6
negligence, breach of fiduciary duty, and loss of consortium.
Further details regarding these counts are reserved for later
discussion.
As explained below, whether National owed Marculetiu any
duties under IBAN's CGL policy was resolved first, based only on
the allegations in L.C.'s complaint in the underlying action.
When the second judge addressed Safety's duties under the
homeowner's policy, he had before him some additional factual
materials that had been elicited in discovery. Then, after both
motions to dismiss had been allowed, Marculetiu filed a motion
seeking reconsideration of both rulings, and attached to that
motion were additional discovery materials, including deposition
transcripts. In particular, the transcripts of the depositions
of L.C., and of one of her therapists, provide illuminating
detail about what she specifically was alleging occurred during
the trip to Romania.3 For present purposes it suffices to note
the following. At least with respect to some of the sexual
encounters that L.C. alleged, certain statements that she made -
3 The deposition transcripts also included a deposition of Marculetiu, who flatly denied that anything untoward happened during the trip. Marculetiu also provided a markedly different version of his professional relationship with L.C. He characterized her as someone who occasionally took adult group classes that were open to all, not as a promising dance student whom he individually had taken under his wing. With respect to his having hired L.C. for a lead role in the Nutcracker Suite, he portrays this as a last-minute substitute for another dancer who had to withdraw for medical reasons. 7
- either directly in her deposition or to her therapist -- could
be taken by a fact finder as being in tension with her claims
that any actions taken by Marculetiu rose to the level of
forcible rape. For example, L.C. stated that she, at various
points, affirmatively took actions expressly designed to make
Marculetiu believe that she welcomed a sexual relationship with
him.4 At the same time, the deposition transcripts also suggest
that if L.C. acquiesced to any sexual advances that Marculetiu
might have made, she did so in the context of a mentor-mentee
relationship in which there was a significant imbalance of
power.
2. Relevant policy provisions. a. CGL policy. IBAN
purchased a CGL policy from National. The "coverage territory"
under the policy is defined to include not only the United
States, but "[a]ll other parts of the world if the injury or
damage arises out of . . . activities of a person whose home is
in [the United States], but is away for a short time on [the
insured's] business . . . ."
IBAN itself is the principal insured under the CGL policy.5
However, employees of IBAN are also insureds, "but only for acts
L.C. alleges that she did so at least in part out of fear 4
of reprisals from Marculetiu.
In fact, National provided counsel for IBAN in the 5
underlying action. 8
within the scope of their employment by [IBAN] or while
performing duties related to the conduct of [IBAN's] business."
Similarly, IBAN's "'executive officers' and directors are
insureds, but only with respect to their duties as [IBAN's]
officers or directors."
Three types of coverage under the CGL policy potentially
apply. "Coverage A" applies to property damage and bodily
injury claims caused by an occurrence. "Occurrence" is defined
in the standard manner to "mean[] an accident." Various
exclusions apply to Coverage A, including one for injuries
"expected or intended from the standpoint of the insured."
"Coverage B" applies to "personal and advertising injury,"
which is defined to include claims for false imprisonment.
Various exclusions apply. One is for "'personal and advertising
injury' caused by or at the direction of the insured with the
knowledge that the act would violate the rights of another and
would inflict 'personal and advertising injury.'" Another
exclusion is for "'personal and advertising injury' arising out
of a criminal act committed by or at the direction of the
insured."
By separate endorsement, IBAN also purchased "professional
liability coverage for sports or fitness activities." This
coverage applied to claims for bodily injury or property damage
caused by a "wrongful act," which was defined to include "any 9
breach of duty, neglect, error, omission, misstatement, or
misleading statement in the discharge of 'sports or fitness
activities.'" Various exclusions apply, including one for
"[a]ny claim or 'suit' arising out of either undue familiarity,
sexual abuse or licentious, immoral or sexual behavior intended
to lead to, or culminating in any sexual act, whether caused by,
or at the instigation of, or at the direction of, either known
or unknown by any insured or the customers or patrons of the
[n]amed insured."
In addition to the individual exclusions that apply to each
type of coverage, the CGL policy included a separate endorsement
entitled "SEXUAL ABUSE EXCLUSION -- ILLINOIS." The body of the
exclusion states that coverage "does not apply to any claim,
'suit' or cause of action, including defense of same, for any
person who actively participates in any act of sexual
misconduct, sexual molestation or physical or mental abuse of
any person." It further states that "[t]his exclusion shall
apply regardless of the legal form any claim may take by way of
negligence, breach of contract or assault."
b. Homeowner's policy. Marculetiu and his wife purchased
a homeowner's policy from Safety in connection with their home
in Quincy. Under "Coverage E," that policy covered personal
liability claims brought by third parties "for damages because
of 'bodily injury' . . . caused by an 'occurrence.'" 10
"Occurrence" again is defined in the standard way to mean "an
accident."
