(Article from Insurance Law Alert, September 2018)
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Vacating a lower court decision, the Supreme Judicial Court of Maine ruled that injuries resulting from an attack on a high school student were expected and intended and thus excluded from coverage under a liability policy. Vermont Mut. Ins. Co. v. Ben-Ami, 2018 ME 125 (Aug. 21, 2018).
The factual record established that two students, Francoeur and Ben-Ami, engaged in a verbal dispute during a school event and that Francoeur later planned an attack on Ben-Ami. On the day of the assault, Francoeur approached Ben-Ami from behind in a classroom and struck him multiple times in the face. Ben-Ami sustained a broken jaw and other serious injuries.
The central issue in dispute was whether coverage under Francoeur’s homeowner’s policy was barred by an exclusion for “bodily injury . . . [w]hich is expected or intended by the insured.” Under Maine law, this exclusionary language has been deemed ambiguous as to whether it requires an objective standard or rather a subjective perspective based on the insured’s personal beliefs and intent. Resolving this ambiguity in favor of the insured, Maine courts have interpreted the 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 subjective foresaw as practically certain (‘expected’) to be a result of his [or her] conduct.” Applying this legal standard, the lower court concluded that the exclusion did not apply. The trial court reasoned that Francouer did not consider the consequences of his actions and did not subjectively intend the extent of injuries that he caused.
The Supreme Judicial Court of Maine vacated the decision, holding that the lower court’s findings regarding Francouer’s expectation and intent were factually inconsistent with the account of the attack. More specifically, the Supreme Judicial Court of Maine ruled that in light of the premeditated nature of the assault, the ambush tactic and magnitude of the 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.”
Significantly, the court declined to adopt a bright line rule that physical assaults categorically fall within an expected or intended exclusion as a matter of law. Although Maine has recognized that some actions invoke the exclusion as a matter of law (e.g., sexual assault, murder, armed robbery), the court reasoned that a physical altercation is qualitatively different than those types of conduct.