Worcester Ins. Co. v. Fells Acres Day School, Inc.

Citation408 Mass. 393,558 N.E.2d 958
PartiesWORCESTER INSURANCE COMPANY v. FELLS ACRES DAY SCHOOL, INC., et al. 1 (and ten consolidated cases).
Decision Date22 August 1990
CourtUnited States State Supreme Judicial Court of Massachusetts

Cynthia J. Cohen, Boston, for Worcester Ins. Co.

Regina E. Roman, Boston, for Merrimack Mut. Ins. Co.

Saul A. Schapiro (Michael Hays, Boston, with him), for Jane Doe, et al.

Daniel C. Crane, Cambridge, for Paul A. Bennett, et al.

Juliane Balliro, for Fells Acres Day School, Inc., Ronald A. Pressman, for Lareina Hurley, Leonard Glazer & William Kahn, for William B. Cronin et al., & Frank J. Ciano, for Barbara Miller, et al., were present but did not argue.

Present: LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

Pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), a judge of the Superior Court has reported to us, without decision, eight questions (see Appendix) concerning whether certain insurance policies provide coverage for damage claims arising from sexual abuse allegedly perpetrated at the Fells Acres Day School (school). Two of the eleven consolidated cases before us are declaratory judgment actions brought by insurance companies 2 seeking a judgment that the injuries sustained by the tort plaintiffs in the nine underlying tort actions are not covered by various policies of insurance. The other nine cases are the underlying tort actions, brought by parents individually and as next friends of their children, against one or more of the tort defendants, seeking damages incurred as a result of sexual abuse that the children are alleged to have suffered while they were attending the school. We allowed the insurance companies' joint application for direct appellate review.

The parties' stipulation of agreed facts is substantially as follows. Fells Acres Day School, Inc. (Fells Acres), is a duly organized, for-profit Massachusetts corporation that operated the school, a group daycare facility. The school enrolled as many as 48 children, ranging in age from fifteen months to five years. At all relevant times, the directors, officers, and shareholders of Fells Acres were Violet Amirault (Violet), Gerald Amirault (Gerald), and Cheryl Amirault LeFave (Cheryl). Fells Acres employed up to seven staff members in addition to Violet, Gerald, and Cheryl. It maintained books and accounts as a corporation, paid Federal and State taxes and F.I.C.A. contributions as a corporation, maintained a corporate checking account from which expenses were paid, and filed annual reports of condition with the Office of the State Secretary.

Violet was the holder of a license to operate the school, issued by the Office for Children of the Commonwealth of Massachusetts. Operation of the school was subject to regulations promulgated by the Office for Children, 102 Code Mass.Regs. § 7.00 (1987). At all relevant times, Violet was a salaried employee of Fells Acres, holding the title of "director" of the school. As such, pursuant to Office for Children regulations, Violet was responsible for staff supervision and training. Gerald, Violet's son, was a salaried employee of Fells Acres, employed as the school's "program coordinator." For at least one year before the revocation of Violet's license to operate the school and the school's closing in 1984, Gerald also held the title "assistant director." Gerald was responsible for setting up and monitoring programs at the school and for assisting Violet in the administration of the school's programs. Cheryl, Violet's daughter, also was a salaried employee of Fells Acres, employed as an "assistant director" and a teacher. Cheryl was responsible for assisting Violet in the administration of the school's programs. Cheryl's husband, Albert LeFave (Albert), was not employed by Fells Acres.

In 1980, the Worcester Insurance Company (Worcester) issued to Fells Acres 3 a "Special Multi-Peril" (SMP) policy of insurance, containing both property and liability coverages, for the period from October, 1980, to October, 1983. In 1983, Worcester issued another SMP policy for the period from October, 1983, to October, 1986. Worcester also issued to Violet a homeowner's insurance policy for her residence in Malden, for the period from June, 1979, to June, 1982. In September, 1983, Merrimack Mutual Fire Insurance Company (Merrimack) issued to Cheryl and Albert a homeowner's policy for their residence in Melrose, for the period from September, 1983, to September, 1984.