Various exclusions generally apply to Coverage E. One is
for bodily injury that is "expected or intended by the
'insured.'" Another -- known commonly as the "business pursuits
exclusion" -- is for injury "[a]rising out of or in connection
with a 'business' engaged in by an 'insured.'" A third is for
injury "[a]rising out of sexual molestation, corporal punishment
or physical or mental abuse."
By way of separate endorsement, the homeowner's policy also
included "personal injury" coverage under Coverage E. "Personal
injury" is expressly defined to include "injury arising out of
. . . [f]alse arrest, detention or imprisonment." The separate
endorsement providing such coverage states that "[e]xclusions do
not apply to 'personal injury.'" It then goes on, however, to
list six types of injury that are not covered. Among these is
"[i]njury caused by a violation of a penal law or ordinance
committed by or with the knowledge or consent of an 'insured.'"
Another such provision uses language identical to the business
pursuits exclusion generally applicable to Coverage E.
3. The Superior Court rulings. a. National's motion to
dismiss. In moving to dismiss Marculetiu's action, National
argued, inter alia, that coverage in any event was expressly
excluded by the endorsement entitled "SEXUAL ABUSE EXCLUSION -- 11
ILLINOIS." In a ruling entered in January of 2017, a Superior
Court judge (first judge) rejected that argument, because she
agreed with Marculetiu that the endorsement was ambiguous with
respect to whether it applied only in Illinois or more
generally.
The first judge nevertheless ruled in National's favor on
other grounds. She concluded that all of the counts in the
underlying action except for negligence and breach of fiduciary
duty "alleged intentional conduct (for example, false
imprisonment) or criminal conduct (for example rape, drugging
someone for the purpose of having sex, assault and battery)"
that were excluded by "clear policy language." With respect to
the counts alleging negligence and breach of fiduciary duty, she
concluded that while these nominally were brought against both
IBAN and Marculetiu, they "are directed to IBAN . . . and not to
[Marculetiu] himself." The judge did not address whether
Marculetiu's alleged actions were sufficiently related to his
various roles at IBAN as to entitle him to coverage under IBAN's
CGL policy as an executive officer, director, or employee.
b. Safety's motion to dismiss and Marculetiu's cross
motion. Safety eventually filed its own motion to dismiss.
Marculetiu opposed that motion and cross-moved for partial
summary judgment with respect to Safety's duty to defend.
Appended to Marculetiu's motion were certain limited discovery 12
materials (not including the deposition transcripts referenced
above).
In August of 2017, a different Superior Court judge (second
judge) allowed Safety's motion to dismiss and denied
Marculetiu's cross motion for partial summary judgment. He
concluded that the underlying action alleged intentional sexual
misconduct for which no coverage would lie either because any
injury was not caused by an "occurrence" or because the injury
was excluded as "expected or intended" by Marculetiu. To the
extent the underlying action sought to bring a count against
Marculetiu based on negligence, the judge concluded that such a
"count is more properly construed as an intentional tort."
Similarly, the judge concluded that the count based on an
alleged breach of a fiduciary duty also was excluded because "it
was Marculetiu's alleged intentional conduct that breached the
duty."
With respect to the false imprisonment count, the judge
characterized the claim as "inseparable from the sexual assault
allegations," stating that it "relates directly to the
allegation that Marculetiu held [L.C.] down while assaulting
her." The judge separately ruled that "even assuming [the false
imprisonment count is] separate from the intentional torts and
[is] potentially covered under the personal liability section of
the policy, [it] would be specifically excluded as 'injuri[ies] 13
caused by a violation of a penal law or ordinance committed by
or with the knowledge or consent of an "insured."'" The second
judge did not reach the question whether the business pursuits
exclusion applied.
c. Motion for reconsideration. Marculetiu filed a motion
for reconsideration of the allowance of National's and Safety's
motions to dismiss. As noted, Marculetiu appended to that
motion various deposition transcripts and other additional
factual material. The two motion judges denied their respective
portions of the motion. This appeal followed.
Discussion. 1. Legal framework and standard of review.
As noted, Marculetiu alleges that each insurer owed him both a
duty to defend and a duty to indemnify. We focus principally on
the duty to defend, because "[i]t is axiomatic that an insurance
company's duty to defend is broader than its duty to indemnify."
Boston Symphony Orch., Inc. v. Commercial Union Ins. Co., 406
Mass. 7, 10 (1989).
Although the insured bears the burden of demonstrating that
his insurer's duty to defend has been triggered, that burden is
satisfied by a showing of a mere "possibility" of coverage.
