Marculetiu v. Safety Ins. Co.

Decision Date02 October 2020
Docket NumberNo. 19-P-1407,19-P-1407
Citation157 N.E.3d 644,98 Mass.App.Ct. 553
CourtAppeals Court of Massachusetts

James E. Grumbach, Wellesley, for the plaintiff.

Sharon S. Angelino, of Connecticut, for National Casualty Insurance Company.

Tanya T. Austin, Boston, for Safety Insurance Company.

Present: Rubin, Milkey, & Massing, JJ.


When their paths first crossed in 2013, Cosmin Marculetiu and L.C. were ballet dancers at markedly different points in their respective careers. Marculetiu, then forty-four, had become a dance instructor of international renown. L.C., then twenty-three, had just completed college and hoped to make a career out of being a professional dancer. L.C. took some classes at a dance studio in Burlington operated by Marculetiu's company, International Ballet Academy of Norwell, Inc. (IBAN), and she appeared in performances of a ballet produced by IBAN. Any professional relationship between L.C. and Marculetiu ended in 2014 after she accused him of raping her during a trip to Romania for an international ballet competition. The following year, L.C. filed a multi-count civil action in Superior Court against Marculetiu and IBAN. Marculetiu denied L.C.'s allegations and counterclaimed for defamation, intentional interference with advantageous relations, and abuse of process. Both L.C.'s tort action (underlying case) and Marculetiu's counterclaims remain pending.

The appeal before us involves insurance coverage related to the underlying case. In 2016, Marculetiu filed a declaratory judgment action against National Casualty Insurance Company (National), which was IBAN's comprehensive general liability (CGL) insurance carrier, and Safety Insurance Company (Safety), his own homeowner insurance carrier. He alleged that both insurers had a duty to defend the underlying action, as well as a duty to indemnify him should he be held liable for damages in that action. Based principally on the fact that the underlying action involved allegations of rape and other intentional sexual assaults, each insurer filed a motion to dismiss claiming that, as a matter of law, it had no duty to defend or indemnify Marculetiu. The motions were allowed by separate judges, and judgment entered for the defendants. Marculetiu's motions for reconsideration also were denied, and Marculetiu appealed. For the reasons that follow, we affirm, albeit on different grounds than relied upon by either judge.

Background. 1. The claims set forth in the underlying action. Because the complaint in the underlying action provides the touchstone of whether the insurers had a duty to defend Marculetiu, we begin by summarizing the allegations set forth there.

According to her complaint, L.C. first met Marculetiu in August of 2013 when she attended a dance class at IBAN's studio in Burlington. The context of the meeting was that one of Marculetiu's students needed a new dance partner, and L.C. was trying out for that role. L.C. alleges that Marculetiu was impressed with her dancing skills and that he wanted her to dance under his tutelage and to perform in various productions with which he was associated. She began attending classes at the Burlington studio, during which -- she alleges -- Marculetiu sometimes touched her in a manner that made her uncomfortable. Together with her new partner, L.C. danced in performances of the Nutcracker Suite that IBAN produced. She also agreed to serve as a substitute dance instructor at the Burlington studio, although her services in that capacity apparently were never utilized. L.C. alleges that Marculetiu used his position of authority to gain her "trust and confidence."

According to the complaint, Marculetiu convinced L.C. to compete in the "World Ballet Competition" to be held in Romania in March of 2014. Marculetiu, who is originally from Romania, co-founded the event and served as one of its judges. He told L.C. that he would introduce her to many important people at the event, and that her attending it would be a boost to her career by "land[ing] her dancing contracts all over the country and world."

L.C. alleges that on the plane flight over to the dance competition, she awoke to find Marculetiu groping her with his hands under her shirt and down her pants. According to her, once they were in Romania, Marculetiu entered her hotel room (to which he had his own key), professed his love for her, "then forcibly removed her clothes and pushed her onto the bed, where he sexually assaulted her." Over the next several days, she alleges, he "repeatedly raped and sexually assaulted her" in her room. The complaint alleges that she was in an especially vulnerable position given that she was traveling alone in a foreign country where she did not speak the native language.

