United National Insurance v. Parish

717 N.E.2d 1016, 48 Mass. App. Ct. 67, 1999 Mass. App. LEXIS 1102
CourtMassachusetts Appeals Court
DecidedOctober 8, 1999
DocketNo. 97-P-1732
StatusPublished
Cited by17 cases

This text of 717 N.E.2d 1016 (United National Insurance v. Parish) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United National Insurance v. Parish, 717 N.E.2d 1016, 48 Mass. App. Ct. 67, 1999 Mass. App. LEXIS 1102 (Mass. Ct. App. 1999).

Opinion

Dreben, J.

This is an appeal by James Sarantikis from a judgment entered in the Superior Court declaring that United National Insurance Company (United) has no obligation under its policy insuring David Parish on account of a $130,000 judgment recovered by Sarantikis against Parish. Sarantikis had sued Parish for negligence after Sarantikis had been assaulted while leaving Parish’s property. Parish had defaulted, and, after a jury trial on the issue of damages, judgment had entered for Sarantikis. The latter sought to reach and apply Parish’s interest in a policy issued by United, and United responded by filing this action under G. L. c. 231A, seeking a declaratory judgment [68]*68that it has no liability. On cross motions for summary judgment, a judgment entered in favor of United. Parish was defaulted in this action as well as in the underlying suit.

United’s insurance policy issued to Parish provided coverage for bodily injury or property damage “caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto.” The policy defines “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The policy also provides that United must defend any suit arising out of an occurrence.

The basis of United’s claim that it had no duty to defend or indemnify Parish is that the “Multipurpose Exclusion Endorsement” of the policy precludes coverage.3 That clause in relevant part provides:

“In consideration of the premium charged, it is understood and agreed that no coverage is provided under the policy to which this endorsement is attached, for either defense or indemnification, for any claim asserting a cause of action within any of the Exclusions listed below . . . .”
“5. Assault and Battery Exclusion
“Claims arising out of an assault and/or battery, whether caused by or at the instigation of, or at the direction of, or omission by, the Insured, and/or his employees.”

Sarantikis cites to his complaint and argues that his action was based on negligence, that the exclusion in the policy does not apply to claims of negligence, and that the motion judge erred in not allowing his motion for summary judgment.

An insurer has a duty to defend an action against the insured “if any allegations in the [underlying] complaint were reasonably susceptible of an interpretation that they stated or adumbrated a claim covered by the . . . policy.” Liquor Liab. Joint Underwriting Assn. of Mass. v. Hermitage Ins. Co., 419 [69]*69Mass. 316, 319-320 (1995). Terrio v. McDonough, 16 Mass. App. Ct. 163 (1983). Sterilite Corp. v. Continental Cas. Co., 17 Mass. App. Ct. 316, 318 (1983). New Eng. Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 723 (1996). In determining United’s duty to defend, a court must look “only to the complaint and the policy.” Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 369 (1996).

We therefore turn to Sarantikis’s complaint. The first six introductory paragraphs state that the plaintiff was lawfully on property in Lynn owned by Hanover Street Realty Trust, see note 1, supra, that the property is located in a dangerous high crime area, that, at the time of the incident, the premises were poorly illuminated, that there were no security measures in evidence for the protection of persons lawfully on the premises, and that, at the time of the incident, the stairs were poorly maintained and in disrepair. Paragraph 7 states, “At approximately 8:00 p.m., as James Sarantikis was exiting the above-named premise, he was assaulted by two men, one of whom was identified as Leo Lomax a\k\a Leo Womax.” Paragraph 8 alleges that Leo Lomax committed the assault, and paragraph 9 states, “As a result of this assault, and condition of the premises James Sarantikis suffered head injuries, scalp lacerations, and a broken neck.” Paragraph 10 lists the two medical locations where the plaintiff was treated.