Billings v. Commerce Ins. Co., 458 Mass. 194, 201 (2010). The
question is whether the underlying allegations brought against
the insured "are reasonably susceptible of an interpretation
that states or roughly sketches a claim covered by the policy 14
terms." Id. at 200. As Justice Kaplan put it almost four
decades ago, "the process is one of envisaging what kinds of
losses may be proved as lying within the range of the
allegations of the complaint, and then seeing whether any such
loss fits the expectation of protective insurance reasonably
generated by the terms of the policy." Sterilite Corp. v.
Continental Cas. Co., 17 Mass. App. Ct. 316, 318 (1983).
"The duty to defend is determined based on the facts
alleged in the [underlying] complaint, and on facts known or
readily knowable by the insurer that may aid in its
interpretation of the allegations in the complaint." Billings,
458 Mass. at 200, citing Boston Symphony Orch., Inc., 406 Mass.
at 10-11. An insured's denial of the underlying allegations has
no bearing on whether a duty to defend exists, because coverage
turns on the nature of those allegations, not on whether they
are true.
As to both insurance policies here, the question we face is
whether each motion judge correctly determined that the
respective insurer had no duty to defend Marculetiu as a matter
of law. Our review of that question is de novo. See Pacific
Indem. Co. v. Lampro, 86 Mass. App. Ct. 60, 63 (2014); Norfolk &
Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass.
App. Ct. 40, 47 (2011) (Cleary). Strictly speaking, the two
halves of the case come to us in slightly different procedural 15
postures, because the second judge had before him certain
factual material that the first judge did not, and the legal
issues raised were considered in part in the context of summary
judgment. In the end, those slight differences are not
material, and no party argues otherwise on appeal. As noted,
Marculetiu also brought additional factual material to the
judges' attention when he moved for reconsideration. Putting
aside whether the judges were required even to consider that
additional material, that material does not ultimately affect
the outcome of this case.
The dispute before us is relatively narrow. Marculetiu
makes no claim that either insurer has a duty to defend or
indemnify him with respect to L.C.'s core allegations that he
raped her or otherwise committed intentional sexual assaults
against her. Instead, he argues that the insurers' duties are
triggered by three other claims that L.C. brought: breach of
fiduciary duty, false imprisonment, and negligence.6 We examine
each insurer's duties regarding these counts in turn. With
respect to each policy, we first review the grounds on which the
judge relied in ruling in the insurer's favor, and then turn to
6 As a general rule, if an insurer has a duty to defend part of an action, it must defend the entire action. See GMAC Mtge., LLC v. First Am. Title Ins. Co., 464 Mass. 733, 738-739 (2013), and cases cited. 16
the potential alternative grounds for affirmance that each
insurer has argued.
2. CGL policy. L.C.'s complaint names both Marculetiu and
IBAN as defendants with respect to her breach of fiduciary duty
claim (count IX). Nevertheless, the first judge ruled that this
count did not trigger National's duty to defend Marculetiu,
because she concluded that it effectively was directed only at
IBAN, not Marculetiu. We disagree. For the reasons that
follow, we conclude that the breach of fiduciary duty count
"roughly sketches" a claim against Marculetiu even without
applying the liberality that the cases mandate that judges
employ in assessing whether an insurer's duty to defend has been
triggered.
In count IX, L.C. alleges that Marculetiu (and IBAN) owed
her, as "a ballet student," a fiduciary duty that they breached.
She further alleges that Marculetiu (and IBAN) "were in a far
superior position of knowledge, authority, control and power
over [her], and given the circumstances she was placed in, [she]
was unable to protect herself alone against harm and abuses of
trust." Although not formally labeled as such, count IX sounds
in terms of a claim for sexual harassment against both
Marculetiu and IBAN. See G. L. c. 151B, § 1 (18) (providing
statutory definition of "sexual harassment"). See generally
Bagley v. Monticello Ins. Co., 430 Mass. 454, 458 (1999) ("It is 17
the source from which the plaintiff's personal injury originates
rather than the specific theories of liability alleged in the
complaint which determines the insurer's duty to defend"
[emphasis and citation omitted]). Because the count alleging
breach of fiduciary duty is not directed only against IBAN, the
sole ground upon which the first judge relied in concluding that
it did not raise a possibility of coverage is untenable.
