MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	   	 2018	ME	125	
Docket:	     	 Yor-17-416	
Argued:	     	 April	11,	2018	
Decided:	    	 August	21,	2018	
	
Panel:	      	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   	 SAUFLEY,	C.J.,	and	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:		 MEAD,	ALEXANDER,	and	JABAR,	JJ.	
	
	
                    VERMONT	MUTUAL	INSURANCE	COMPANY	
                                     	
                                    v.	
                                     	
                          JONATHAN	BEN-AMI	et	al.	
	
	
HJELM,	J.		

	      [¶1]		In	October	of	2011,	Joshua	Francoeur	attacked	a	fellow	high-school	

student,	 Jonathan	 Ben-Ami,	 by	 punching	 him	 a	 number	 of	 times	 in	 the	 face,	

causing	Ben-Ami	serious	injuries,	including	a	broken	jaw.		This	appeal	concerns	

the	 availability	 of	 homeowner’s	 liability	 insurance	 coverage	 for	 damages	

resulting	 from	 those	 injuries.	 	 The	 insurer,	 Vermont	 Mutual	 Insurance	

Company,	appeals	from	a	declaratory	judgment	entered	by	the	Superior	Court	

(York	County,	O’Neil,	J.),	determining,	in	relevant	part,	that	Francoeur’s	tortious	

conduct	did	not	fall	within	a	policy	exclusion	from	coverage	for	bodily	injury	

that	is	“expected	or	intended”	and	that	Ben-Ami	is	entitled	to	indemnification	
2	

pursuant	to	the	policy.1		Given	the	nature	and	circumstances	of	the	assault	as	

found	 by	 the	 court,	 the	 evidence	 compelled	 the	 court	 to	 find	 that	 Francoeur	

“expected”	that	he	would	cause	bodily	injury	to	Ben-Ami,	thereby	triggering	the	

exclusion	 and	 relieving	 Vermont	 Mutual	 from	 any	 obligation	 to	 pay	 for	

Ben-Ami’s	damages.		We	therefore	vacate	the	judgment	and	remand	for	entry	

of	judgment	for	Vermont	Mutual.		

                                         I.		BACKGROUND	

         [¶2]		The	court	found	the	following	facts,	which—except	where	indicated	

otherwise—are	supported	by	the	record.		See	State	Farm	Mut.	Auto.	Ins.	Co.	v.	

Estate	 of	 Carey,	 2012	 ME	 121,	 ¶	 2,	 68	 A.3d	 1242.	 	 Because	 Vermont	 Mutual	

moved	for	the	court	to	issue	further	findings	pursuant	to	M.R.	Civ.	P.	52(b),	we	

consider	only	the	findings	and	conclusions	explicitly	rendered	by	the	court	and	

do	not	attribute	any	inferred	findings	to	the	court.		See	Ehret	v.	Ehret,	2016	ME	

43,	¶	12,	135	A.3d	101.			

         [¶3]		Francoeur,	the	son	of	the	named	insured	under	the	Vermont	Mutual	

policy,	and	Ben-Ami	attended	the	same	high-school	at	the	time	of	the	incident	




     1		The	court	also	determined	that	several	other	requirements	for	coverage	were	present,	including	

that	Francoeur	was	a	“resident”	at	the	home	of	his	father,	who	is	the	named	insured,	and	that	the	
assault	was	an	“accident”	and	therefore	an	“occurrence”	that	is	covered	under	the	insurance	policy.		
Because	we	hold	that	the	intentional	or	expected	injury	exclusion	by	itself	bars	coverage,	we	do	not	
reach	Vermont	Mutual’s	alternative	contention	that	the	court	erred	in	those	determinations.			
                                                                                         3	

giving	 rise	 to	 this	 action.	 	 While	 attending	 a	 football	 game,	 days	 before	 the	

physical	 attack,	Francoeur	 and	Ben-Ami	became	 engaged	in	a	verbal	dispute.		

As	 a	 result	 of	 that	 encounter,	 Francoeur,	 encouraged	 by	 friends,	 planned	 an	

attack	 on	 Ben-Ami.	 	 On	 October	 24,	 2011,	 Francoeur	 left	 a	 class	 he	 was	

attending	and	walked	to	Ben-Ami’s	classroom,	planning	to	hit	Ben-Ami.		When	

Francoeur	 arrived	 at	 Ben-Ami’s	 classroom,	 he	 had	 second	 thoughts	 about	

following	through	with	his	plan	but	was	encouraged	by	a	friend	to	proceed	with	

it.	 	 Francoeur	 found	 that	 the	 door	 to	 Ben-Ami’s	 classroom	 was	 locked,	 so	

Francoeur	had	to	get	the	attention	of	the	teacher,	who	unlocked	the	door	and	

let	Francoeur	inside.		At	that	time,	Ben-Ami	was	wearing	headphones	and	was	

“likely	unaware”	of	the	imminent	attack.		Francoeur	approached	Ben-Ami	from	

behind	and	struck	Ben-Ami	in	the	face	multiple	times	with	a	closed	fist.		As	a	

result,	Ben-Ami	suffered	serious	injuries,	including	a	broken	jaw.			

