Dorchester Mutual Insurance Company v. Miville

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13308
DORCHESTER MUTUAL INSURANCE COMPANY vs. LEONARD MIVILLE &
others.1
Norfolk. January 4, 2023. – March 16, 2023.
Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt,
& Georges, JJ.
Insurance, Homeowner's insurance, Construction of policy,
Insurer's obligation to defend, Coverage. Declaratory
Relief. Words, "Physical abuse."
Civil action commenced in the Superior Court Department on
June 19, 2017.
The case was heard by Rosemary Connolly, J., on a motion
for summary judgment.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Ryan P. Gilday for Leonard Miville.
John P. Graceffa (Lawrence M. Slotnick also present) for
the plaintiff.
1 Kim Brengle, Laurence Brengle, and William Brengle.
2
LOWY, J. Once again, we are presented with the question
whether, under the terms of a homeowners' insurance policy,
certain conduct by an insured constitutes "physical abuse"
thereby precluding coverage under a policy exclusion exempting
coverage for "[b]odily injury . . . arising out of sexual
molestation, corporal punishment or physical or mental abuse."
In Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 439-440
(2020) (Krusell), we concluded that the term "physical abuse" as
used in an identical policy exclusion -- commonly referred to as
the abuse and molestation exclusion -- was ambiguous.
Interpreting the exclusion through the lens of an objectively
reasonable insured, we concluded that "physical abuse" applies
"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's disposition towards inflicting pain and suffering."
Id. at 446. Because the conduct in that case –- a single push
by the insured –- contained no such "abusive" quality, we held
that the abuse and molestation exclusion did not preclude
coverage. Id.In this case, the insured, William Brengle, initiated an
unprovoked attack on Leonard Miville by punching him in the head
and repeatedly kicking him after he had fallen, causing Miville
to sustain serious injuries. In this action for declaratory
3
relief, Dorchester Mutual Insurance Company (Dorchester Mutual)
filed a motion for summary judgment arguing that, under the
terms of a homeowners' insurance policy it issued to Brengle's
parents, the abuse and molestation exclusion exempted coverage
for claims arising out of the incident because the conduct
constituted "physical abuse" under our holding in Krusell, 485
Mass. at 446. A judge in the Superior Court agreed and granted
summary judgment in favor of Dorchester Mutual.
We conclude that the term "physical abuse," in the context
of the abuse and molestation exclusion, requires an imbalance or
misuse of power attendant to the physically harmful conduct.
Because the attack here was not achieved by capitalizing on or
exploiting an imbalance of power, it does not fall within the
meaning of "physical abuse" as it is used in the abuse and
molestation exclusion. Therefore, the abuse and molestation
exclusion does not exempt coverage in these circumstances, and
the summary judgment in favor of Dorchester Mutual on this basis
is reversed.
Background. 1. Underlying incident. The following facts
are undisputed. At approximately 5:45 A.M. on November 22,
2016, Miville, age sixty-one, parked his truck outside the home
of his girlfriend, Jennifer Barrett, to drive her to work. When
Barrett did not answer her telephone, Miville got out of his
truck and walked to her front door. Brengle, age thirty, lived
4
with his parents in the home next to Barrett's and was outside
on his front porch when Miville arrived. After receiving no
response when he knocked on Barrett's front door, Miville stood
on the sidewalk between the two homes looking up to Barrett's
bedroom window. Brengle stood on the side of his porch and
yelled at Miville, "F you, what are you doing here?" Miville
responded that he was Barrett's boyfriend and that he and
Brengle had met previously. Brengle, however, continued yelling
at Miville, ordering him to leave the area and calling him evil.
Miville told Brengle to "keep it down" so he would not wake
the neighbors. Suddenly, Brengle jumped off the porch and
punched Miville in the "left eye and cheek." Miville fell to
the ground, hitting his head on the sidewalk. Brengle proceeded
to kick Miville in the jaw, clavicle, and leg. Miville recalled
asking Brengle to stop, but at some point, he lost consciousness
and next remembered awaking to the police asking him questions.
Miville sustained serious injuries, including a fractured
cheek and orbital bone. Brengle was charged with assault and
battery on a person sixty years of age or older, and assault and
battery by means of a dangerous weapon (shod foot) on a person
age sixty or older; he later pleaded guilty to those charges.