We also disagree with the first judge's reasoning that
L.C.'s count alleging false imprisonment raised no possibility
of coverage. The judge explained that this count did not
trigger coverage because it was an "intentional" act that in
some unidentified way was expressly excluded. Not only did IBAN
purchase personal liability coverage that expressly included
coverage for "false imprisonment," an intentional tort, but also
under the terms of such coverage the exclusion for "expected or
intended" conduct does not even apply.7
Although we disagree with the specific grounds on which the
judge relied, we can affirm the judgment on any grounds fairly
addressed by the record. See Gabbidon v. King, 414 Mass. 685,
7 Unlike count IX, alleging breach of fiduciary duty, count VIII -- which alleges negligence nominally against both IBAN and Marculetiu -- is directed almost entirely against IBAN. Moreover, the complaint otherwise alleges that Marculetiu's actions were intentional. Given our resolution of this appeal, we need not resolve whether L.C.'s allegations could -- on the margins -- make out a case of negligence against Marculetiu. 18
686 (1993). We therefore turn to the additional arguments that
National raises.
National's lead argument for why there is no possibility of
coverage is that any injuries that L.C. suffered from
Marculetiu's alleged conduct could not be considered
"accidental" as a matter of law.8 The key question in resolving
that issue is not whether Marculetiu intended the alleged
actions that caused such injuries, but instead whether he
specifically intended to cause the injuries themselves. See
Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984)
("injury which ensues from the volitional act of an insured is
still an 'accident' within the meaning of an insurance policy if
the insured does not specifically intend to cause the resulting
harm or is not substantially certain that such harm will
occur").9 Accord Dorchester Mut. Ins. Co. v. Krusell, 485 Mass.
8 This argument goes to Marculetiu's efforts to seek coverage under Coverage A, which requires the injury at issue to have been caused by an "occurrence." As noted, IBAN purchased separate professional liability coverage, but that coverage is subject to an express exclusion for "undue familiarity, sexual abuse or licentious, immoral or sexual behavior intended to lead to, or culminating in any sexual act." Unsurprisingly, Marculetiu is not claiming that National owes him duties under the professional liability coverage.
9 In Quincy Mutual, the court reversed the allowance of summary judgment in favor of an insurer with respect to allegations that the insured intentionally had thrown a "large piece of [asphalt]" at a car that injured the car's occupants. 393 Mass. at 82. The court concluded that a specific intent to injure could not be inferred as a matter of law from the 19
431, 436 n.11 (2020). Thus, the commission of an intentional
tort does not necessarily preclude the resulting injuries from
being considered "accidental" for purposes of assessing
insurance coverage.
Notably, L.C. can make out a claim of sexual harassment
without alleging that Marculetiu's actions amounted to rape or
other forms of intentional sexual assault. She need claim only
that Marculetiu abused his position of power as her employer or
teacher by making unwanted sexual advances toward her.10 See,
e.g., Morrison v. Northern Essex Community College, 56 Mass.
App. Ct. 784, 785, 789-792 (2002) (student athletes asserted
sexual harassment claims under Title IX of Education Amendments
of 1972, 20 U.S.C. § 1681, and G. L. c. 151C, § 2 [g], by
alleging their coach made sexual comments towards them, touched
intentional act of throwing the asphalt. Id. at 87-88. See Preferred Mut. Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 200- 201, S.C., 426 Mass. 93 (1997) (where underlying claim was that insured had injured police officer's knee by forcibly grabbing his belt, insured's intent to injure officer could not be determined as matter of law).
10In the current appeal, no party has focused on whether Marculetiu in fact qualified as L.C.'s employer or teacher for purposes of maintaining a sexual harassment claim. See Lowery v. Klemm, 446 Mass. 572, 580 & n.10 (2006). There is certainly enough in L.C.'s complaint to "roughly sketch" that Marculetiu served in such a capacity. Moreover, whether such a relationship existed goes to whether Marculetiu has defenses that he could raise to a sexual harassment claim, not whether the insurers had a duty to defend him regarding such a claim. The same would apply to other potential defenses to a sexual harassment claim. 20
them in inappropriate ways, and engaged in other sexually
harassing activities). She need not prove that Marculetiu's
actions amounted to rape or other forms of intentional sexual
assault. While it may well be that someone found liable for
sexual harassment specifically intended to injure the person
being harassed, we do not believe that a specific intent to
injure must be inferred as a matter of law. Indeed, as we
previously have noted in a case involving insurance coverage,
the statutes governing sexual harassment claims "provide that
sexual harassment may occur in the absence of an intent to
injure." Timpson v. Transamerica Ins. Co., 41 Mass. App. Ct.
