In Dorchester Mutual Insurance Co. v. Miville, the Supreme Court of Massachusetts discussed the basis for its reversal of the Superior Court’s grant of summary judgment in favor of Dorchester Mutual based on its interpretation of what constitutes “physical abuse” in the context of an abuse and molestation exclusion as it applies to the insured’s unprovoked attack on an individual.

The facts regarding the unprovoked attack by the insured, William Brengle, on Leonard Miville are undisputed. After a short verbal exchange between Brengle and Miville, Brengle left his porch and attacked Miville on the sidewalk. Brengle punched Miville in the face and kicked him repeatedly, causing Miville to lose consciousness and suffer serious injuries.

After the attack, Miville sent a claim letter to Dorchester Mutual seeking coverage for his sustained injuries under the homeowners insurance policy of Brengle’s parents. Dorchester Mutual denied coverage based on an abuse and molestation exclusion, taking the position that Brengle’s conduct constituted “physical abuse.”

The policy provided personal liability coverage for claims “brought against an ‘insured’ for damages because of ‘bodily injury’ caused by an ‘occurrence’ to which this coverage applies.” However, the policy contained multiple exclusions from personal liability coverage, including the abuse and molestation exclusion, which excluded coverage for “bodily injury … arising out of sexual molestation, corporal punishment or physical or mental abuse.” Notably, “physical abuse” was not defined in the policy.

After Dorchester Mutual denied coverage, Miville commenced an action against Brengle and his parents, asserting claims of negligence and assault and battery against Brengle and negligent supervision claims against Brengle’s parents. In turn, Dorchester Mutual commenced an action seeking a judgment that Brengle’s conduct constituted “physical abuse” under the terms of its policy’s abuse and molestation exclusion and, therefore, it had no duty to defend or indemnify Brengle or his parents for the personal injury claims asserted by Miville. The lower court ruled in favor of Dorchester Mutual but was reversed by the Appeals Court, and the action was appealed to the Supreme Judicial Court.

Tasked with answering the question whether, under the terms of a homeowners insurance policy, certain conduct by an insured qualifies as “physical abuse” to preclude coverage under an abuse and molestation policy exclusion, the Supreme Judicial Court found itself on familiar ground.

In Dorchester Mutual Insurance Co. v. Krusell, the court encountered an identical abuse and molestation exclusion asserted to preclude coverage for conduct that involved a single push by the insured. In Krusell, the court first interpreted whether the words “physical abuse,” as used in the policy, were ambiguous. After concluding that the term “physical abuse” was ambiguous due to varying potential meanings, the court considered the insured’s reasonable expectations as to coverage by looking specifically at the language of the policy, the history of abuse and molestation exclusions, and cases, statutes, and regulations where conduct had or had not been characterized as “abuse.” After its thorough review, the court concluded in Krusell that “a reasonable insured would interpret ‘physical abuse’ to apply only to a limited subset of physically harmful treatment, where the treatment is characterized by an ‘abusive’ quality such as a misuse of power or, perhaps, conduct so extreme as to indicate an abuser’ disposition towards inflicting pain and suffering.”

In Miville, both parties agreed that because the policy lacked a definition for “physical abuse,” the court’s conclusion in Krusell would control how a reasonable insured would interpret “physical abuse” within the meaning of the abuse and molestation exclusion. However, the parties disagreed on the application of that interpretation as it related to the facts.

Miville argued that the incident was not “physical abuse” because of a lack of power imbalance between Brengle and himself. Further, Miville argued that the incident was not “so extreme” as to reflect Brengle’s disposition to inflict pain and suffering.

In response, Dorchester Mutual argued that the incident demonstrated both “abusive” qualities mentioned in Krusell. Specifically, Dorchester Mutual contended that due to the 31-year age gap between Brengle and Miville, coupled with Miville’s “advancing years” at age 61, a physical power imbalance was present, which rendered Brengle’s attack “physical abuse” under the policy exclusion. In addition, Dorchester Mutual argued that the incident was both violent and unprovoked, further demonstrating that Brengle’s disposition to inflict pain and suffering could be inferred from his conduct.

The court found Dorchester Mutual’s argument “unavailing” because of its prior holding that no “misuse of power existed” in Krusell, which involved a “starker” 39-year age gap between the insured and the victim. In denying Dorchester Mutual’s motion, the court acknowledged that although Brengle’s attack was “unprovoked” and “inexplicable,” it ultimately did not comprise exploitation or misuse of power.

The court further reasoned that a broad interpretation of “physical abuse” seemingly would encompass accidental conduct causing physical harm, which would undermine the basic purpose of purchasing a homeowners insurance policy. Ultimately, the court found that the most persuasive factor for interpreting misuse of power is the location of the term “physical abuse” within the policy. The court explained that immediately preceding the term “physical abuse” in the abuse and molestation exclusion are the terms “sexual molestation” and “corporal punishment” and that both of those forms of conduct generally involve an imbalance or exploitation of power between the perpetrator and the victim. Thus, while the term “physical abuse” divorced from this context may be susceptible to multiple interpretations, its meaning in this policy is limited by the terms it accompanies.

The court ultimately held that “for conduct to constitute “physical abuse” as a reasonable insured would understand the term when reading the language of the abuse and molestation exclusion and the policy as a whole, the conduct must involve an imbalance or misuse of power in addition to being physically harmful.” Thus, the court reversed the Superior Court’s grant of summary judgment in favor of Dorchester Mutual on the basis that Brengle’s attack on Miville was not “physical abuse” within the meaning of the abuse and molestation exclusion.