      [¶4]		Ben-Ami	subsequently	commenced	a	personal	injury	action	against	

Francoeur	 in	 the	 Superior	 Court	 (York	 County).	 	 Francoeur’s	 father	 owned	 a	

homeowner’s	liability	insurance	policy	for	the	period	that	included	the	date	of	

the	assault.		Pursuant	to	the	policy,	Vermont	Mutual	provided	Francoeur	with	a	

defense	in	the	direct	action.		In	January	of	2014,	however,	Vermont	Mutual	filed	

a	 complaint	 against	 Francoeur	 and	 Ben-Ami	 in	 the	 Superior	 Court,	 seeking	 a	
4	

declaratory	judgment	that	Francoeur	was	not	an	“insured”	within	the	meaning	

of	the	policy	and	that	Ben-Ami’s	damages	were	not	covered	by	the	policy.		Later	

that	 year,	 in	 October	 of	 2014,	 while	 the	 declaratory	 judgment	 action	 was	

pending,	 the	 court	 entered	 a	 consent	 judgment	 on	 Ben-Ami’s	 claim	 against	

Francoeur,	awarding	Ben-Ami	$150,000,	but	with	satisfaction	of	that	judgment	

contingent	 on	 the	 outcome	 of	 the	 declaratory	 judgment	 action	 brought	 by	

Vermont	 Mutual.	 	 The	 judgment	 was	 subject	 to	 the	 further	 stipulation	 that	

Ben-Ami	 would	 not	 execute	 the	 judgment	 against	 Francoeur	 personally	 but	

instead	would	file	an	action	to	reach	and	apply	the	liability	insurance	proceeds	

from	the	Vermont	Mutual	policy.			

       [¶5]	 	 Shortly	 after	 the	 court	 issued	 the	consent	 judgment	 in	 Ben-Ami’s	

personal	injury	case,	Ben-Ami	filed	a	reach	and	apply	action	against	Vermont	

Mutual	 in	 the	 Superior	 Court.	 	 See	 24-A	 M.R.S.	 §	 2904	 (2017).	 	 On	 Vermont	

Mutual’s	 motion,	 the	 court	 (Fritzsche,	 J.)	 consolidated	 into	 a	 single	 action	

Vermont	 Mutual’s	 complaint	 for	 declaratory	 judgment	 and	 Ben-Ami’s	 reach	

and	apply	action.			

       [¶6]	 	 After	 denying	 a	 motion	 for	 summary	 judgment	 filed	 by	 Vermont	

Mutual,	 in	 February	 of	 2017,	 the	 court	 (O’Neil,	 J.)	 held	 a	 bench	 trial	 on	 the	

declaratory	judgment	portion	of	the	consolidated	action.		Francoeur,	his	father,	
                                                                                             5	

and	two	employees	of	the	high-school	testified.		Several	months	later,	the	court	

issued	a	judgment	declaring	that	Ben-Ami’s	damages,	which	had	been	reduced	

to	the	consent	judgment,	were	covered	by	the	insurance	policy	and	setting	out	

the	factual	findings	described	above.		Regarding	the	applicability	of	the	policy	

exclusion,	the	court	found	that,	at	the	time	of	the	altercation,	Francoeur	had	the	

       subjective	intent	to	strike	Mr.	Ben-Ami	on	multiple	occasions	in	the	
       face.	 	 The	 [c]ourt	 however	 cannot	 conclude	 that	 he	 subjectively	
       intended	to	inflict	the	level	of	damage	that	ultimately	was	inflicted	
       upon	Mr.	Ben-Ami	in	the	form	of	his	broken	jaw.		Mr.	Francoeur’s	
       testimony	that	he	did	not	consider	the	consequences	of	his	action,	
       or	consider	the	likelihood	that	his	punching	of	Mr.	Ben-Ami	would	
       produce	such	a	serious	injury	is	credible.		
	