344, 351 & n.4 (1996). See Maine State Academy of Hair Design,
Inc. v. Commercial Union Ins. Co., 1997 ME 188, ¶¶ 8-9 (bodily
injury incurred by victim of sexual harassment "was at least
potentially unanticipated," thus precluding decision that injury
was not accidental as matter of law). With regard to the
specific allegations that L.C. has raised, it is possible to
imagine a jury concluding that Marculetiu committed actionable
sexual harassment without possessing a specific intent to cause
her injury.11 Contrast Liberty Mut. Fire Ins. Co. v. Casey, 91
11Perhaps the strongest support for a jury to conclude that Marculetiu may not have intended to harm L.C. when he allegedly made sexual advances toward her is found in the deposition transcripts. These were not before either judge when they initially ruled on the motions to dismiss. However, even in her 21
Mass. App. Ct. 243, 247, 252 (2017) (because it was "undisputed
that [insured] punched [victim] multiple times and kicked him
once in the face," insured's intent to injure victim established
as matter of law).
In claiming that an intent to injure L.C. must be inferred
as a matter of law even with respect to her breach of fiduciary
duty claim, National relies on two opinions from the Supreme
Judicial Court. See Doe v. Liberty Mut. Ins. Co., 423 Mass.
366, 369-371 (1996) (Doe); Worcester Ins. Co. v. Fells Acres Day
Sch., Inc. (Fells Acres), 408 Mass. 393, 398-403 (1990). In
Fells Acres, the insurers maintained that they had no duty to
defend or indemnify the insureds, who had been convicted of
molesting and raping children at a day care center. 408 Mass.
at 397-398. Specifically, the insurers argued that the injuries
suffered by the children were not "accident[al]" and therefore
did not result from an "occurrence[]." See id. at 399. For
essentially the same reason, the insurers also argued that the
injuries were "expected or intended from the standpoint of the
insured" and were therefore excluded from coverage in any event.
Id. at 398 & n.6. The court agreed, concluding that "an intent
to injure may be inferred as a matter of law from acts of child
molestation and rape." Id. at 401.
complaint itself, L.C. alleged that she had "pretend[ed] to be in love with" Marculetiu. 22
In Doe, the underlying allegations were that a junior high
school principal used his position to gain the trust of a
student whose breasts and genital area he then fondled. 423
Mass. at 367-368. Applying Fells Acres, the court concluded
that, as a matter of law, the insured's alleged actions are
presumed to have been carried out with an intent to injure the
student. Id. at 369-370. Accordingly, the court held that the
insurer had no duty to defend or indemnify the insured, and that
recasting the principal's alleged actions as constituting
negligence could not provide coverage because "[i]t is not
possible for intentional sexual misconduct also to be
negligent." Id. at 370, citing Fells Acres, 408 Mass. at 410.
National urges upon us a broad interpretation of Fells
Acres and Doe under which all forms of "intentional sexual
misconduct" are excluded from coverage, and under which the
three claims on which Marculetiu now relies effectively are
subsumed within the excluded claims. We are unpersuaded by
National's arguments regarding the breadth of those cases.
Although the court held that the alleged injuries in each case
could not have been "accidental," critical to the court's
reasoning was the fact that each case involved the intentional
sexual abuse of children. We do not interpret those cases, as
National would have it, as establishing a sweeping rule that an
insured who engaged in some form of volitional "sexual 23
misconduct" with another adult necessarily must have intended to
injure that person.12
In sum, we are unpersuaded by National's argument that the
nature of L.C.'s breach of fiduciary duty claim precluded
coverage as a matter of law. For the same reason, National
cannot show that the harm from such a claim necessarily was
excluded as "expected or intended" by Marculetiu.
National next argues that the first judge erred in
concluding that the CGL policy was ambiguous about whether the
exclusion entitled "SEXUAL ABUSE EXCLUSION -- ILLINOIS" applied
outside of Illinois. According to National, the inclusion of
the reference to Illinois "merely reflects that the Illinois
version of the endorsement was included in the Policy."13
Assuming the provision can be read to that effect, this is not
12Injuries that L.C. suffered from Marculetiu's alleged sexual advances would not be deemed "expected or intended" by him even if he had acted with reckless disregard. See Fells Acres, 408 Mass. at 411 ("Generally, injuries resulting from reckless conduct do not fall into the category of 'expected or intended' injuries, but are considered 'accidental' and thus are covered under insurance policies").
13National suggests that the reference to Illinois is an artifact of how IBAN obtained its coverage. Specifically, National points out that IBAN obtained coverage through a master policy purchased by an association of sports organizations to which IBAN belonged, and that this association is based in Illinois. This history may well explain why the word Illinois came to appear in the heading, but it says next to nothing about whether the resulting language is ambiguous. 24
the only reasonable reading of it.14 We agree with the first
judge that the provision is ambiguous about whether the
exclusion applies outside of Illinois, and that -- in accordance
with black letter insurance law -- the ambiguity must be read in
favor of the insured. Dorchester Mut. Ins. Co., 485 Mass. at
437, citing Allmerica Fin. Corp. v. Certain Underwriters at
Lloyd's, London, 449 Mass. 621, 628 (2007). Cf. Assicurazioni
Generali, S.P.A. v. Clover, 195 F.3d 161, 165 (3d Cir. 1999) (in
choice of law case involving Pennsylvania vehicle accident,
court held "the parties at least implicitly and perhaps even
explicitly" selected Indiana law to govern where policy's
endorsement was titled "Indiana Changes").
