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16-P-32                                              Appeals Court

     LIBERTY MUTUAL FIRE INSURANCE COMPANY     vs.   RYAN CASEY
                           & another.1


                             No. 16-P-32.

          Essex.       November 7, 2016. - March 29, 2017.

              Present:   Cypher, Massing, & Sacks, JJ.


Insurance, Homeowner's insurance, Insurer's obligation to
     defend. Intentional Conduct.



     Civil action commenced in the Superior Court Department on
May 22, 2014.

     The case was heard by Robert A. Cornetta, J., on motions
for summary judgment.


    Richard J. Fallon for Ryan Casey.
    Joseph M. Orlando, Jr., for Evan Williams.
    John P. Graceffa for the plaintiff.


    SACKS, J.      Twice on the same evening, after consuming

alcohol and marijuana, Ryan Casey attacked Evan Williams without

warning, punching and kicking him in the face and causing him

serious bodily injury.     Casey later admitted that he "intend[ed]

    1
        Evan Williams.
                                                                     2


to touch" Williams, and that he understood, at least at the time

of his deposition, that "[w]hen you hit somebody with a fist

. . . you know you're going to do some level of injury."

Williams subsequently made a claim under the homeowners

insurance policy on Casey's familial home.    The insurer, Liberty

Mutual Fire Insurance Company (Liberty Mutual), responded by

commencing this action seeking a declaration that it had no duty

to defend or to indemnify Casey, or to pay medical expenses for

Williams, due to an exclusion in the policy for bodily injury

"[w]hich is expected or intended by the insured."    On cross

motions for summary judgment, a Superior Court judge ruled in

favor of Liberty Mutual, concluding as a matter of law that

Casey expected or intended to cause Williams bodily injury.

Williams and Casey appeal, arguing that there is a genuine issue

of material fact regarding Casey's intent to injure.2   We affirm.

     1.   Background.   We recount certain undisputed material

facts from the summary judgment record, reserving for later


     2
       We note that Williams and Casey filed their notices of
appeal before judgment entered. See Mass.R.A.P. 4(a), as
amended, 464 Mass. 1601 (2013) (notice of appeal must be filed
within thirty days of entry of judgment). Because Liberty
Mutual does not raise the issue and we see no prejudice, we
reach the merits of the appeal. See Swampscott Educ. Assn. v.
Swampscott, 391 Mass. 864, 865-866 (1984) ("[A] decision on the
merits should not be avoided on the technicality that a
premature notice of appeal was or may have been filed, where no
other party has been prejudiced by that fact"). See also Matter
of a Care and Protection Summons, 437 Mass. 224, 231 n.14
(2002).
                                                                     3


discussion the facts concerning Casey's intent.     On the evening

of June 26, 2013, Casey, then seventeen years old, attended the

St. Peter's fiesta celebration (fiesta) in Gloucester with two

friends, Dylan Chaney and Forrest Turner.     Prior to arriving,

Casey had consumed alcohol and smoked marijuana.3    At some point

while at the fiesta, Casey encountered Williams, also seventeen

years old, and the two left on foot in the company of Chaney and

Turner, allegedly to go smoke marijuana.4   After the group

arrived at a remote location nearby, Casey "sucker punched"

Williams in the face with a closed fist.    Casey then punched

Williams in the face several more times, kicked him in the face

once, and departed with Chaney and Turner, leaving Williams

seriously injured on the ground.

     Eventually, Williams got to his feet and located the other

three nearby.    As Williams approached, and spoke with Chaney and

Turner, Casey separated from the group, came up behind Williams,

and again "sucker punched" him in the face with a closed fist,

causing additional serious bodily injuries.     Casey, Chaney, and

Turner then departed for a second time.5


     3
       Casey could not recall at deposition how much he had
consumed, but estimated that he had smoked marijuana multiple
times and had drunk more than five or six alcoholic beverages.
     4
         See note 14, infra.
     5
       Williams attempted to walk home, but gave up and
telephoned his mother, who came and took him to a local
                                                                    4


     Subsequently, Casey was indicted for the attacks and

pleaded guilty to assault and battery by means of a dangerous

weapon (shod foot) and assault and battery causing serious

bodily harm.6   He was sentenced for the first offense to two and

one-half years in a house of correction, with two years to be

served and the balance suspended while he served a three-year

period of probation for the second offense.