       [¶7]	 	 Vermont	 Mutual	 subsequently	 filed	 a	 motion	 to	 amend	 and	 for	

further	 factual	 findings.	 	 See	 M.R.	 Civ.	 P.	 52(b),	 59(e).	 	 The	 court	 declined	 to	

amend	the	judgment	except	to	correct	a	reference	to	a	date,	but	the	court	issued	

several	additional	factual	findings,	including	the	following:		

       Francoeur	intended	to	strike	Mr.	Ben-Ami	multiple	times	in	the	face	
       with	 a	 closed	 fist.	 	 The	 court	 however	 also	 concludes	 that	
       Mr.	Francoeur	 was	 not	 actively	 or	 consciously	 considering	 the	
       extent	 of	 damage	 he	 could	 and	 ultimately	 did	 cause.	 	 The	 court	
       concludes	 that	 at	 the	 actual	 time	 of	 the	 assault	 his	 thinking	 was	
       likely	reflective	of	the	words	of	[his	friend]	about	how	the	assault	
       would	gain	him	social	respect	and	was	not	considering	the	extent	
       of	actual	damage	his	actions	would	cause.	
	
       .	.	.	.	
       	
6	

         [Francoeur]	 intended	 to	 punch	 Mr.	 Ben-Ami.	 	 What	 the	 court	
         cannot	conclude	is	that	at	the	time	of	the	assault,	he	subjectively	
         considered	or	intended	the	extent	of	the	damage	he	could	and	did	
         cause.		
         	
         [¶8]		In	September	of	2017,	Ben-Ami	and	Vermont	Mutual	entered	into	

an	agreement	whereby	Vermont	Mutual	would	satisfy	the	$150,000	judgment	

entered	for	Ben-Ami,	subject	to	Vermont	Mutual’s	right	to	appeal.		The	court	

accepted	the	agreement	and	entered	it	as	a	final	judgment.2		Vermont	Mutual	

then	 filed	 a	 timely	 appeal	 to	 us.	 	 See	 14	 M.R.S.	 §§	1851,	 5959	 (2017);	 M.R.	

App.	P.	2B(c)(1).			

                                         II.		DISCUSSION	

         [¶9]		The	dispositive	issue	on	appeal	is	whether	the	damages	sustained	

by	Ben-Ami	resulted	from	“bodily	injury	.	.	.	[w]hich	is	expected	or	intended	by”	

Francoeur	and	therefore	fall	within	the	exclusion	from	coverage	provided	by	

the	homeowner’s	insurance	policy	that	Francoeur’s	father	had	purchased	from	

Vermont	Mutual.		(Quotation	marks	omitted.)			

         [¶10]	 	 “The	 interpretation	 of	 an	 insurance	 contract	 exclusion	 and	 its	

applicability	 is	 a	 matter	 of	 law	 reviewed	 de	 novo.”	 	 Pease	 v.	 State	 Farm	 Mut.	

Auto.	Ins.	Co.,	2007	ME	134,	¶	7,	931	A.2d	1072.		“[T]he	rule	requiring	a	strict	


     2		Because	the	reach-and-apply	component	of	the	consolidated	action	remained	pending	after	the	

court	issued	the	declaratory	judgment	in	April	of	2017,	there	was	no	final	judgment	until	the	court	
issued	the	stipulated	judgment	in	September	of	2017.			
                                                                                        7	

construction	 against	 the	 insurer	 and	 a	 liberal	 construction	 in	 favor	 of	 the	

insured	 is	 not	 applicable	 unless	 there	 is	 ambiguity	 in	 terms	 of	 the	 policy.”		

Foremost	Ins.	Co.	v.	Levesque,	2005	ME	34,	¶	24,	868	A.2d	244	(quotation	marks	

omitted).	

      [¶11]		A	trial	court’s	factual	findings	are	reviewed	for	clear	error.		Patrons	

Oxford	Ins.	Co.	v.	Harris,	2006	ME	72,	¶	7,	905	A.2d	819.		Vermont	Mutual	bore	

the	 burden	 before	 the	 trial	 court	 to	 prove	 the	 applicability	 of	 the	 exclusion	

necessary	to	defeat	coverage.		See	Mut.	Fire	Ins.	Co.	v.	Hancock,	634	A.2d	1312,	

1313	(Me.	1993).		Therefore,	because	the	trial	court	determined	that	Vermont	

Mutual	failed	to	meet	its	burden	of	proof,	Vermont	Mutual	must	establish	on	

appeal	that	the	evidence	compelled	the	court	to	make	contrary	factual	findings	

necessary	for	a	judgment	in	its	favor.		See	St.	Louis	v.	Wilkinson	Law	Offices,	P.C.,	

2012	ME	116,	¶	16,	55	A.3d	443.		And	as	noted	above,	see	supra	¶	2,	because	

Vermont	 Mutual	 moved	 for	 the	 court	 to	 issue	 further	 findings,	 our	 review	 is	

confined	to	the	court’s	explicit	findings.		See	M.R.	Civ.	P.	52(b);	Ehret,	2016	ME	

43,	¶	12,	135	A.3d	101.			