We turn next to whether Marculetiu could claim coverage
under the CGL policy as an "insured," an issue that applies to
all of L.C.'s claims. Despite the threshold nature of this
14To be sure, as National points out, the language of the body of the exclusion does not state that it is limited to Illinois, but instead refers to "any" claim based on sexual misconduct being excluded. However, the use of the word "any" is not textually incompatible with Marculetiu's narrower reading: the exclusion readily can be read as precluding coverage for "any" sexual misconduct claim arising in Illinois. Cf. Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 806 (2016) (in case where defendant argued for expansive reading of phrase "any other services provided," to encompass services provided before provision went into effect, "[t]he fact that [the defendant's] preferred reading [wa]s linguistically possible d[id] not make it a reasonable interpretation of the parties' agreement"). 25
issue, National focused on other issues, and the first judge did
not address it.15
As noted, it was IBAN, not Marculetiu, that purchased the
CGL policy, and under the policy's terms, Marculetiu was
entitled to coverage as an insured only to a limited extent. As
an employee of IBAN, his coverage extends only to those actions
that are "within the scope of [his] employment by [IBAN] or
[taken] while performing duties related to the conduct of
[IBAN's] business." The question is whether his alleged conduct
during the trip to Romania could be said to fall within that
category.16
National initially did not press the issue whether 15
Marculetiu was an insured party. We requested supplemental briefing from the parties on whether Marculetiu was an insured party under National's CGL policy, as well as on the separate issue whether the business pursuits exclusion in Safety's homeowner policy applied. Citing to cases in which an appellant's failure to brief an issue was deemed a waiver, Marculetiu argues that National has waived the issue. However, we can affirm a judgment on any grounds fairly raised by the record, and an appellee has no duty even to file an appellate brief. Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019). Where the insurance coverage disputes before us can be resolved as a matter of law, and where both sides now have briefed the two issues, we exercise our discretion to reach them.
16IBAN's "volunteer workers" are also insured parties under the CGL policy to the extent they are "performing duties related to the conduct of [IBAN's] business." Marculetiu asserts that while he was in Romania, he effectively served as "IBAN's volunteer, 'goodwill ambassador.'" Since both paid employees and volunteer workers are insured parties with respect to their "performing duties related to the conduct of [IBAN's] business," 26
We faced an analogous situation in Timpson, 41 Mass. App.
Ct. at 344-345. The question raised there was whether the
insurer of the New England Patriots football team owed a member
of the team a duty to defend him against allegations that he
sexually harassed a female reporter in the locker room. Under
the applicable policy there, the player was an "additional
insured" only with respect to actions "within the scope of his
duties." Id. at 348. In examining whether the alleged
harassment fell within that scope, we applied a three-part test
drawn from Wang Labs., Inc. v. Business Incentives, Inc., 398
Mass. 854 (1986) (Wang).17 "Under Wang, the factors that
determine whether an employee's tortious conduct was within the
scope of his employment include whether (1) the conduct is of
we will not address separately the distinction between regular employees and volunteers.
17Wang was not a case involving insurance coverage, but instead dealt with whether a corporation could be vicariously liable under G. L. c. 93A for the actions of its employee. See Wang, 398 Mass. at 859. See also Petrell v. Shaw, 453 Mass. 377, 383-384 (2009) (diocese could not be vicariously liable for sexual misconduct by priest because alleged conduct not within scope of his employment). As discussed further below, insurance coverage issues are controlled by the language of the applicable insurance contract, which may not necessarily be consistent with principles of vicarious liability. Metropolitan Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass. App. Ct. 818, 820 (2003). However, where the acts in question plainly do not fall within the scope of employment -- as that concept has developed in the context of vicarious liability questions -- the employee will need to identify additional policy language that affords him coverage as an insured party. 27
the kind he is employed to perform; (2) it occurs substantially
within authorized time and space limits; and (3) it is
motivated, at least in part, by a purpose to serve the
employer." Timpson, supra, citing Wang, supra at 859. We
further stated that where "an employee 'acts from purely
personal motives . . . in no way connected with the employer's
interests,' he is not acting within the scope of his
employment." Timpson, supra, quoting Pinshaw v. Metropolitan
Dist. Comm'n, 402 Mass. 687, 694-695 (1988). Applying these
factors, we held that even though the alleged harassment of the
reporter took place at the player's place of employment during
work hours, and even though the player's contract required him
to "cooperate with the media," the player's alleged actions
could not fairly be characterized as falling within the scope of
his duties. Id. at 349-350. We emphasized that the specific
actions that the player allegedly took were not of the sort he
was required to perform, nor did they constitute "the kind of
conduct that he ever would be legally employed to perform." Id.