The nine underlying tort actions seek damages from one or more of the following tort defendants: Fells Acres, Violet, Gerald, Cheryl, and Albert. The claims of the plaintiffs in the underlying tort actions are set forth in a Uniform Complaint and individual complaints that adopt parts of the Uniform Complaint. The Uniform Complaint alleges claims of assault and battery by the individual tort defendants; vicarious liability of Fells Acres; negligence of Violet, Gerald, Cheryl, and Fells Acres; and breach of warranty by Fells Acres. The facts underlying the tort complaints are the acts of sexual abuse that are alleged to have occurred while the child tort plaintiffs were attending and in the care of the school.

Some of these alleged acts of abuse formed the basis for criminal prosecutions against some of the tort defendants. Gerald was tried and convicted of rape and indecent assault and battery on six of the child tort plaintiffs. He also was convicted of indecent assault and battery on another of the child tort plaintiffs. 4 We affirmed those convictions. See Commonwealth v. Amirault, 404 Mass. 221, 535 N.E.2d 193 (1989). Violet was convicted of rape and indecent assault and battery on two of the child tort plaintiffs and convicted of indecent assault and battery on another child tort plaintiff. Cheryl was convicted of rape and indecent assault and battery on three of the child tort plaintiffs and convicted of indecent assault and battery on another of the child tort plaintiffs. We affirmed those convictions. Commonwealth v. LeFave, 407 Mass. 927, 556 N.E.2d 83 (1990). Some of the child tort plaintiffs allege acts of abuse for which the tort defendants were not tried. The tort defendants deny that they abused the children and deny that the children were sexually abused by anyone while the children were in attendance at or in the care of the school.

1. Assault and battery. The Uniform Complaint alleges that each of the four tort defendants "did assault the minor plaintiffs with great force, raped and sexually molested the minor plaintiffs." The insurance companies contend that, under the terms of any of the policies, there can be no coverage 5 for assault and battery of the child tort plaintiffs because the injuries were "expected or intended from the standpoint of the insured." 6 The tort plaintiffs contend that there is insufficient information in the record to permit any conclusion concerning the intent of the tort defendants and that the issue is a factual one to be determined at trial.

The parties' stipulation of facts includes an assertion that, at the trial of the declaratory judgment actions, the tort plaintiffs would seek to offer the opinion of a psychiatrist, Dr. Bernard Yudowitz, on the intent issue. 7 Dr. Yudowitz would testify that it is impossible to draw conclusions about the intent of a child abuser without extensive evaluation and testing and that child abusers act from a variety of motives. Dr. Yudowitz's research yields examples of the variety of sex abuse offenders, including "highly sociopathic individual[s]," "mentally deranged individual[s]," "sadistic individual[s]," individuals "who [have] never socially matured and can only have sexual intimacy with children," and several other types. Moreover, it is stipulated, Dr. Yudowitz's review of the Uniform Complaint convinces him that "it is impossible to state ... that the perpetrators in this case intended harm or injury." Dr. Yudowitz has not examined the tort defendants. The stipulation also states that "the tort defendants do not consent to be psychiatrically tested, evaluated, or diagnosed, nor do they consent to the release of any medical or other confidential records in connection with this case."

All of the insurance policies provide coverage for "occurrences," defined to include "accidents." Generally, an injury "which ensues from the volitional act of an insured is still an 'accident' within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur." Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84, 469 N.E.2d 797 (1984). In Quincy Mut. Fire, we applied this standard to a situation in which an insured intentionally threw a large piece of "blacktop" at an automobile, injuring its occupants. In concluding that the insurer was not entitled to summary judgment on the question whether the injuries to the automobile's occupants were accidental, we concluded that the injuries would be covered only if "the insured knew to a substantial certainty that the bodily injury would result." Id. at 86, 469 N.E.2d 797. The tort plaintiffs contend that, although the alleged acts of sexual abuse are intentional in nature, there is no basis to conclude that the tort defendants "knew to a substantial certainty" that injuries would result. We disagree.

Forceful sexual molestation and rape are unlike the defendant's actions in Quincy Mut. Fire. There, it was possible that the injuries resulting from the insured's intentional act were accidental. This case more closely resembles Newton v. Krasnigor, 404 Mass. 682, 536 N.E.2d 1078 (1989), in which we determined that the actions of an insured who intentionally started a fire in a building necessitated the inference that, "as matter of law, [the insured] intended to cause some property damage Y(4)27" Id. at 687, 536 N.E.2d 1078. In this case, as in Krasni...

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