The complaint then sets forth three counts. Each begins: “Based on the above facts,” the plaintiff brings his claim against the defendants “for their negligence.”4 The first count is for “negligence in maintenance and or control of the premises . . . . Said inadequate lighting is directly related and the proximate cause of the injuries suffered” by the plaintiff.5 The second count alleges “negligence in maintaining inadequate security,” and the third count alleges “negligence in failing to warn persons lawfully on the premises ... of the dangerous condition of the surrounding locale.” Counts two and three, as did count one, claim that the particular negligence alleged in each count “is directly related and the proximate cause of the injuries” of the plaintiff.

[70]*70In examining the exclusionary clause, “we are required to ‘construe the words of the policy in their usual and ordinary sense,’ Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978).” Liquor Liab. Joint Underwriting Assn. of Mass. v. Hermitage Ins. Co., 419 Mass. at 320. As pointed out in New Eng. Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. at 726, “The usual meaning ascribed to the phrase ‘arising out of’ is much broader than ‘caused by’; the former phrase is considered synonymous with ‘originate’ or ‘come into being.’ Webster’s Third New Intl. Dictionary 117 (1981).” See Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996) (“ ‘arising out of’ indicates a wider range of causation than the concept of proximate causation in tort law”). In New Eng. Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., supra, the exclusion was as follows: “[C]overage does not apply to personal injury arising out of. . . discrimination which is unlawful or which is committed by or at the direction of the insured.” 40 Mass. App. Ct. at 723 (emphasis supplied). In response to the insured’s argument that its claims for misrepresentation, negligence, and loss of consortium were not precluded by the policy’s exclusion, we held that the insurer had no duty to defend, saying:

“Without the underlying discriminatory acts against [the plaintiff in the underlying action], there would have been no personal injuries and, therefore, no basis for a suit against the insureds for misrepresentation, negligence, and loss of consortium. ... It is 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.”

Id. at 727 (emphasis supplied).

Similarly, in this case, without the underlying assault and battery, there would have been no personal injuries and, therefore, no basis for a suit against the insured for negligence. All of the claims derive from the assault and battery that is the source of the plaintiff’s personal injury.

Not only do the cases construe “arising out of” expansively, but support for a broad construction of the specific assault and/or battery exclusion of the policy at hand is found in Liquor Liab. Joint Underwriting Assn. of Mass. v. Hermitage Ins.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cohne v. Navigators Specialty Ins. Co.
361 F. Supp. 3d 132 (District of Columbia, 2019)
Certain Interested Underwriters at Lloyds v. LeMons
10 N.E.3d 654 (Massachusetts Appeals Court, 2014)
Waters v. Western World Insurance
29 Mass. L. Rptr. 49 (Massachusetts Superior Court, 2011)
FINANCIAL RESOURCES NETWORK, INC. v. Brown & Brown, Inc.
754 F. Supp. 2d 128 (D. Massachusetts, 2010)
Sarsfield v. Great American Insurance
833 F. Supp. 2d 125 (D. Massachusetts, 2008)
Fuller v. First Financial Insurance
448 Mass. 1 (Massachusetts Supreme Judicial Court, 2006)
Commerce Insurance v. Theodore
841 N.E.2d 281 (Massachusetts Appeals Court, 2006)
United States Fire Insurance v. Peerless Insurance
18 Mass. L. Rptr. 64 (Massachusetts Superior Court, 2004)
American Commerce Insurance v. Porto
811 A.2d 1185 (Supreme Court of Rhode Island, 2002)
Peters v. United National Insurance
762 N.E.2d 881 (Massachusetts Appeals Court, 2002)
Callahan v. Quincy Mutual Fire Insurance
736 N.E.2d 857 (Massachusetts Appeals Court, 2000)
First Financial Insurance v. LaRosa
726 N.E.2d 978 (Massachusetts Appeals Court, 2000)
Bagley v. Monticello Insurance
430 Mass. 454 (Massachusetts Supreme Judicial Court, 1999)
Nationwide Mutual Insurance v. Bent
10 Mass. L. Rptr. 727 (Massachusetts Superior Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
717 N.E.2d 1016, 48 Mass. App. Ct. 67, 1999 Mass. App. LEXIS 1102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-national-insurance-v-parish-massappct-1999.