Vt. Mut. Ins. Co. v. Francoeur
| Decision Date | 18 April 2017 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-14-22 |
| Parties | VERMONT MUTUAL INSURANCE COMPANY, Plaintiff v. JOSHUA FRANCOEUR, Defendant JONATHAN BEN-AMI, Party-in-interest |
| Court | Maine Superior Court |
YORK, SS.
Plaintiff Vermont Mutual Insurance Company ("Vermont Mutual") brings this action seeking a declaratory judgment that Joshua Francoeur is not covered by his father's insurance policy.1 The Court heard evidence at the trial of this matter and has carefully considered the written arguments.
On October 24, 2011, Joshua Francoeur ("Francoeur") hit Jonathan Ben-Ami ("Ben-Ami"). At the time of the incident, Francoeur and Ben-Ami were students at Thornton Academy in Saco. Francoeur and Ben-Ami had a verbal altercation at a Thornton Academy football game several days before the incident.
According to Francoeur, his friend Dylan pressured him to fight Ben-Ami. The Sunday before the incident, Dylan was trying to talk [Francoeur] into going to beat up Jon Ben-Ami.
On the morning of the incident, Francoeur left his class. He proceeded to the classroom where Ben-Ami was. When he reached the classroom, his intent was to walk in and hit [Ben-Ami]. The door to Ben-Ami's classroom was locked. Francoeur got the teacher, Jennifer Merry, to open the door to let him in. He then walked past Merry and approached Ben-Ami from behind. He then proceeded to punch Ben-Ami about the face multiple times.
Ben-Ami suffered serious injuries, including a broken jaw. Francoeur had never been involved in a physical fight with another prior to the incident. He was diagnosed with Attention Deficit Hyperactivity Disorder in the first or second grade.
The Vermont Mutual homeowner's insurance policy issued to Josh Francoeur's father Steven Francoeur defines an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. 'Bodily injury' or b. 'Property damage.'" The policy excludes from coverage bodily injury or property damage "[w]hich is expected or intended by the insured . . . ."
1. Josh Francoeur's Residence
Soon after Josh Francoeur was born, his mother and father divorced and have lived separately ever since. His mother, Lynn Johnson, has lived at 109A Pleasant Street in Saco, while his father, Steven Francoeur lived at 52 Berry Road in Saco. During adolescence, Josh split his time between his mother and father's home. Upon entering high school, Josh was given the choice of where he wished to live. At the end of freshman year, he moved from his mother's to his father's home, where he lived until January 2010. He moved back to his mother's home in January 2010 after an argument with his father. Josh left personal belongings at his father's home, including a stereo, bracelet, clothes, earrings, and shoes. From January 2010 until after the incident in October 2011, Josh never returned to his father's home to stay or visit. StevenFrancoeur told Josh he was not welcome back. Josh did not see his father at all in the seven months preceding the incident. Steven continued to pay child support in the amount of $120 per week for Josh's support.
The Vermont Mutual policy defines "insured" as "you and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above."
In review of the trial testimony the Court concludes that it is generally consistent with the affidavits that were presented on the motions for summary judgment. The Court found each of the witnesses who testified generally credible. The Court does conclude that Mr. Francoeur likely struck Mr. Ben-Ami multiple times in excess of the one to two times that he testified to at trial.
At the outset with respect to the issues of both residence and intended or expected injuries, the Court notes that there is little definitional assistance in the applicable insurance policy.
The meaning of unambiguous insurance contract language presents a question of law for the court. Brackett v. Middlesex Ins. Co., 486 A.2d 1188, 1189 (Me. 1985). Whether an insurance contract is ambiguous is similarly a question of law. Peerless Ins. Co. v. Brennon, 564 A.2d 383, 384 (Me. 1989). An ambiguity arises if the language is reasonably susceptible of different interpretations "or if any ordinary person in the shoes of the insured would not understand that the policy did not cover claims such as those brought." Pelkey v. GE Capital Assur. Co., 2002 ME 142, ¶ 10, 804 A.2d 385. Ambiguities are construed "strictly against the insurer and liberally in favor of the insured." Id.
