Terrio v. McDonough

• Decision Date: 15 June 1983
• Citation: 450 N.E.2d 190,16 Mass.App.Ct. 163
• Parties: , 31 A.L.R.4th 943 Rosanna TERRIO v. Francis E. McDONOUGH, Jr.; Hartford Fire Insurance Company, third-party defendant.
• Court: Appeals Court of Massachusetts

Page 190

450 N.E.2d 190

16 Mass.App.Ct. 163, 31 A.L.R.4th 943

Rosanna TERRIO v. Francis E. McDONOUGH, Jr.;

Hartford Fire Insurance Company, third-party defendant.

Appeals Court of Massachusetts,

Middlesex.

Argued February 16, 1983.

Decided June 15, 1983.

George F. Gormley and Alice A. Hanlon, Boston, for Francis E. mCdonough, jr.

Linda E. Giles, Boston, for Rosanna Terrio.

John F. Kehoe, Boston, for Hartford Fire Ins. Co.

Before BROWN, CUTTER and KASS, JJ.

KASS, Justice.

Without giving effect to subclassifications, the defendant McDonough argues seven categories of error in the trial of a civil action against him for sexual assault and battery and assault and battery. A jury returned a verdict of $15,000 for the plaintiff. The defendant impleaded his homeowner's insurance carrier, ¹ and the trial judge directed a verdict for the insurer, Hartford Fire Insurance Company (Hartford), on the plaintiff's opening. We affirm.

An outline of the facts suffices to introduce the legal questions raised. Rosanna Terrio, the plaintiff, had a brief love affair with McDonough in May, 1977. On March 14, 1979, in the late afternoon, Terrio was driving past where McDonough lived and, on impulse, dropped in to see him. McDonough had just showered and answered the door clad in a bathrobe. After some conversation McDonough expressed his regret that he had nothing to offer for a drink. Terrio went to a nearby liquor store and returned to McDonough's apartment with a bottle of whiskey. The two shared several drinks and talked some more about old times.

Sexual intercourse followed, and the attendant circumstances are a subject which the parties sharply dispute. McDonough's testimony describes a consensual rekindling of the extinguished passion; Terrio's account described a rape. Following the sexual episode, Terrio left McDonough's apartment, which was on the second floor level of a two-family house. Terrio was scarcely out of the building when she realized she had forgotten her purse and shawl and went back up the stairs to retrieve them. In the course of that errand she talked over the telephone with McDonough's fiancee, again in circumstances which are disputed. Terrio said an angry and violent McDonough demanded that she speak with his fiancee; McDonough describes the conversation as the act of a drugged (he testified that Terrio had dosed herself with valium), drunken and malicious woman wishing to make trouble for him.

Thereafter, Terrio tumbled down the stairs and crashed through a glass panel in an exterior door at the bottom of the stairs. McDonough testified that Terrio fell; Terrio said she was pushed.

Terrio suffered two lacerations which required sutures, one on her thumb and one in the right temporal area. Examination at the Newton-Wellesley Hospital, to which McDonough took her, disclosed additional glass wounds on her lower legs and bruises on her arms and upper buttock. To the extent that it is necessary to draw on the parties' elaborate and often conflicting accounts of the events of that afternoon and evening, we shall do so in connection with the issues raised.

1. Obligation of McDonough's Insurer to Defend.

Terrio's complaint alleged that McDonough forced her to submit against her will to sexual intercourse and unnatural acts and that he committed an assault and battery upon her. In his answer, McDonough, in addition to denying the allegations of the complaint, said that, if he had any responsibility at all for Terrio's plunge down the stairs, the blame was attributable to his failure to maintain his back stairs in safe condition, i.e., his negligence. Having thus raised the issue of negligence respecting his living quarters, McDonough filed a third-party complaint against Hartford.

After Terrio's opening, Hartford moved for a directed verdict on the ground that the complaint and the opening described damages arising out of conduct, viz., that the defendant sexually assaulted the plaintiff and intentionally kicked her down the stairs, for which the defendant's homeowner's insurance policy did not provide coverage. Specifically, the policy disclaimed personal liability for "bodily injury ... which is either expected or intended from the standpoint of the insured." In response to an inquiry by the judge whether Terrio waived her right to amend her complaint to include a claim for injuries resulting from a negligent act of McDonough, in addition to the claim based on his deliberate act, Terrio's counsel said she did waive that right. Her position was resolute that the fall was not accidental, but the result of a purposeful push. Responding to a further question, Terrio's counsel said that so far as she knew the plaintiff was not going to adduce any evidence which would warrant recovery on a negligence theory. ²

