MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 155
Docket:   Cum-14-492
Argued:   September 18, 2015
Decided:  December 1, 2015

Panel:          ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


 METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

                                           v.

                          ESTATE OF ERIC E. BENSON et al.

MEAD, J.

         [¶1]    The Estate of Eric E. Benson appeals from a summary judgment

entered by the Superior Court (Cumberland County, Warren, J.) in favor of

Metropolitan Property and Casualty Insurance Company on Metropolitan’s

complaint seeking a declaratory judgment. On appeal, the Estate contends that the

Superior Court erred in concluding that an intentional loss exclusion in a

homeowner’s insurance policy precluded coverage for William Googins’s

intentional assault of Eric Benson, which resulted in Benson’s death. We affirm

the judgment.

                                  I. BACKGROUND

         [¶2]     On May 23, 2010, in Monument Square in Portland, a verbal

altercation arose between William Googins and Eric Benson after Googins made a

comment about Benson’s female companion. Googins then struck Benson in the
2

face. Benson fell backwards as a result of the single punch, hit his head on the

pavement, and died. Googins pleaded guilty to aggravated assault and served

approximately two years of a ten-year prison sentence.

        [¶3] The Estate sued Googins in tort based upon the 2010 incident. In

exchange for the Estate’s promise that it would not seek to execute a judgment

against Googins personally, Googins admitted that his negligence caused Benson’s

death. Googins consented to a judgment in favor of the Estate in the amount of

$400,000 and assigned to the Estate all the rights he may have had against

Metropolitan. Metropolitan’s potential liability stemmed from a homeowner’s

policy it issued to Googins’s grandmother that was active at the time of the

May 2010 incident.1          On September 23, 2013, the Superior Court entered a

judgment against Googins in the amount of $400,000 pursuant to the agreement

between Googins and the Estate.               Based on this judgment, the Estate filed a

reach-and-apply action against Metropolitan.

        [¶4] On March 5, 2013, Metropolitan filed a complaint for declaratory

judgment seeking a determination as to its obligation to indemnify Googins. On

June 11, 2014, Metropolitan moved for summary judgment on the ground that even

if Googins was insured under his grandmother’s policy, which it did not concede,

    1
      Although Googins is not a named insured on his grandmother’s policy, the Estate contends that he
falls within the definition of “insured” under the policy because he resided with his grandmother.
                                                                                                       3

the claim was nonetheless precluded by an intentional loss exclusion because

Googins intentionally punched Benson in the face.2 The Estate then filed what the

Superior Court treated as a cross-motion for summary judgment.                                       On

November 3, 2014, the court granted Metropolitan’s motion for summary

judgment, declaring that it had no contractual obligation to indemnify Googins

because the homeowner’s policy’s intentional loss exclusion barred coverage.

        [¶5] Metropolitan’s homeowner’s policy provides coverage for “all sums

for bodily injury and property damage to others for which the law holds you

responsible because of an occurrence to which this coverage applies.”3 The policy

defines “occurrence” as “an accident,” and “you” and “your” to mean:

        1. the person or persons named in the Declarations and if a resident of the
           same household:
           A. the spouse of such person or persons;
           B. the relatives of either; or
           C. any other person under the age of twenty-one in the care of any of the
           above . . . .

This broad coverage is limited by an exclusion for bodily injury or property

damage resulting from an “intentional loss,” which we discuss infra.



   2
      Metropolitan offered alternative theories in its motion for summary judgment, but the Superior
Court based its decision on only the intentional loss exclusion, and Metropolitan argues only that issue.
The other issues are deemed waived as a result of Metropolitan’s failure to address them. See Holland v.
Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205 (“The failure to mention an issue in the brief or at
argument is construed as either an abandonment or a failure to preserve that issue.”).
   3
     This decision omits the boldface type that Metropolitan employs for certain words and phrases in its
policy.
4

                                 II. DISCUSSION

      [¶6] The Estate argues that the court erred by entering a summary judgment

in favor of Metropolitan after determining that Googins’s conduct was within the

scope of the intentional loss exclusion.