      [¶12]		Here,	the	general	grant	of	personal	liability	coverage	created	by	

the	 policy	 encompasses	 damages	 for	 “bodily	 injury”	 caused	 by	 an	 applicable	
8	

“occurrence”	for	which	the	insured	is	liable.3		(Quotation	marks	omitted.)		An	

“[o]ccurrence	means	an	accident	.	.	.	which	results,	during	the	policy	period,	in	

.	.	 .	 [b]odily	 injury.”	 	 (Quotation	 marks	 omitted.)	 	 Although	 “accident”	 is	 not	

defined	in	the	policy,	coverage	for	personal	liability	is	nevertheless	subject	to	

the	related	exclusion	for	“bodily	injury	.	.	.	[w]hich	is	expected	or	intended	by	

the	insured.”		(Quotation	marks	omitted.)		

	        [¶13]	 	 We	 have	 previously	 considered	 a	 materially	 identical	 policy	

exclusion	for	conduct	that	resulted	in	“bodily	injury	.	.	.	which	is	either	expected	

or	intended	from	the	standpoint	of	the	[i]nsured.”		Patrons-Oxford	Mut.	Ins.	Co.	

v.	 Dodge,	 426	 A.2d	 888,	 889	 (Me.	 1981)	 (quotation	 marks	 omitted).	 	 We	

concluded	that	this	policy	language	is	ambiguous	because	it	could	reasonably	

be	 interpreted	 in	 different	 ways,	 including	 by	 leaving	 open	 the	 question	 of	

whether	the	infliction	of	bodily	injury	must	be	“expected	or	intended”	based	on	

an	 objective	 assessment	 or	 based	 on	 the	 tortfeasor’s	 own	 subjective	

perceptions.	 	 Id.	 at	 891.	 	 Accordingly,	 applying	 the	 established	 principle	 that	

ambiguities	 in	 an	 insurance	 policy	 are	 to	 be	 construed	 strictly	 against	 the	



     3		The	policy	defines	an	“insured”	as	the	policyholder—here,	Francoeur’s	father—and	“residents	

of	[the	policyholder’s]	household	who	are”	relatives	of	the	policyholder	or	under	twenty-one	years	
of	age	and	under	the	policyholder’s	care.		As	is	noted	above,	see	supra	n.1,	Vermont	Mutual	asserts	
that,	because	of	Francoeur’s	living	arrangement	and	the	nature	of	his	relationship	with	his	father,	
Francoeur	was	not	an	“insured”	under	the	policy.		We	do	not	reach	this	issue	because	we	vacate	the	
judgment	on	other	grounds.	
                                                                                       9	

insurer	 and	 favorably	 to	 the	 insured,	 we	 interpreted	 that	 exclusion	 to	 mean	

“bodily	injury	that	the	insured	in	fact	subjectively	wanted	(‘intended’)	to	be	a	

result	of	his	[or	her]	conduct	or	in	fact	subjectively	foresaw	as	practically	certain	

(‘expected’)	to	be	a	result	of	his	[or	her]	conduct.”		Id.	at	891-92.		We	construe	

and	apply	the	exclusion	language	in	Vermont	Mutual’s	policy	the	same	way.	

	     [¶14]	 	 It	 is	 undisputed,	 and	 the	 court	 explicitly	 found,	 that	 Francoeur	

subjectively	intended	to	hit	Ben-Ami	multiple	times	in	the	face	with	a	closed	

fist.		Although	Vermont	Mutual	seeks	to	frame	this	case	more	broadly,	see	infra	

¶	18,	the	dispositive	question	here	is	whether	the	evidence	compelled	the	court	

to	find	that	Francoeur	either	“intended	or	expected”	bodily	injury	to	Ben-Ami,	

which	would	trigger	the	exclusion.			

	     [¶15]	 	 The	 court	 made	 a	 number	 of	 supported	 findings	 regarding	 the	

background,	nature,	and	magnitude	of	the	attack:	Francoeur	and	Ben-Ami	had	

had	a	hostile	verbal	encounter	several	days	earlier;	Francoeur	then	developed	

a	plan	to	attack	Ben-Ami;	in	execution	of	that	plan,	Francoeur	left	his	classroom	

and	proceeded	to	another	classroom	where	Ben-Ami	was	present;	Francoeur	

induced	the	teacher	to	unlock	the	door	in	order	to	allow	him	into	the	classroom;	

Francoeur	 approached	 Ben-Ami	 from	 behind	 so	 that	 Ben-Ami,	 who	 had	

headphones	 on,	 was	 “likely	 unaware”	 of	 the	 imminent	 attack;	 Francoeur	
10	

punched	Ben-Ami	about	the	face	with	a	closed	fist	“multiple	times”;	and,	as	the	

direct	 result	 of	 the	 assault,	 Ben-Ami	 sustained	 serious	 injuries,	 including	 a	

broken	jaw.			