As set forth above, the Vermont Mutual policy at issue limits coverage to the policyholder "and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above." The policy does not define "resident" or "household." In Count One, Vermont Mutual seeks a declaration that because Josh Francoeur was not a "resident" of Steven Francoeur's "household" at the time of the incident, he is not an "insured" within the meaning of the policy.
The Law Court has repeatedly held that the terms "household" and "residence" are ambiguous. The Court has emphasized whether an insured is a member of a household is a highly fact-specific inquiry: Dechert v. Maine Ins. Guar. Ass'n, 1998 ME 127, ¶ 9, 711 A.2d 1290; see also Cambridge Mut. Fire Ins. Co. v. Vallee, 687 A.2d 956, 957 (Me. 1996) ().
In Dechert, the Law Court set forth the following considerations to determine whether the party could be a resident of the household at issue: (1) subjective or declared intent when the claimant moved; (2) the nature of the claimant's tenancy; (3) claimant's belongings left; (4) the claimant's practice in regard to returning home; (5) whether the claimant retained a key; (6) the claimant's financial dependence on the primary policy holder. 1998 ME 127, ¶ 9, 711 A.2d 1290.
Consistent with its Motion for Summary Judgment Vermont Mutual argued at trial that Francoeur effectively abandoned his residency in his father's home. In particular, Vermont Mutual emphasizes (1) Francoeur left the home after the fight with his father, (2) as a result of the fight, Francoeur's departure and failure to return expressed his intention to leave and notreturn, (3) he lived continuously at his mother's for the following twenty-one months leading up to the incident, (4) he did not return to his father's residence at any time, (5) he did not speak to his father at all during the seven months leading up to the incident, and (6) he resided with his mother as of June 2014.
The Court concludes that Francoeur split his time between his mother's and father's home while he was growing up and was allowed a choice when he entered high school. He moved back and forth to both residences. Francoeur did move to his mother's home for twenty-one months after the fight with his father in January 2010, but he left a number of personal belongings behind, including a stereo, bracelet, clothes, earrings, and shoes. During this time, Steven Franceour continued to pay child support for his son's benefit and remained legally responsible for him.
Dechert establishes the rule that "[n]o one factor is, in itself, determinative; instead, each factor must be balanced and weighed with the others." 1998 ME 127, ¶ 9, 711 A.2d 1290. Weighing the facts in total the Court concludes that for purposes of this policy Josh Francoeur remained a resident of his father's household and thus covered under the policy.
Although there was a rift between Josh and his father at the time of his moving out, and it was clear that neither subjectively intended that Josh would be returning to the premises, the Court does not view that as determinative of the issue of whether or not he was a resident of his father's home for the purpose of insurance coverage.
In evaluating the Dechert factors the Court is persuaded that an objectively reasonable policyholder, such as Mr. Franceour would have considered his son to have been covered by the policy as a resident of his household. The Court is persuaded by the following facts. Steven Franceour was the father of Joshua Franceour, and as such had a lawful obligation to providesupport to him. He had purchased the policy and renewed it several times when his son had alternatively lived between his father's and his mother's house. An objective policyholder would likely have concluded that his son who had the lawful right to reside with him and had done so in the past would have been covered by this insurance policy. Clearly the language in this policy would not allow an objectively reasonable policyholder to believe that coverage would be dependent upon the whims of a teenager who was alternatively deciding to live with either his mother or his father during the course of his minority. The fact that it appeared that this rift was likely going to be permanent, because of the serious nature of the dispute, does not outweigh these considerations.
Vermont Mutual next argues that there is no coverage because the incident was not an "occurrence" within the meaning of the policy. The policy defines an "occurrence" as "an accident."
Vermont Mutual concedes that "the 'accidental' nature of an event for purposes of a standard liability insurance contract . . . does not derive from the voluntariness of the act, but rather from the unintentional nature of the consequences flowing from the act." Me. Mut. Fire Ins. Co. v. Gervais, 1998 ME 197, ¶ 10, 715 A.2d 938 (...
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