     Williams then made a claim under the Liberty Mutual

homeowners insurance policy of Casey's parents.7    Potentially,

both Casey and Williams are entitled to coverage under the

policy.   As an insured under the policy, Casey is potentially

entitled to a defense and to "personal liability" coverage

(coverage E) "[i]f a claim is made or a suit is brought against

[him] for damages because of 'bodily injury' . . . caused by an

'occurrence' to which [the] coverage applies."     Williams, in

turn, is potentially entitled to "medical payments to others"



hospital. Due to the severity of his injuries, Williams was
transferred to a Boston hospital, where he underwent surgery.
     6
       During the plea colloquy, Casey agreed with the
prosecutor's summary of the evidence. A guilty plea, unlike a
guilty verdict rendered by a jury, is only evidence of intent in
a civil action; it is not conclusive. See Aetna Cas. & Sur. Co.
v. Niziolek, 395 Mass. 737, 747 (1985); Flood v. Southland
Corp., 416 Mass. 62, 70 (1993).
     7
       After Liberty Mutual filed this action, Williams filed an
action against Casey and his father, which Liberty Mutual
informs us has been stayed pending the resolution of this
appeal.
                                                                      5


coverage (coverage F) for "bodily injury" that "[i]s caused by

the activities of an 'insured.'"   The policy contains certain

"exclusions," however, including a clause providing that

coverage E and coverage F "do not apply to 'bodily injury' . . .

[w]hich is expected or intended by the 'insured', even if the

resulting 'bodily injury' . . . is of a different kind, quality,

or degree than initially expected or intended."    It is that

clause that the judge held excludes coverage for Casey and

Williams.8

     2.   Standard of review.   Our review of the summary judgment

is de novo, meaning we consider all of the evidence that was

before the motion judge and draw all reasonable inferences

therefrom in a light most favorable to Casey and Williams.      See

Miller v. Cotter, 448 Mass. 671, 676 (2007); Albahari v. Zoning

Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 n.4

(2010).   Liberty Mutual, as the moving party, has the burden of

establishing that there is no genuine issue as to any material

fact and that it is entitled to judgment as a matter of law.

See Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 777

(2013).



     8
       The judge had denied an earlier motion for summary
judgment filed by Williams because, inter alia, "the issue of
intent is a question of fact in dispute." After further
discovery, including Casey's deposition, the judge granted
Liberty Mutual's motion, leading to the present appeal.
                                                                     6


     3.   Discussion.   The "expected or intended" language of the

exclusionary clause at issue here has been considered by the

Supreme Judicial Court in several cases.    See Quincy Mut. Fire

Ins. Co. v. Abernathy, 393 Mass. 81, 83-86 (1984); Newton v.

Krasnigor, 404 Mass. 682, 684-686 (1989); Worcester Ins. Co. v.

Fells Acres Day Sch., Inc., 408 Mass. 393, 399-400 (1990) (Fells

Acres); Hanover Ins. Co. v. Talhouni, 413 Mass. 781, 783-787

(1992); Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 369-371

(1996).   Those cases establish that, to prevail at the summary

judgment stage based on the exclusion, Liberty Mutual must

establish that there is no genuine dispute that Casey "intended,

or knew with substantial certainty, that some injury would

result from his conduct."   Talhouni, supra at 785, quoting from

Kowalski v. Gagne, 914 F.2d 299, 304 (1st Cir. 1990).    See

Abernathy, supra at 87 ("two crucial issues" are "whether [the

insured] intended . . . to cause injury . . . or whether [the

insured] knew to a substantial certainty that such injuries

would ensue from his actions").9   This does not require Liberty

Mutual to prove that Casey intended to cause "the precise

     9
       In Abernathy, the court explained the effect of including
the word "expected" in the disjunctive ("expected or intended"),
393 Mass. at 84, in the exclusionary clause: "Our cases have
concluded that an injury is nonaccidental only where the result
was actually, not constructively, intended, i.e., more than
recklessness. . . . This standard requires a showing that the
insured knew to a substantial certainty that the bodily injury
would result. Thus, we conclude the word 'expected' brings no
change to our well-defined concept of 'accident.'" Id. at 86.
                                                                    7


injury" that occurred.     Talhouni, supra at 784, citing

Krasnigor, supra at 686.