      [¶16]	 	 Against	 the	 backdrop	 of	 these	 findings,	 however,	 the	 court	 also	

found	that	Francoeur	did	not	consider	“the	consequences	of	his	action”	and	did	

not	“subjectively	consider[]	or	intend[]	the	extent	of	the	damage	he	could	and	

did	cause.”		These	specific	findings	were	central	to	the	court’s	conclusion	that	

the	damages	for	the	assault	fell	outside	of	the	coverage	exclusion	at	issue	here.			

      [¶17]		Despite	Francoeur’s	testimony,	the	court’s	findings	regarding	his	

“expectation”	of	Ben-Ami’s	injury	cannot	stand	alongside	the	court’s	account	of	

the	 attack	 itself.	 	 Given	 the	 premeditated	 nature	 of	 the	 assault,	 the	 ambush	

tactic	 that	 Francoeur	 used,	 and	 the	 location	 and	 magnitude	 of	 the	 resulting	

injuries,	 the	 evidence	 compelled	 the	 court	 to	 find,	 at	 the	 very	 least,	 that	

Francoeur	must	have	subjectively	foreseen	as	practically	certain	(i.e.,	expected)	

that	his	deliberately	violent	conduct	would	result	in	bodily	injury	to	Ben-Ami.		

See	Dodge,	426	A.2d	at	892.	

      [¶18]		We	need	not	go	as	far	as	Vermont	Mutual	urges,	which	would	be	

to	 hold	 categorically	 that	 an	 assault	 such	 as	 this	 falls	 within	 the	 exclusion	

irrespective	 of	 the	 assailant’s	 subjective	 intent	 or	 expectation	 of	 harm.		
                                                                                                            11	

Vermont	Mutual	asserts	that	this	type	of	incident	should	be	added	to	a	list	of	

narrowly	drawn	types	of	egregious	conduct	that	we	have	held	as	a	matter	of	

law	 invoke	 an	 exclusion	 to	 coverage	 because	 the	 conduct	 is	 inherently	

injurious.		See	Landry	v.	Leonard,	1998	ME	241,	¶¶	9-10,	720	A.2d	907	(armed	

robbery	with	the	use	of	a	dangerous	weapon);	Hancock,	634	A.2d	at	1312-13	

(“a	systematic,	hours-long	brutal	beating”	and	sexual	assault	of	the	tortfeasor’s	

domestic	 partner);	 State	 Mut.	 Ins.	 Co.	 v.	 Bragg,	 589	 A.2d	 35,	 38	 (Me.	 1991)	

(murder	and	attempted	murder);	Perreault	v.	Me.	Bonding	&	Cas.	Co.,	568	A.2d	

1100,	 1101-02	 (Me.	 1990)	 (sexual	 abuse	 of	 a	 child).	 	 The	 conduct	 here—a	

broken	 jaw—is	 qualitatively	 different	 from	 those	 types	 of	 conduct	 we	 have	

categorically	excluded	from	coverage.		If	Vermont	Mutual	wants	the	policy	to	

be	applied	in	that	way,	its	recourse	is	to	change	the	terms	of	coverage	in	the	

policies	it	sells.4		For	our	purposes,	because	of	the	broad	range	of	individualized	



    4		The	phraseology	in	the	exclusion	contained	in	Vermont	Mutual’s	policy	is	unlike	that	found	in	

other	 policies,	 such	 as	 the	 policy	 addressed	 in	 Metropolitan	 Property	 &	 Casualty	 Insurance	 Co.	 v.	
Googins,	No.	CV-13-102,	2014	Me.	Super.	LEXIS	228,	at	*6	(Oct.	31,	2014),	where	the	insurer	expressly	
excluded	“intentional	.	.	.	acts	even	if	such	bodily	injury	is	of	a	different	kind	or	degree	than	reasonably	
expected	or	intended	by	you.”		Id.	(alterations	omitted)	(quotation	marks	omitted).		Furthermore,	the	
exclusion	language	chosen	by	Vermont	Mutual	has	been	criticized	elsewhere.		See,	e.g.,	Providence	
Mut.	Fire	Ins.	Co.	v.	Scanlon,	638	A.2d	1246,	1248	(N.H.	1994)	(addressing	an	identical	expected	or	
intended	injury	insurance	exclusion,	the	court	stated	that	“we	believe	that	the	insurance	companies	
doing	business	in	this	State	are	best	served	by	being	able	to	rely	on	our	precedents,	and	to	use	them	
as	 guidance	 in	 drafting	 policy	 provisions.	 	 Thus,	 a	 carefully	 drawn	 exclusion	 could	 avoid	 the	
[subjective]	test	and	substitute	an	objective	standard”);	Espinet	v.	Horvath,	597	A.2d	307,	309	(Vt.	
1991)	(noting	that	“[h]ad	[the	insurer]	wished	to	exclude	[certain	conduct]	from	coverage	.	.	.	it	could	
have	included	an	appropriate	provision	in	the	contract”).			
12	