at 349. In addition, we concluded that "it is difficult to
envisage how [his] alleged conduct . . . could ever be perceived
as serving his employer." Id. Cf. O'Connell v. Chasdi, 400
Mass. 686, 690 (1987) (claims for assault and battery and
intentional infliction of emotion distress based on sexual
harassment not barred by exclusivity provision of worker's 28
compensation act, because intentional torts at issue were "in no
way within the scope of employment furthering the interests of
the employer").
The considerations we recognized in Timpson apply even more
forcefully here. Putting aside the extent to which IBAN itself
had any involvement in the trip to Romania, the actions that
L.C. alleges Marculetiu took there cannot fairly be
characterized as serving any of IBAN's interests. Rather, those
alleged actions self-evidently served only Marculetiu's
interests. Accordingly, these actions cannot reasonably be said
to fall within Marculetiu's scope of employment, and he
therefore cannot claim status as an insured party on that basis.
However, Marculetiu argues that the CGL policy includes language
that creates a broader universe of covered employees than the
policy at issue in Timpson. Specifically, Marculetiu points to
the fact that under the policy here, an IBAN employee can be an
insured party not only with respect to actions taken within the
scope of his employment, but also for actions taken "while
performing duties related to the conduct of [IBAN's] business."
Even if such language arguably applies to some employee conduct
that lies beyond the scope of that employee's employment, we are
unpersuaded that it was intended to include the alleged behavior
at issue here. Simply put, Marculetiu's engaging in any of the
alleged misconduct at issue here cannot reasonably be said to 29
have been done while "performing duties related to" IBAN's
business. Therefore, we conclude that National had no duty to
defend Marculetiu in his capacity as IBAN's employee (or
"volunteer worker").18
To the extent that Marculetiu claims that National had a
separate duty to defend him in his role as an officer or
director of IBAN, we similarly are unpersuaded. Under the
express terms of the CGL policy, as an officer and director, he
is entitled to a defense only with respect to his duties as an
officer and director. IBAN's alleged negligent hiring and
supervision of Marculetiu is the only theoretical respect with
which his serving as an officer or director is implicated by
L.C.'s allegations. An employee who commits an intentional tort
cannot be liable for negligently hiring or failing to supervise
himself. See, e.g., DiSalvio v. Lower Merion High Sch. Dist.,
158 F. Supp. 2d 553, 560-561 (E.D. Pa. 2001) ("employee
wrongdoer . . . cannot be liable for negligent hiring, retention
or supervision of himself").19
18Our holding is not inconsistent with Cleary, 81 Mass. App. Ct. at 48 (rejecting insurer's claim it had no duty to defend sexual harassment claim). The issue in Cleary was whether the company's insurer had a duty to defend it and its president, not the person accused of the sexual harassment. Id. at 41.
19Our conclusion that National had no duty to defend Marculetiu in the underlying litigation should not be taken as bearing on whether National had a duty to defend IBAN in that 30
3. Homeowner's policy. We disagree with the second
judge's reasoning with regard to why Safety had no duty to
defend Marculetiu under his homeowner's policy. For the reasons
discussed above, L.C.'s claim for breach of fiduciary duty is
not excluded from coverage simply because it is based on
volitional conduct. In addition, as noted, the judge ruled
Safety had no duty to defend L.C.'s false imprisonment claim
primarily because of the judge's premise that the false
imprisonment claim was based solely on Marculetiu's allegedly
holding down L.C. during the sexual assaults.20 That premise
does not square with L.C.'s complaint, which sketches a more
action or on IBAN's potential liability to L.C. In addition, we note that employers face potential liability for sexual harassment by their employees even where the actions at issue may be outside the scope of their employment. See, e.g., College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 167 (1987) (employer liable for supervisor's sexual harassment of supervisee employee).
20The judge also found the false imprisonment claim as necessarily falling outside the scope of coverage on the ground that it was barred by the exclusion for "violation[s] of . . . penal law." He did not explain what criminal laws would have been broken. We note that Marculetiu has not faced any criminal charges related to L.C.'s allegations. See Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass. 352, 353 (2011) ("a guilty plea does not negate an insurer's duty to defend, even where the duty to defend would be negated by a criminal conviction after trial, because a guilty plea is not given preclusive effect and is simply evidence that the insured's acts were intentional and criminal"). 31
broadly based claim.21 Nevertheless, for the reasons that
follow, we again hold that the insurer is entitled to a judgment
in its favor based on a ground the judge did not reach.