     Liberty Mutual's burden is not insubstantial.      Intent to

injure has been inferred as a matter of law in only a few cases

involving exclusionary clauses.10    In Fells Acres, the Supreme

Judicial Court ruled that the rape and sexual assault at issue

there, "because of their direct and forcible nature," required

the court to "conclude, as a matter of law, that the insureds

intended to cause at least some injury."     408 Mass. at 400.

Such acts were, by their nature, "indistinguishable from any

other deliberate assault and battery."     Ibid.   As the court

further explained, "[t]he 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 performed

the act intended the resulting harm, and his statement to the

contrary does nothing to refute that rule of law."      Ibid.

(citation omitted).   "[R]eason mandates that from the very

nature of the act, harm to the injured party must have been

intended."   Ibid. (citation omitted).

     10
       The limited number of cases in this area is consistent
with the concern that "where motive, intent, or other state of
mind questions are at issue, summary judgment is often
inappropriate." Flesner v. Technical Communications Corp., 410
Mass. 805, 809 (1991). See Abernathy, 393 Mass. at 86 (summary
judgment "disfavored" in such cases). "That is not to say,
however, that, in such cases, summary judgment is always
inappropriate." Brunner v. Stone & Webster Engr. Corp., 413
Mass. 698, 705 (1992).
                                                                   8


     Other decisions inferring intent to injure as a matter of

law from the nature of the act include Krasnigor, 404 Mass. at

687-688 (insured's intentional setting of fire inside school,

absent evidence of any other motive such as need for warmth or

light, implied, as matter of law, intent to cause some property

damage); Doe, 423 Mass. at 369 ("Although an adult who engages

in unlawful sexual behavior toward a minor may not subjectively

intend to harm the child, . . . intent to injure is inferred as

a matter of law"); and Terrio v. McDonough, 16 Mass. App. Ct.

163, 169 (1983) ("[I]t is self-evident that if a person is

pushed down a flight of stairs it is to be expected that person

will be hurt").11

     Here, it is undisputed that Casey punched Williams multiple

times and kicked him once in the face -- acts that, under Fells

Acres, 408 Mass. at 400, mandate as a matter of law an inference

     11
        To be sure, not every assault and battery mandates an
inference of intent to injure for exclusion clause purposes.
Like here, assaults and batteries occurred in Abernathy, 393
Mass. at 82, 87 n.4, and Preferred Mut. Ins. Co. v. Gamache, 42
Mass. App. Ct. 194, 196 n.5, S.C., 426 Mass. 93 (1997), but the
particular nature of the acts at issue in those cases did not
mandate such an inference. As the Supreme Judicial Court
cautioned in Krasnigor, 404 Mass. at 686 n.7, the inference of
intent:

     "is not based on the tort principle that one is considered
     to have intended the natural and ordinary consequences of
     one's voluntary act. Rather, [i]t is a much more narrow
     gauge that recognizes the correlation [between act and
     intent] only where reason mandates that from the very
     nature of the act, harm to the injured party must have been
     intended" (quotation omitted).
                                                                   9


of intent to cause harm.   Casey and Williams nevertheless

maintain that there is a genuine dispute of material fact as to

whether Casey's voluntary consumption of alcohol and marijuana

before the attacks prevented him from forming the intent to

injure Williams, thereby precluding the entry of summary

judgment.   On this record, we disagree.