      [¶7] “We review the grant of a motion for summary judgment de novo,

viewing the evidence in the light most favorable to the party against whom the

summary judgment has been granted in order to determine if there is a genuine

issue of material fact.”        Brady v. Cumberland Cty., 2015 ME 143,

¶ 10, --- A.3d --- (quotation marks omitted). “A fact is material if it has the

potential to affect the outcome of the suit, and a genuine issue of material fact

exists when a fact-finder must choose between competing versions of the truth.”

Angell v. Hallee, 2014 ME 72, ¶ 17, 92 A.3d 1154 (quotation marks omitted).

      [¶8] The interpretation of an insurance policy is reviewed de novo. Cox v.

Commonwealth Land Title Ins. Co., 2013 ME 8, ¶ 8, 59 A.3d 1280. An insurance

contract is ambiguous if it is “reasonably susceptible of different interpretations.”

Apgar v. Commercial Union Ins. Co., 683 A.2d 497, 498 (Me. 1996) (quotation

marks omitted). If there is an ambiguity, “a liability insurance policy must be

construed so as to resolve all ambiguities in favor of coverage.” Mass. Bay Ins.

Co. v. Ferraiolo Constr. Co., 584 A.2d 608, 609 (Me. 1990). On the other hand,

“[u]nambiguous language in an insurance contract must be interpreted according to
                                                                                  5

its plain and commonly accepted meaning.” Cookson v. Liberty Mut. Fire Ins. Co.,

2012 ME 7, ¶ 8, 34 A.3d 1156 (quotation marks omitted).

      [¶9] According to the terms of the homeowner’s policy, for Googins’s

actions to fall within the scope of coverage (1) he must have been a resident of the

same household as his grandmother, the policyholder; (2) the injury must have

arisen from an “occurrence”; and (3) the injury sustained by Benson cannot be the

result of an “intentional loss.” Googins must satisfy all three elements before his

actions may be considered within the terms of the policy, and Metropolitan can

appropriately deny coverage if any element is not satisfied.

      [¶10]    In its motion, Metropolitan argued that even if Googins is an

insured—that is, assuming he is a resident of the insured’s household and the

injury arose from an “occurrence”—his actions are nonetheless excluded from

coverage because of the intentional loss exclusion. Because Metropolitan assumes

arguendo that Googins was a resident of his grandmother’s household and that the

injury arose out of an “occurrence,” we do not address these predicates for

coverage. Metropolitan’s intentional loss exclusion provides:

      1.    Intentional Loss. We do not cover bodily injury or property
      damage which is reasonably expected or intended by you or which is
      the result of your intentional and criminal acts or omissions. This
      exclusion is applicable even if:

              A. you lack the mental capacity to govern your conduct;
6

            B. such bodily injury or property damage is of a different kind
            or degree than reasonably expected or intended by you; or
            C. such bodily injury or property damage is sustained by a
            different person than expected or intended by you.

      [¶11] The disjunctive policy language in the first sentence makes clear that

the intentional loss provision in Metropolitan’s homeowner’s policy includes two

different exclusions. The first exclusion is for “bodily injury or property damage

which is reasonably expected or intended by you.” The second exclusion is for

“bodily injury or property damage . . . which is the result of your intentional and

criminal acts or omissions.”

      [¶12] We have previously addressed insurance provisions similar to the first

exclusion. In Patrons-Oxford Mutual Insurance Co. v. Dodge, we interpreted a

policy that excluded coverage for “bodily injury or property damage which is

either expected or intended from the standpoint of the Insured.” 426 A.2d 888, 889

(Me. 1981). Similarly, in Royal Insurance Co. v. Pinette, we interpreted a policy

that excluded “bodily injury or property damage . . . which is expected or intended

by the insured.” 2000 ME 155, ¶ 2 n.2, 756 A.2d 520 (alterations in original).