circumstances	that	can	characterize	different	assaults,5	and	given	the	nature	of	

Francoeur’s	particular	conduct	as	found	by	the	court,	it	is	sufficient	to	conclude	

based	on	the	facts	before	us	that	Francoeur’s	specific	conduct	establishes	that	

the	 damages	 he	 inflicted	 on	 Ben-Ami	 are	 excluded	 from	 coverage	 by	 the	

Vermont	Mutual	policy.	

        The	entry	is:	

                          Judgment	 vacated.	 	 Remanded	 for	 entry	 of	
                          judgment	for	Vermont	Mutual.				
                          	
                                 	      	     	    	       		

                                       	
MEAD,	J.,	with	whom	ALEXANDER	and	JABAR,	JJ.,	join,	concurring	
	
    [¶19]		I	agree	fully	with	the	analysis	and	conclusion	of	the	Court	that	the	

judgment	 of	 the	 Superior	 Court	 be	 vacated	 and	 the	 matter	 be	 remanded	 for	

entry	of	a	judgment	in	favor	of	Vermont	Mutual.		I	write	separately	because	the	

facts	 and	 circumstances	 of	 this	 case	 underscore	 the	 need	 for	 a	 clear	

pronouncement	of	law	regarding	the	insurability	of	intentional	assaults.	

        [¶20]		The	Court	succinctly	states	the	rationale	for	its	conclusion:	

        Given	 the	 premeditated	 nature	 of	 the	 assault,	 the	 ambush	 tactic	
        that	 Francoeur	 used,	 and	 the	 location	 and	 magnitude	 of	 the	
        resulting	injuries,	the	evidence	compelled	the	court	to	find,	at	the	
        very	 least,	 that	 Francoeur	 must	 have	 subjectively	 foreseen	 as	

   5	 	 For	 example,	 in	 the	 criminal	 context,	 the	 bodily	 injury	 in	 an	 “assault”	 need	 not	 be	 inflicted	

intentionally	or	knowingly	but	can	be	inflicted	recklessly.		See	17-A	M.R.S.	§	207(1)(A)	(2017).	
                                                                                     13	

      practically	certain	.	.	.	that	his	deliberately	violent	conduct	would	
      result	in	bodily	injury	to	Ben-Ami.	
      	
Court’s	Opinion	¶	17.	
      	
	     [¶21]		The	Court’s	reasoning	is	well	rooted	in	common	 sense.		 When	 a	

person	 approaches	 an	 unsuspecting	 victim	 with	 a	 premeditated	 plan	 to	

repeatedly	strike	that	person	in	the	face	with	a	closed	fist,	the	intentionality	of	

the	act	is	established	without	question.		The	trial	court	found	that	Francoeur	

admitted	as	much	in	this	case;	he	argued	only	that	he	did	not	intend	to	inflict	

the	degree	of	injury	that	Ben-Ami	suffered.	

	     [¶22]	 	 As	 authority	 for	 his	 argument	 that	 his	 injuries	 are	 covered	 by	

Francoeur’s	 Vermont	 Mutual	 policy,	 Ben-Ami	 points	 to	 our	 existing	

jurisprudence	 construing	 insurance	 coverage	 exclusions	 relating	 to	 injuries	

that	 are	 expected	 or	 intended.	 	 We	 have	 held	 that	 such	 injuries	 are	 “bodily	

injur[ies]	that	the	insured	in	fact	subjectively	wanted	(‘intended’)	to	be	a	result	

of	his	conduct	or	in	fact	subjectively	foresaw	as	practically	certain	(‘expected’)	

to	 be	 a	 result	 of	 his	 conduct.”	 	 Patrons-Oxford	 Mut.	 Ins.	 Co.	 v.	 Dodge,	

426	A.2d	888,	892	(Me.	1981)	(emphasis	omitted).	
14	

	       [¶23]	 	 The	 “expected	 or	 intended”	 exclusion	 is	 likewise	 founded	 in	

common	sense.		Unexpected	injuries	can	result	from	intentional	acts.6		In	the	

event	 of	 such	 unexpected	 injuries,	 insurance	 coverage	 may	 well	 be	 available	

(i.e.,	 an	 “expected	 or	 intended”	 exclusion	 would	 not	 apply)	 depending	 upon	

actual	policy	language.	