An insurance company's obligation to defend against a liability claim is determined by the allegations in the complaint. Fessenden School, Inc. v. American Mut. Liab. Ins. Co., 289 Mass. 124, 130, 193 N.E. 558 (1935). Vappi & Co. v. Aetna Cas. & Sur. Co., 348 Mass. 427, 430, 204 N.E.2d 273 (1965). Massachusetts Turnpike Authy. v. Perini Corp., 349 Mass. 448, 457, 208 N.E.2d 807 (1965). Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 604, 373 N.E.2d 966 (1978). Compare Magoun v. Liberty Mut. Ins. Co., 346 Mass. 677, 681, 195 N.E.2d 514 (1964). The defendant suggests this line of cases ought not to survive the advent of modern pleading. The argument runs thus: if only a "short and plain statement" is required, Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974); if the complaint can be liberally amended, Mass.R.Civ.P. 15(a), 365 Mass. 761; and the pleadings do not limit the theory of recovery in any event, Mass.R.Civ.P. 15(b), 365 Mass. 761, then an insurer must anticipate that, during the course of trial, the case may undergo a metamorphosis which will bring it within the coverage of the policy. This is especially so, McDonough contends, when a third-party complaint brings to the insurer's attention the issue of negligence.

Were McDonough's argument unconditionally accepted, an insurer would infallibly be bound to defend an insured no matter what the plaintiff's allegations. Although amendments to pleadings are liberally permitted, Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 761, 384 N.E.2d 176 (1978), Geraghty v. Mott's Shop-Rite of Holyoke, Inc., 377 Mass. 911, 386 N.E.2d 1041 (1979), Wolfe v. Ford Motor Co., 6 Mass.App. 346, 354-355, 376 N.E.2d 143 (1978), the right to amend a complaint is not automatic. Castellucci v. U.S. Fid. & Guar. Co., 372 Mass. 288, 291-292, 361 N.E.2d 1264 (1977). Genesco, Inc. v. Koufman, 11 Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 718, 722, 418 N.E.2d 625. Parkman Equip. Corp. v. SAS Equip. Co., 14 Mass.App. 938, 939-941, 437 N.E.2d 256 (1982). In a case such as the one before us, in which the plaintiff expressly disavowed a negligence theory after inquiry by the court and introduced no evidence of negligence, the prospects for a late amendment of the complaint to a negligence theory were, to put it charitably, distant.

Courts operating under notice pleading have generally determined that there is no duty to defend unless facts alleged in the complaint, or known or readily knowable by the insurer, place liability within the coverage of the policy. McGettrick v. Fidelity & Cas. Co. of New York, 264 F.2d 883, 886 (2d Cir.1959). Hagen Supply Corp. v. Iowa Natl. Mut. Ins. Co., 331 F.2d 199, 203-204 (8th Cir.1964). C. Raymond Davis & Sons v. Liberty Mut. Ins. Co., 467 F.Supp. 17, 19 (E.D.Pa.1979). Healy Tibbitts Constr. Co. v. Foremost Ins. Co., 482 F.Supp. 830, 837 (N.D.Cal.1979). Crum v. Anchor Cas. Co., 264 Minn. 378, 119 N.W.2d 703 (1963). See generally, 14 Couch, Cyclopedia of Insurance Law § 51.45 at 479 & n. 7 (2d ed. 1982); 7C Appleman, Insurance Law and Practice § 4685.09 (rev. ed. 1979); Annot., 2 A.L.R.3d 1238, 1249 (1965). McGettrick v. Fidelity & Cas. Co. of New York, supra, is instructive. There a barroom customer alleged a battery and the defendant answered that any touching of the customer was in self-defense. The court considered the purpose of the insurance policy (to protect the barroom against expected business risks) and that reasonable investigation would have established the likelihood of the defense asserted. There the difference between a covered and excluded occurrence was a close call. When, as in the instant case, the allegations lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate. Harbin v. Assurance Co. of America, 308 F.2d 748, 749-750 (10 Cir.1962). The court in Harbin notes the conflict of interest created for an insurer if it is obliged to defend a case outside the scope of the policy. In the case at bar, for example, the insurer would have an interest in proving that McDonough had pushed Terrio. Compare J. D'Amico, Inc. v. Boston, 345 Mass. 218, 227, 186 N.E.2d 716 (1962), and Magoun v. Liberty Mut. Ins. Co., 346 Mass. at 684, 195 N.E.2d 514, which observe that the insurer may be responsible for the cost of both its own defense and a separate defense for the insured where there is a potential conflict of interest.

We conclude that the adoption of notice pleading and liberal rights to amend pleadings have not altered the principle that an insurer has no obligation to defend when the allegations of a complaint describe with precision intentional conduct of a defendant which the insurance policy expressly excludes from coverage. A note of caution is in order. In cases where the disclaimer by the plaintiff of an act covered by insurance is less unambiguous, should a trial subsequently establish that the facts were other than first pleaded, i.e., that the occurrence was covered by the policy, and should an amendment of the complaint be allowed, the insurer would be bound to indemnify the insured for the damages recovered against him and for...