After reviewing these provisions, among others, we held that an expected or

intended exclusion “applies only when the insured has acted with the intention or

expectation that another will be harmed by the insured’s intentional act.” Pinette,

2000 ME 155, ¶ 8, 756 A.2d 520.
                                                                                  7

      [¶13] The Superior Court denied summary judgment to Metropolitan after

concluding that Dodge and Pinette controlled the interpretation of the first

exclusion because the provisions at issue in those cases, and the first exclusion

here, all rely on the phrase “expected or intended.” However, unlike the provisions

in Dodge and Pinette, the Metropolitan policy also provides additional language in

subparts A, B, and C that may affect the applicability of Dodge and Pinette.

Because Metropolitan has not filed a cross-appeal on the denial of its motion for

summary judgment on the basis of the first exclusion, we need not address whether

the court’s application of Dodge and Pinette was correct.

      [¶14]   The issue on appeal is the second clause of the intentional loss

exclusion. The Estate argues that the court should not have entered summary

judgment for Metropolitan based on the second exclusion because the policy is

ambiguous with respect to the definition of “intentional” in the phrase “intentional

and criminal.” The Estate contends that Dodge controls the interpretation of the

second exclusion, thus requiring Googins to have intended to cause the death of

Benson for the exclusion to apply. The court rejected these arguments, concluding

that Dodge did not control the second exclusion because that exclusion does not

use the language “expected or intended by you.” Instead, the court construed the

second exclusion according to its unambiguous terms, requiring that an act be both

intentional and criminal for the exclusion to apply.
8

      [¶15]   Although we have not previously addressed the language of the

second exclusion, persuasive authority has rejected the same arguments presented

by the Estate here.    In Metropolitan Property and Casualty Insurance Co. v.

Morrison, the Massachusetts Supreme Judicial Court considered whether the word

“intentional” in the phrase “intentional and criminal” means the intent to commit

the conduct that caused injury or whether, as the Estate contends here, it also

requires the intent to cause the resulting harm. 951 N.E.2d 662, 664 (Mass. 2011).

Morrison held that the second exclusion is unambiguous and applies “where the

insured intended to commit the conduct that caused injury and where that conduct

was criminal.” Id. at 671. In rejecting the contention that “intentional” requires

the intent to cause the ultimate harm, the Massachusetts court noted that the

exclusion was distinct from previously construed exclusions because this exclusion

is predicated on both an intentional and criminal act. Id.

      [¶16] We similarly conclude that the second clause of the intentional loss

exclusion is unambiguous and requires both an intentional and criminal act. The

exclusion applies where an insured commits a volitional act resulting in injury, and

where that act is also criminal.      Although the Superior Court relied on the

explanatory language “[t]his exclusion is applicable even if[] . . . such bodily

injury or property damage is of a different kind or degree than reasonably expected

or intended by you,” we need not do so because the provision is unambiguous.
                                                                                                         9

        [¶17] Our holding today is limited to the precise language “intentional and

criminal acts or omissions” and does not affect our previous decisions construing

the exclusions at issue in Dodge, Pinette, and the trespass cases referenced in

Pinette, all of which involved policy language with no limiting principle, distinct

from the case here.4 If, in those cases, we had held that an act is “intentional” if it

is merely volitional, then all losses that resulted from an insured’s conscious

actions would not be covered. Such an interpretation would have been sweeping

and effectively negated coverage in nearly all cases.