	       [¶24]		In	applying	an	“expected	or	intended”	exclusion	to	particular	facts,	

a	court	must	make	factual	findings	regarding	an	insured’s	subjective	intent	or	

expectation	 to	 cause	 injury	 in	 determining	 whether	 an	 insurance	 policy’s	

intentional	acts	exclusion	is	triggered.		In	this	case,	the	Superior	Court	found	

Francoeur’s	 statement—that	 he	 did	 not	 consider	 the	 consequences	 of	 his	

actions	 or	 the	 possible	 extent	 of	 injuries	 he	 might	 cause—to	 be	 credible.		

Nonetheless,	 we	 have	 concluded	 that	 the	 evidence	 compelled	 a	 contrary	

finding,	 namely	 that	 Francoeur	 must	 have	 subjectively	 foreseen	 that	 his	

conduct	would	result	in	bodily	injury	to	Ben-Ami.		Court’s	Opinion	¶	17.	

	       [¶25]		The	Court	cabins	its	result,	unnecessarily	in	my	view,	to	the	unique	

facts	of	this	case.		Court’s	Opinion	¶	18.		I	would	go	further	and	conclude	that	




    6		For	example,	analyzing	facts	very	similar	to	those	presented	here,	the	Arizona	Court	of	Appeals	

recognized	the	possibility	that	if	a	person	who	strikes	someone	in	the	face	“maintained	that	striking	
[the	victim]	was	an	accident,	and	that	the	blow	itself	was	unintentional,	summary	judgment	would	
be	improper	due	to	the	dispute	over	a	material	fact.”		Clark	v.	Allstate	Ins.	Co.,	529	P.2d	1195,	1196	
(Ariz.	Ct.	App.	1975).	
                                                                                                              15	

this	factual	scenario—the	intentional	striking	of	an	unsuspecting	person	in	the	

face	with	a	closed	fist—leads	to	a	conclusion	that	as	a	matter	of	law	the	physical	

injuries	 resulting	 from	 the	 attack	 were	 intended	 and	 expected.	 	 The	 act	 of	

punching	 someone	 in	 the	 face	 with	 a	 closed	 fist	 is	 simply	 and	 undeniably	

inherently	 injurious.	 	 Consequently,	 in	 my	 view,	 the	 “expected	 or	 intended”	

insurance	 policy	 exclusion	 was	 triggered	 as	 a	 matter	 of	 law	 in	 this	 case	 by	

Francoeur’s	 violent,	 inherently	 injurious	 assault	 on	 Ben-Ami,	 and	 provides	 a	

sufficient	 basis	 for	 the	 entry	 of	 a	 summary	 judgment	 in	 favor	 of	 Vermont	

Mutual.		This	approach	is	entirely	consistent	with	the	line	of	cases	in	which	we	

have	identified	other	specific	acts	as	being	inherently	injurious.7	

	        [¶26]		The	Massachusetts	Supreme	Judicial	Court,	in	holding	that	the	acts	

of	rape	and	sexual	assault	are	sufficiently	inherently	injurious	so	as	to	satisfy	

the	“expected	or	intended”	exclusion,	noted	the	comparison	to	the	inherently	

injurious	act	of	striking	another:	

         Sexual	assault	and	rape	are,	in	this	respect,	indistinguishable	from	
         any	 other	 deliberate	 assault	 and	 battery.	 	 The	 act	 of	 striking	
         another	in	the	face	is	one	which	we	recognize	as	an	act	so	certain	
         to	cause	a	particular	 kind	of	harm	that	 we	can	say	a	 person	who	


    7	 	 See	 Landry	 v.	 Leonard,	 1998	 ME	 241,	 ¶	 9,	 720	 A.2d	 907	 (armed	 robbery	 with	 the	 use	 of	 a	

dangerous	weapon);	Mut.	Fire	Ins.	Co.	v.	Hancock,	634	A.2d	1312,	1313	(Me.	1993)	(“a	systematic,	
hours-long	 brutal	 beating”);	 State	 Mut.	 Ins.	Co.	 v.	 Bragg,	 589	A.2d	 35,	 38	(Me.	 1991)	 (murder	 and	
attempted	murder);	Perreault	v.	Me.	Bonding	&	Cas.	Co.,	568	A.2d	1100,	1101-02	(Me.	1990)	(sexual	
abuse	of	a	child).	
16	

     performed	the	act	intended	the	resulting	harm,	and	his	statement	
     to	the	contrary	does	nothing	to	refute	that	rule	of	law.	
     	
Worcester	Ins.	Co.	v.	Fells	Acres	Day	Sch.,	Inc.,	558	N.E.2d	958,	964	(Mass.	1990)	

(alteration	omitted)	(citations	omitted)	(quotation	marks	omitted).	