According to L.C., after four days of sexual assaults, she told Marculetiu that she did not want to have sex with him and had pretended to be in love with him only because she was scared of what he might do to her, including potentially not letting her return to the United States. She alleges that he initially was remorseful to hear this but then renewed his sexual assaults of her. She claims that on one occasion he raped her after he must have put a drug in her drinks, because -- after consuming six drinks -- she "could barely walk by herself or see straight." Marculetiu denies that he had any form of sexual contact with L.C. or that he ever made any sexual advances toward her.

L.C.'s complaint included ten counts brought against Marculetiu.2 Five of the counts allege various forms of sexual assault: rape, assault and battery, indecent assault and battery, assault with intent to rape, and drugging for sexual intercourse. The remaining counts are for intentional infliction of emotional distress, false imprisonment, negligence, breach of fiduciary duty, and loss of consortium. Further details regarding these counts are reserved for later discussion.

As explained below, whether National owed Marculetiu any duties under IBAN's CGL policy was resolved first, based only on the allegations in L.C.'s complaint in the underlying action. When the second judge addressed Safety's duties under the homeowner's policy, he had before him some additional factual materials that had been elicited in discovery. Then, after both motions to dismiss had been allowed, Marculetiu filed a motion seeking reconsideration of both rulings, and attached to that motion were additional discovery materials, including deposition transcripts. In particular, the transcripts of the depositions of L.C., and of one of her therapists, provide illuminating detail about what she specifically was alleging occurred during the trip to Romania.3 For present purposes it suffices to note the following. At least with respect to some of the sexual encounters that L.C. alleged, certain statements that she made -- either directly in her deposition or to her therapist -- could be taken by a fact finder as being in tension with her claims that any actions taken by Marculetiu rose to the level of forcible rape. For example, L.C. stated that she, at various points, affirmatively took actions expressly designed to make Marculetiu believe that she welcomed a sexual relationship with him.4 At the same time, the deposition transcripts also suggest that if L.C. acquiesced to any sexual advances that Marculetiu might have made, she did so in the context of a mentor-mentee relationship in which there was a significant imbalance of power.

2. Relevant policy provisions. a. CGL policy. IBAN purchased a CGL policy from National. The "coverage territory" under the policy is defined to include not only the United States, but "[a]ll other parts of the world if the injury or damage arises out of ... activities of a person whose home is in [the United States], but is away for a short time on [the insured's] business ...."

IBAN itself is the principal insured under the CGL policy.5 However, employees of IBAN are also insureds, "but only for acts within the scope of their employment by [IBAN] or while performing duties related to the conduct of [IBAN's] business." Similarly, IBAN's " ‘executive officers’ and directors are insureds, but only with respect to their duties as [IBAN's] officers or directors."

Three types of coverage under the CGL policy potentially apply. "Coverage A" applies to property damage and bodily injury claims caused by an occurrence. "Occurrence" is defined in the standard manner to "mean[ ] an accident." Various exclusions apply to Coverage A, including one for injuries "expected or intended from the standpoint of the insured."

"Coverage B" applies to "personal and advertising injury," which is defined to include claims for false imprisonment. Various exclusions apply. One is for " ‘personal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury.’ " Another exclusion is for " ‘personal and advertising injury’ arising out of a criminal act committed by or at the direction of the insured."

By separate endorsement, IBAN also purchased "professional liability coverage for sports or fitness activities." This coverage applied to claims for bodily injury or property damage caused by a "wrongful act," which was defined to include "any breach of duty, neglect, error, omission, misstatement, or misleading statement in the discharge of ‘sports or fitness activities.’ " Various exclusions apply, including one for "[a]ny claim or ‘suit’ arising out of either undue familiarity, sexual abuse or licentious, immoral or sexual behavior intended to lead to, or culminating in any sexual act, whether caused by, or at the instigation of, or at the direction of, either known or unknown by any insured or the customers or patrons of the [n]amed insured."

In addition to the individual exclusions that apply to...

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