     Casey was arrested by the Gloucester police one week after

the attacks and was interviewed by two detectives.12   The

transcript of the interview reflects that, when queried about

the reason behind his actions, Casey explained that he had lent

Williams money to purchase marijuana approximately one year

earlier, and Williams had not fully repaid him.   In Casey's

view, Williams had "robbed" him, and that thought came back to

him when he saw Williams at the fiesta, causing him to become

"pretty heated."13



     12
       Casey argues that some of the detectives' questions were
coercive and misleading and, in essence, that his subsequent
deposition testimony is entitled to greater weight. Casey
neither made this argument in his summary judgment opposition
papers nor offered any evidence that would support it. Casey
never stated in his deposition or otherwise that the police
questioning was coercive or misleading, nor did he expressly
disavow anything he had told the police. In any event, his
deposition testimony does not contradict in any material way
what he told the police.
     13
       "So we all get down there and by this time I was fairly
intoxicated and I confronted [Williams] and then I hit him and I
was already pretty heated about the situation before because
when -- seeing him brought back like, you know, he robbed me and
                                                                     10


     As the group started walking away from the fiesta in order

to smoke marijuana,14 the "wheels started spinning" in Casey's

mind and he thought to himself, "OK, when [he got] down there,"

he was going to "whack" Williams; Casey made a "plan to hit

him."     And, by Casey's own admission, he proceeded to do just

that; he "sucker punched" and kicked Williams.     Furthermore,

when asked whether someone else had held Williams's arms during

the first attack, Casey said, "I wouldn't let that happen.        No.

The problem I had was between me and him.     That's how I wanted

to solve it.    Just me and him."   Finally, when Williams found

and approached the trio after the first attack, Casey admitted

that he "snuck around again and . . . hit him again."

     It is undisputed, therefore, that Casey had both a clear

motive and a purposeful plan to "solve" his "problem" with

Williams.    The plan, even if not thought out far in advance or

in great detail, included using "sucker punche[s]" and

repositioning himself in order to make a "sn[ea]k" attack when

the opportunity presented itself.

     Later, at his deposition, Casey stated:     "I wouldn't have

done what I did if I wasn't intoxicated"; "I attacked him


everyone knew it, so everyone was talking about it.     You know, I
got heated. I lost my cool and . . . [y]eah."
     14
       Although Casey told the police that this was the group's
plan, Williams denied that he intended to or did smoke marijuana
after leaving the fiesta. No party contends that this dispute
is material.
                                                                   11


because I wasn't in the right state of mind"; "I planned it

while I was intoxicated that night"; "If I wasn't drunk, I

wouldn't have planned it;" and "[I] lost control."    Casey and

Williams maintain that these and similar statements create a

genuine dispute regarding Casey's intent to injure.    Again, we

disagree.

     These statements merely further explain, rather than

contradict, Casey's earlier statements -- a number of which he

adopted at his deposition -- regarding his motive and plan for

attacking Williams.   Taken as a whole, Casey's statements, when

viewed in a light most favorable to him, establish that the

effects of the alcohol and marijuana, acting in combination with

his preexisting anger at Williams, led to the attacks.    Even

though he was under the influence of alcohol and marijuana,

however, he was by his own admission not so significantly under

the influence or "out of control" that he lost the capacity to

plan, and to act effectively on that plan.15

     Casey testified that he attacked "because [he] wasn't in

the right state of mind" and "because [Williams] owed [him]

money and [Williams] was trying to stiff [him] and [he was]

     15
       At Casey's deposition, counsel for Williams asked
whether, before or at the time Casey began to consume alcohol
and marijuana on the day in question, he had any intent to
attack Williams, and Casey answered that he did not. This
testimony created no genuine issue of material fact, given
Casey's admission that after he began to consume alcohol and
marijuana, he did, in fact, formulate a "plan to hit" Williams.
                                                                   12


upset."   Asked why he felt it necessary to attack Williams a

second time, Casey replied, "I wasn't thinking"; when asked how

that attack occurred, he agreed that "I kind of snuck around

again and I hit him again," illustrating that he retained

sufficient capacity to plan a more effective attack.    Casey

remembered punching, kicking, and then leaving Williams.    Casey

agreed that he was not forced to kick Williams; rather, he did

so of his "own free will."

    Finally, and most significantly, Casey admitted that he

"intend[ed] to touch" Williams, and that he (Casey) understood,

at least at the time of his deposition, that "[w]hen you hit

somebody with a fist . . . you know you're going to do some

level of injury."   Notwithstanding Casey's conclusory testimony

to the effect that he did not "intend to injure" Williams, his

capacity to form the intent to hit Williams, therefore, was

established beyond dispute, and thus under Fells Acres, 408

Mass. at 400, his intent to injure Williams is inferred.    "[H]is

statement to the contrary does nothing to refute that rule of

law."   Ibid. (citation omitted).