	        [¶27]		The,	“I	hit	him	on	purpose,	but	didn’t	intend	to	hurt	him	that	badly”	

excuse	cannot,	as	a	matter	of	common	sense	or	public	policy,	be	invoked	to	shift	

the	actor’s	personal	responsibility	onto	an	insurer	who	issues	a	general	policy	

indemnifying	 a	 policyholder	 against	 his	 negligent	 acts.	 	 The	 Court’s	 decision	

today,	 stopping	 short	 of	 joining	 the	 Landry-Perreault	 line	 of	 cases,8	 see	

Court’s	Opinion	 ¶	 18,	 requires	 the	 trial	 court,	 in	 cases	 involving	 admittedly	

intentional	 assaults	 upon	 unsuspecting	 individuals,	 to	 make	 unnecessary	

findings	regarding	the	actor’s	subjective	state	of	mind	as	to	the	likelihood	and	

extent	of	the	victim’s	anticipated	injuries.		The	facts	of	such	cases	compel—as	I	

conclude	here—a	finding	that	the	actor	 must	have	 subjectively	foreseen	that	




    8		In	Landry,	we	said	that,	given	the	defendant’s	act,	“it	is	so	highly	likely	that	bodily	injury	[would]	

result	that	we	will	deem	willing	participation	.	.	.	to	be	the	intent	or	expectation	to	cause	the	bodily	
injury.”	 	 1998	 ME	 241,	 ¶	 9,	 720	 A.2d	 907.	 	 Similarly,	 in	 Perreault	 we	 said	 that	 “[h]arm	 from	 the	
[plaintiff’s	act]	[was]	so	highly	likely	to	occur	that	the	intent	to	commit	the	act	inherently	carries	with	
it	the	intent	to	cause	the	resulting	injury.”		568	A.2d	at	1101.		I	would	apply	the	same	rationale	to	
Francoeur’s	conduct.	
    	
                                                                                                        17	

his	 deliberately	 violent	 conduct	 would	 result	 in	 the	 injury	 that	 proximately	

resulted	from	the	assault.9	

	       [¶28]		This	approach	is	well	in	keeping	with	public	policy.		As	we	stated	

in	Landry	v.	Leonard:	

     Public	policy	is	also	a	consideration	in	reaching	[our]	conclusion.		
     The	general	rule	is	that	it	is	against	public	policy	for	insurance	to	
     indemnify	 an	 insured	 against	 his	 own	 criminal	 acts.	 	 People	 who	
     purchase	homeowners’	policies	do	not	intend	that	victims’	injuries	
     caused	by	convicted	robbers	during	an	armed	robbery	be	covered	
     by	the	robber’s	insurance	nor	do	they	expect	to	pay	premiums	to	
     share	in	the	coverage	of	such	risks.		Our	holding	today	is	consistent	
     with	public	policy.	
     	
1998	ME	241,	¶	11,	720	A.2d	907	(citation	omitted).	

	       [¶29]	 	 I	 concur	 in	 the	 Court’s	 decision	 vacating	 the	 Superior	 Court’s	

judgment	 and	 remanding	 for	 a	 judgment	 in	 favor	 of	 Vermont	 Mutual,	 but	

I	would	 add	 admittedly	 intentional	 assaults	 to	 our	 existing	 case	 law	 that	

imputes	intent	and	expectation	of	injury	to	specific	acts	and	the	injuries	that	

proximately	result	from	those	acts.	

	       	        	       	       	       	

	                                	


    9		The	rule	of	law	that	I	favor,	articulated	in	Clark,	529	P.2d	at	1196-97,	is	limited	to	assaults	that	

are	undeniably	intentional.		As	the	Court	notes,	Court’s	Opinion	¶	18	n.5,	the	crime	of	assault	can	be	
committed	recklessly,	and	recklessness	would	not	provide	the	basis	for	the	intentional	act	exclusion.		
The	rule	that	I	would	adopt	applies	only	to	intentional	assaults	and	the	injuries	proximately	resulting	
therefrom.
18	

James	D.	Poliquin,	Esq.	(orally),	Norman,	Hanson	&	DeTroy,	LLC,	Portland,	for	
appellant	Vermont	Mutual	Insurance	Company	
	
Alicia	 F.	 Curtis,	 Esq.	 (orally),	 and	 James	 E.	 O’Connell	 III,	 Esq.,	 Berman	 &	
Simmons,	P.A.,	Lewiston,	for	appellee	Jonathan	Ben-Ami	
	
	
York	County	Superior	Court	docket	numbers	CV-2014-22	and	-194	
FOR	CLERK	REFERENCE	ONLY	