2. The policy. Dorchester Mutual issued a homeowners'
insurance policy to Brengle's parents for the period of April
25, 2016, through April 25, 2017. The policy provided personal
5
liability coverage for claims "brought against an 'insured' for
damages because of 'bodily injury' or 'property damage' caused
by an 'occurrence' to which this coverage applies." "Insured"
is defined by the policy as the policyholders and the "residents
of [the policyholders'] household who are . . . relatives."2
"Occurrence" is defined as "an accident, . . . which results,
during the policy period, in: . . . '[b]odily injury.'"
The policy contained multiple exclusions from personal
liability coverage, including the abuse and molestation
exclusion, which excluded coverage for "'[b]odily injury' . . .
arising out of sexual molestation, corporal punishment or
physical or mental abuse." "Physical abuse" is not defined in
the policy.
3. Prior proceedings. After the incident, Miville sent a
claim letter to Dorchester Mutual seeking coverage under
Brengle's parents' homeowners' insurance policy for the injuries
he sustained. Dorchester Mutual denied coverage. Thereafter,
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.
2 It is undisputed that Brengle was an insured under the
policy.
6
Dorchester Mutual commenced this action seeking a judgment
declaring that, under the terms of the policy, it had no duty to
defend or indemnify Brengle or his parents for the personal
injury claims brought against them by Miville.3 Dorchester
Mutual filed the present motion for summary judgment, asserting
that Brengle's conduct constituted "physical abuse" under the
terms of the abuse and molestation exclusion. Thus, Dorchester
Mutual argued, Miville's injuries were not covered by the
policy, and it had no duty to defend or indemnify Brengle or his
parents. The judge agreed and granted judgment in Dorchester
Mutual's favor. Miville appealed.
In an unpublished memorandum and order pursuant to its rule
23.0, a panel of the Appeals Court reversed, concluding that the
incident did not amount to "physical abuse" under Krusell, 485
Mass. at 446, because it lacked the necessary "'abusive'
quality" and, therefore, fell outside the policy exclusion. See
Dorchester Mut. Ins. Co. v. Brengle, 100 Mass. App. Ct. 11333 Dorchester Mutual's original complaint sought a
declaration that coverage was barred for the claims against
Brengle under two policy exclusions: (1) the intentional acts
exclusion and (2) the abuse and molestation exclusion.
Dorchester Mutual subsequently amended its complaint to include
Brengle's parents as defendants. The amended complaint sought a
declaration that coverage was precluded for the claims against
Brengle's parents under the abuse and molestation exclusion. On
summary judgment, only the abuse and molestation exclusion was
at issue. We therefore express no opinion in this appeal on the
applicability of the intentional acts exclusion to Miville's
claims against Brengle.
7
(2022). We allowed Dorchester Mutual's application for further
appellate review.
Discussion. 1. Standard of review. "The standard of
review of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to judgment as a matter of law." Krusell, 485 Mass. at
435, quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991). "We review decisions allowing summary judgment
de novo." Krusell, supra.
2. Interpretation of insurance policies. "The
interpretation of an insurance policy is a question of law."
City Fuel Corp. v. National Fire Ins. Co. of Hartford, 446 Mass.
638, 640 (2006). "Like all contracts, an insurance policy is to
be construed according to the fair and reasonable meaning of its
words." Id. We consider the language of an insurance policy as
a whole, "without according special emphasis to any particular
part over another," Surabian Realty Co. v. NGM Ins. Co., 462
Mass. 715, 718 (2012), and where possible, giving meaning and
effect to every word, see Masonic Temple Ass'n of Quincy v.
Patel, 489 Mass. 549, 554 (2022) (Patel).
"If free from ambiguity, an exclusionary clause, like all
other provisions of an insurance contract, must be given its
usual and ordinary meaning." Hakim v. Massachusetts Insurers'
8
Insolvency Fund, 424 Mass. 275, 281 (1997). However, "[a]ny
ambiguities in the language of an insurance contract are
interpreted against the insurer who used them and in favor of
the insured." Allmerica Fin. Corp. v. Certain Underwriters at
Lloyd's, London, 449 Mass. 621, 628 (2007). "This rule of
construction applies with particular force to exclusionary
provisions." Id., quoting Hakim, supra at 282.
While "[a]n insured bears the initial burden of proving
that the claimed loss falls within the coverage of the insurance
policy," once that burden has been met, "the burden then shifts
to the insurer to show that a separate exclusion to coverage is
applicable to the particular circumstances of the case."
Boazova v. Safety Ins. Co., 462 Mass. 346, 351 (2012). "When in
doubt as to the proper meaning of a term in an insurance policy,
we 'consider what an objectively reasonable insured, reading the
relevant policy language, would expect to be covered.'"