As noted, the coverage that Marculetiu seeks is subject to
a business pursuits exclusion under which Safety bears no
liability for "[i]njury arising out of or in connection with a
'business' engaged in by the 'insured.'" As we observed in a
case construing the scope of the business practices exclusion,
"[t]he terms 'arising out of' and 'in connection with' are not
to be construed narrowly but are read expansively in insurance
contracts." Metropolitan Prop. & Cas. Ins. Co. v. Fitchburg
Mut. Ins. Co., 58 Mass. App. Ct. 818, 820-821 (2003). Accord
Nguyen v. Arbella Ins. Group, 91 Mass. App. Ct. 565, 568-569
(2017). Moreover, it bears remembering that "the manifest
design of homeowners' insurance is to protect homeowners from
risks associated with the home and activities related to the
home." Metropolitan Prop. & Cas. Ins. Co., supra at 823,
quoting Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245
(1986).
21At oral argument, Safety's counsel notably did not seek to defend the second judge's premise that the factual allegations underlying L.C.'s false imprisonment claim were confined to the rapes themselves. Instead, she argued that the actions that Marculetiu allegedly took to confine L.C. constituted one of the means through which he allegedly induced her to submit to his sexual advances. 32
It is uncontested that any injuries suffered by L.C. from
Marculetiu's alleged acts occurred out of the country on a work-
related trip. Under these circumstances, we agree with Safety
that regardless of whether Marculetiu's alleged actions were
motivated by personal or business reasons, any resulting
injuries arose out of or in connection with Marculetiu's
business pursuits, and thus are excluded. See Metropolitan
Prop. & Cas. Ins. Co., 58 Mass. App. Ct. at 820. See also Fells
Acres, 408 Mass. at 412. Contrast Dorchester Mut. Ins. Co., 485
Mass. at 446 (objectively reasonable insured would not interpret
exclusion in homeowner's policy for "physical abuse" as
precluding coverage for pushing third party he had just met).
With regard to any sexual harassment claims, our conclusion is
reinforced by the fact that any liability that Marculetiu faces
depends on his having been L.C.'s employer or teacher. Lowery
v. Klemm, 446 Mass. 572, 580 & n.10 (2006). See Zimmerman v.
Safeco Ins. Co. of Am., 605 N.W.2d 727, 731 (Minn. 2000)
("sexual harassment of an employee falls within the general
business pursuits exclusion of the [homeowner's] policy because
by definition it occurs in the workplace"). See also Greenman
v. Michigan Mut. Ins. Co., 173 Mich. App. 88, 94 (1988) (sexual
harassment claim falls within business pursuits exclusion where 33
it "could not, by definition, exist outside of the employer-
employee relationship").22
Conclusion. Because we conclude that neither insurer had a
duty to defend Marculetiu with respect to the underlying action,
we affirm the judgment.23 We similarly affirm the orders denying
Marculetiu's motions for reconsideration.
22Our holding is consistent with Preferred Mut. Ins. Co. v. Vermont Mut. Ins. Co., 87 Mass. App. Ct. 510 (2015) (Preferred). There, a party was injured after the homeowners' son had failed to secure the railing on the home's second floor deck. The son both lived at the home (which made him an additional insured under his parents' homeowner's policy) and had his own commercial insurance for his contracting business. Id. at 511. We ruled that the homeowners' insurer had failed to prove that the business pursuit exclusion negated the insurer's duty to defend the son. In reaching this conclusion, we concluded that "determining when an activity arises out of or in connection with the insured's business" should be done in accordance with "a two-prong functional test." Id. at 514. "The first element of the test is 'continuity' -- that is, the activity in question must be one in which the insured regularly engages as a means of livelihood; the second element is 'profit motive' -- that is, the purpose of the activity must be to obtain monetary gain." Id. However, in applying that two-pronged test to the case before us, the question is not whether the alleged acts of sexual misconduct met that test, but whether such acts arose out of business activities that met the test. See Nguyen, 91 Mass. App. Ct. at 569-570 (distinguishing Preferred). Because Marculetiu's alleged actions occurred in the context of a work- related relationship on a work-related trip far from home, this is not a close question. Contrast Wilkinson v. Citation Ins. Co., 447 Mass. 663, 668-669 (2006) (insurance coverage did lie under homeowner's policy with respect to damage to property related to insured's hobby caused by fire at insured's home).
23The judgment did not declare the rights of the parties, as Marculetiu's complaint had requested, but instead simply dismissed his complaint. Marculetiu has not challenged the form of the judgment as constituting separate error, and we therefore 34
So ordered.
need not address the issue. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 18-20 (2018).