        [¶18]     Here, however, the Metropolitan policy uses “intentional” in the

context of the phrase “intentional and criminal.”                      By using “intentional” in

conjunction with “criminal,” the word “intentional” has a broader meaning because

it is coupled with the limiting principle of criminality. This same rationale led the

court in Morrison to conclude that “intentional” means a volitional act, without

being overreaching. See Morrison, 951 N.E.2d at 671 (“By limiting the exclusion

to acts that are both intentional and criminal, the Metropolitan policy poses no risk

that the exclusion may be interpreted so broadly as to effectively negate the

   4
      See Royal Ins. Co. v. Pinette, 2000 ME 155, ¶ 2 n.2, 756 A.2d 520 (“[B]odily injury or property
damage . . . which is expected or intended by the insured.”) (alterations in original); Patrons-Oxford Mut.
Ins. Co. v. Dodge, 426 A.2d 888, 889 (Me. 1981) (“[B]odily injury or property damage which is either
expected or intended from the standpoint of the Insured.”); Gibson v. Farm Family Mut. Ins. Co.,
673 A.2d 1350, 1353 (Me. 1996) (“The policy specifically excludes from coverage any damages resulting
from an intentional act by the insured.”); Mass. Bay Ins. Co. v. Ferraiolo Constr. Co., 584 A.2d 608, 610
(Me. 1990) (“An ‘occurrence’ is defined as an accident . . . which results in bodily injury or property
damage neither expected nor intended from the standpoint of the insured.”) (alterations in original).
10

policy’s liability coverage for accidents.”). In this respect, the Metropolitan policy

aligns with the earlier guidance referenced in Morrison that insurers need to draft

exclusions predicated on narrower language, as opposed to the sweeping,

standalone concept of intentionality. Id. at 671-72.

      [¶19] Because we determine that the second exclusion is satisfied when the

injury is caused by an act of an insured that is both intentional and criminal, the

next question is whether the summary judgment record established both elements.

      [¶20] There is no genuine issue of material fact that Googins’s conduct was

intentional. Googins admitted to civil liability for Benson’s death by admitting to

all of the allegations contained in the Estate’s third amended complaint. The

complaint stated, “Googins’[s] contact with Benson and the resulting death were

caused by the negligence of Googins.” Despite denying intentional conduct in the

pleadings, Googins testified multiple times in his deposition that he intended to

strike Benson in the face.

      [¶21] Googins’s deposition reveals a clear intent to strike Benson in the

face, which caused Benson to fall over, hit his head, and die. Googins’s testimony

that he did not intend or expect to hurt Benson by punching him is irrelevant to the

second exclusion because that exclusion operates based on whether the insured

intended to commit the act, not whether he or she intended the ultimate harm.
                                                                                 11

Given that Googins unequivocally intended to strike Benson, the “intentional”

aspect of the second exclusion is satisfied.

      [¶22] Likewise, no genuine issue of material fact exists as to whether

Googins’s conduct was criminal. Googins pleaded guilty to aggravated assault and

served over two years in prison as a result of punching and ultimately killing

Benson.    The Estate correctly notes that Googins’s guilty plea to aggravated

assault, standing alone, does not conclusively prove intent as a matter of law

because    assault     can   be   committed    recklessly.    See   17-A    M.R.S.

§§ 207(1)(A), 208(1) (2014); Dodge, 426 A.2d at 891-92. This is of no occasion,

though, because Googins’s deposition testimony demonstrated an unequivocal

intent to strike Benson in the face.

      [¶23] Because no genuine issue of material fact exists as to the applicability

of the second exclusion, the Superior Court correctly entered a summary judgment

in favor of Metropolitan. No unresolved issues of material fact remain.

      The entry is:

                      Judgment affirmed.
12




On the briefs:

        Robert H. Furbish, Esq., and Alicia F. Curtis, Esq., Berman &
        Simmons, Lewiston, for appellant Estate of Eric E. Benson

        Jeffrey T. Edwards, Esq., Preti, Flaherty, Beliveau & Pachios,
        LLP, Portland for appellee Metropolitan Property & Casualty
        Insurance Company

At oral argument:

        Robert H. Furbish, Esq., for appellant Estate of Eric E. Benson


        Jeffrey T. Edwards, Esq., for appellee Metropolitan Property &
        Casualty Insurance Company



Cumberland County Superior Court docket number CV-2013-102
FOR CLERK REFERENCE ONLY