    Indeed, because Casey intended to commit the inherently

harmful act, his subjective intent as to the degree of injury he

intended to cause is irrelevant.    See Doe, 423 Mass. at 369

("Although an adult who engages in unlawful sexual behavior

toward a minor may not subjectively intend to harm the child,
                                                                     13


. . . intent to injure is inferred as a matter of law"); id. at

370-371 ("Although the adverse consequences may not have been

intended, the act itself was still intentional").    See also

Fells Acres, 408 Mass. at 400-401 ("The mere fact that, as a

group, child abusers have a variety of motives does not render

their harmful actions unintentional").

     These facts distinguish the present case from Talhouni,

where the insured had taken lysergic acid diethylamide (LSD)

prior to committing an indecent assault and battery.    413 Mass.

at 782, 783 n.5.    There the court characterized Fells Acres as

"not dispositive[,] as it involved physical acts warranting the

inference that the insured intended the resulting harm," id. at

785, in apparent contrast to Talhouni's acts.   The court

therefore proceeded to consider the insured's "capacity to form

intent."   Ibid.   The court agreed that "evidence of voluntary

intoxication is relevant to determining the presence or absence

of intent," and upheld a trial judge's finding that Talhouni

"did not know with substantial certainty that some injury would

result from his conduct," because he "was completely out of

touch with reality, was hallucinating and delusional, and did

not know that he was assaulting another human being."16     Id. at


     16
       At Casey's deposition, counsel for Williams similarly
asked, "[I]s it fair to say that you did not know, essentially,
that you were assaulting another human being?" Casey answered,
"Yes." In light of Casey's admissions that he intended to touch
                                                                    14


787.    Indeed, Talhouni's LSD-induced delusionary state was so

extreme that it might be inferred that he lacked even the

capacity to form the intent to commit the underlying acts.17

Ibid.       In any event, Talhouni is a far cry from this case, where

Casey, although intoxicated, committed the prototypical act

mandating an inference of intent to do harm, admitted that he

intended that act, and admitted that his anger at Williams was

part of his reason for doing so.

       Similarly distinguishable is Preferred Mut. Ins. Co. v.

Gamache, 42 Mass. App. Ct. 194, 197-200, S.C., 426 Mass. 93

(1997), involving a policy exclusion for bodily injury caused by

an insured's intentional act, which the court construed to




Williams and remembered punching and kicking him, we can only
view this exchange as expressing a desired legal conclusion
rather than as creating any genuine issue of material fact. The
applicability of the "expected or intended" clause does not turn
on whether the insured knew that his actions constituted an
assault.
       17
       "Talhouni was a wild man out of control . . . growling
and mumbling in what appeared to be a foreign language" and
saying as he attacked the female victim, who was a stranger to
him, "kill the bitch" and "the bitch must die." Talhouni, 413
Mass. at 782 (quotation marks omitted). After the attack,
Talhouni "crashed through the glass entry door" and was found
"thrashing about, like a fish out of water, in the broken glass
. . . oblivious to the fact that he was cutting himself" and
failing to recognize that the persons who had arrived on the
scene were police officers. Id. at 783 (quotation marks
omitted).
                                                                         15


