Andover Newton Theological School, Inc. v. Continental Cas. Co.

• Decision Date: 08 March 1990
• Docket Number: Nos. 89-1945,89-1946,s. 89-1945
• Citation: 901 F.2d 1
• Parties: 52 Fair Empl.Prac.Cas. 918, 53 Empl. Prac. Dec. P 39,805, 59 Ed. Law Rep. 1040 ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Plaintiff, Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant, Appellee. ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Plaintiff, Appellee, v. CONTINENTAL CASUALTY COMPANY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

901 F.2d 1

52 Fair Empl.Prac.Cas. 918,

53 Empl. Prac. Dec. P 39,805, 59 Ed. Law Rep. 1040

ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Plaintiff, Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant, Appellee.

ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Plaintiff, Appellee, v. CONTINENTAL CASUALTY COMPANY, Defendant, Appellant.

Nos. 89-1945, 89-1946.

United States Court of Appeals First Circuit.

Heard March 8, 1990.

Decided March 30, 1990.

Joan M. Griffin, with whom Casner & Edwards, Boston, Mass., were on brief, and Timothy C. Russell, with whom Drinker, Biddle & Reath, Washington, D.C., were on brief, for Continental Cas. Co.

Leonard F. Clarkin, Boston, Mass., for Andover Newton Theological School.

CERTIFICATION

LEVIN H. CAMPBELL, Chief Judge.

A central issue in this case turns on a significant question of Massachusetts law as to which we have found no controlling precedent in the decisions of the Supreme Judicial Court of the Commonwealth. On our own motion, therefore, we certify the following question of law to the Supreme Judicial Court of the Commonwealth pursuant to Mass. S.J.C. Rule 1:03.

Question of Law

1. Does a finding of willfulness under the Age Discrimination in Employment Act (ADEA), if based on a finding of "reckless disregard as to whether [defendant's] conduct is prohibited by federal law," constitute "deliberate or intentional ... wrongdoing" such as to preclude indemnification by an insurer under the public policy of Massachusetts as codified at Mass.Gen.L. ch. 175, Sec. 47 Sixth (b)?

Background Facts

Andover Newton Theological School (Andover) was found by a jury to have violated the ADEA by discharging Dr. Edmund Linn from his tenured faculty position when he was 62 years of age. The jury also found Andover's conduct to be willful under the ADEA. Andover was insured by Continental Casualty Company (Continental) for losses arising out of wrongful acts. The scope of the loss insured was specifically limited by policy language stating:

such subject of loss shall not include ... matters which shall be deemed uninsurable under the law pursuant to which this policy shall be construed.

The parties have agreed that Massachusetts law governs the policy. The district court for the District of Massachusetts held that a willful violation of the ADEA is not insurable under the public policy of the state of Massachusetts.

The jury found that Andover acted willfully, after being instructed that, under the ADEA, "[a] defendant acts willfully if it knows its conduct was prohibited by federal law or if it acts in reckless disregard as to whether its conduct is prohibited by federal law. 'Prohibited' being age discrimination in this case." Appendix at 29. The verdict did not specify whether the jury found that Andover "knew" that its conduct violated the law or whether it acted "in reckless disregard" of whether its conduct violated the law.

M.G.L. ch. 175, Sec. 47, Sixth (b) precludes the insurance of "any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing...." Clearly, if Andover knew its conduct violated the ADEA, its actions were "deliberate or intentional ... wrongdoing" within the meaning of M.G.L. ch. 175, Sec. 47. What is not clear, however, is whether a finding that Andover's conduct was "willful" within the meaning of the ADEA because it was taken "in reckless disregard" of the law renders the conduct deliberate or intentional wrongdoing that is uninsurable as a matter of public policy under Massachusetts law.

We have been directed to and have discovered only one case in which Massachusetts has interpreted M.G.L. ch. 175, Sec. 47, Sixth (b). In J. D'Amico, Inc. v. City of Boston, 345 Mass. 218, 225-226, 186 N.E.2d 716 (1962), the Supreme Judicial Court held that although a trespasser is a wrongdoer, there was no legislative intent to preclude insurance coverage for property damage arising from trespass occurring by mistake. It therefore held that the contractor, D'Amico, was entitled to insurance coverage if its trespass and cutting of trees was occasioned...