require an intent to injure.18       In Gamache, an apparently

intoxicated insured, in the course of resisting arrest, lay on

the ground flailing his arms and legs and then grabbed a police

officer's utility belt in an effort to hoist himself to his

feet; this caused the officer to lose his balance and injure his

knee.     Id. at 195-196.    The court rejected the insurer's

argument that the insured's act was of such a nature that an

intent to injure could be inferred as a matter of law.          Id. at

200-201.    Indeed, the conduct was "arguably more neutral than

the conduct at issue in Talhouni . . . and . . . Abernathy,"19

cases in which "the insured's intent to injure was a question

for the factfinder."        Id. at 200, 201.   Thus, the summary

judgment granted to the insurer was vacated and the case

remanded to resolve genuine disputes of material fact regarding

the insured's "possible intoxication and its effect, if any, on

his mental capacity."       Id. at 201 n.8.    Here, in contrast, Casey

     18
       The exclusion denied coverage for "bodily injury . . .
which results directly or indirectly from . . . an intentional
act of an insured." Gamache, 42 Mass. App. Ct. at 196.
     19
       In Abernathy, the insured threw a piece of blacktop at a
moving car in the dark; the object shattered the car windshield
and injured the driver and a child sitting in the back seat.
393 Mass. at 82, 87-88. The court held that the act, although
intentional, was not by itself a sufficient basis to infer
intent to injure, thus leaving a question of fact whether the
insured had such an intent so as to trigger the policy
exclusion. Id. at 87-88. As the Fells Acres court later
explained, 408 Mass. at 399, in Abernathy, "it was possible that
the injuries resulting from the insured's intentional act were
accidental."
                                                                 16


committed an act mandating an inference of intent to injure, and

he admitted that he intended that act.

     In short, proof that the insured had the capacity to form

and did form the intent to do an act, where the nature of that

act mandates an inference of intent to injure, suffices to prove

the insured's intent to injure.   Additional proof of the

insured's capacity to form that intent to injure is not

required.20


     20
       We recognize that Fells Acres referred briefly to the
issue of capacity to form intent to injure, 408 Mass. at 401 --
but only after concluding that the acts themselves were
"intentional" and "deliberate," id. at 399, 400, and of a nature
that mandated an inference of intent to injure, id. at 400. The
court imposed no further burden on the insurer to prove capacity
to form intent to injure, but instead observed that nothing in
the claimants' evidence raised any doubts about that capacity.
Id. at 401 ("Nowhere in the record is there a jot of evidence
suggesting that the tort defendants were suffering from a mental
disease or defect that would render them incapable of forming an
intent to harm the child plaintiffs"). The court concluded its
discussion by reiterating the "rule that intent to injure may be
inferred from the intentional commission of an inherently
injurious act." Id. at 402.

     Nor do we read Talhouni's references to Fells Acres to
require that an insurer prove capacity to form intent to injure.
See Talhouni, 413 Mass. at 785 ("In Fells Acres, we referred
again to the need to consider evidence on the capacity issue in
determining whether an insured acted with the requisite intent
for the purposes of the exclusion"); id. at 788 ("Fells Acres
expressed the view that the parties must present evidence
indicating that the insured is capable, or incapable as the case
may be, of forming the intent to harm"). Where an insurer has
shown that the insured had the capacity to and did form the
intent to commit an act, and that act was inherently injurious,
we read Fells Acres as merely leaving the door open to insureds
and other claimants to attempt to show that capacity to form
intent to harm was nevertheless lacking.
                                                                  17


     4.   Conclusion.   Based on Casey's own memory of the events,

there is no genuine dispute that, notwithstanding his

consumption of alcohol and marijuana, Casey had the capacity to

form the intent, and did intend and plan, to hit Williams.

Given the nature of the act, see Fells Acres, 408 Mass. at 400,

Casey must be held as a matter of law to have expected or

intended to cause Williams some bodily injury.    The judge

therefore did not err in ruling that the policy exclusion for

bodily injuries expected or intended by the insured relieved

Liberty Mutual of its duties to defend and to indemnify Casey

and to pay medical benefits to Williams.21

                                     Judgment affirmed.




     21
       Williams also challenges the award of statutory costs to
Liberty Mutual. Liberty Mutual responds that it is not seeking
such costs. The sole authority cited by Williams, John T.
Callahan & Sons, Inc. v. Worcester Ins. Co., 453 Mass. 447
(2009), focuses on one insurer's recovery of attorney's fees
from another. It does not establish any exception, for actions
by insurers against insureds to resolve coverage and similar
disputes, to the general rule that prevailing parties are
entitled to their costs. See G. L. c. 261, § 1; Mass.R.Civ.P.
54(d), as appearing in 382 Mass. 821 (1980). See also G. L.
c. 231A, § 7 (in action solely for declaratory judgment, costs
lie wholly in court's discretion). We therefore decline to
disturb the judgment on this point. The parties may, of course,
raise the issue in the trial court.