Krusell, 485 Mass. at 437, quoting Metropolitan Prop. & Cas.
Ins. Co. v. Morrison, 460 Mass. 352, 362 (2011).
3. Interpretation of "physical abuse" in abuse and
molestation exclusion. In Krusell, 485 Mass. at 432-433, we
were called to interpret the term "physical abuse," in an
identical abuse and molestation exclusion, to determine whether
the exclusion precluded coverage where a twenty-three year old
9
insured pushed a sixty-two year old man, causing the latter to
fall and sustain serious, permanent injuries.
Guided by our principles of interpretation, we first
considered whether the words "physical abuse," as used together
in the policy, were ambiguous. Although it was clear that the
term "physical" referred to "of or pertaining to the body,"
Krusell, 485 Mass. at 438, quoting Webster's New Universal
Unabridged Dictionary 1461 (2003), the plain meaning of "abuse,"
and varying courts' interpretations of the term, revealed that
it was susceptible to two diverging meanings: the first,
connoting "any conduct whatsoever that causes physical harm,"
and the second, contemplating "a subset of physically harmful
conduct characterized by an 'abusive' quality, such as an
imbalance of power." Krusell, supra at 439. See Citation Ins.
Co. v. Gomez, 426 Mass. 379, 381 (1998) ("A term is ambiguous
only if it is susceptible of more than one meaning and
reasonably intelligent persons would differ as to which meaning
is the proper one").
Concluding that the term "physical abuse" was ambiguous, we
turned to the insured's reasonable expectations as to coverage,
looking specifically to the language of the policy, the history
of abuse and molestation exclusions, and cases, statutes, and
regulations in which conduct had or had not been characterized
as "abuse." Krusell, 485 Mass. at 440-446. These sources led
10
us to conclude 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's disposition towards
inflicting pain and suffering." Id. at 446.
In this case, both parties agree that, because "physical
abuse" is not defined by the policy, our conclusion in Krusell,
485 Mass. at 446, as to how a reasonable insured would interpret
"physical abuse" within the meaning of the abuse and molestation
exclusion controls. They disagree on the application of that
interpretation to these facts.
Miville argues that the incident here was not "physical
abuse" because there was no power imbalance between Brengle and
himself, and the incident was not "so extreme" as to reflect
Brengle's disposition to inflict pain and suffering. Krusell,
485 Mass. at 446. Dorchester Mutual, however, contends that the
incident possessed both "abusive" qualities mentioned in
Krusell, supra. Specifically, Dorchester Mutual maintains that,
because Brengle was thirty years old and Miville was over sixty
years old at the time of the incident, this age difference
coupled with Miville's "advancing years" demonstrated a physical
power imbalance between the two. Additionally, Dorchester
Mutual argues that the incident was both violent and unprovoked,
11
such that Brengle's disposition to inflict pain and suffering
can be inferred from his conduct.
a. Policy language. In Krusell, 485 Mass. at 440-446, we
considered an imbalance or misuse of power to be the
distinguishing feature that transforms physically harmful
conduct to "physical abuse." Beginning with the language of the
policy, we reasoned that an interpretation of "physical abuse"
as any physically harmful conduct, as opposed to conduct with an
abusive quality like a misuse of power, would render superfluous
the terms "sexual molestation" and "corporal punishment," as
both are forms of physically harmful conduct. Id. at 440. See
Patel, 489 Mass. at 554 ("if possible, 'every word in a policy
should be given meaning'" [citation omitted]). Moreover, we
observed 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. See Krusell, supra. See also
Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986)
("Clearly, the manifest design of homeowners' insurance is to
protect homeowners from risks associated with the home and
activities related to the home").
Most persuasive of an interpretation requiring an element
of power, however, is the term's location within the policy --
the primary source from which a reasonable insured would glean
12
its meaning. Immediately preceding the term "physical abuse" in
the abuse and molestation exclusion are the terms "sexual
molestation" and "corporal punishment." As we observed,
"[w]ords are, at least in part, defined by the company they
keep." Krusell, 485 Mass. at 440. Although "sexual
molestation" and "corporal punishment" are not defined by the
policy, both forms of conduct generally involve an imbalance or
exploitation of power between the perpetrator and the victim.
See Black's Law Dictionary 1204 (11th ed. 2019) (defining
"molestation" as "[t]he act of making unwanted and indecent
advances to or on someone, esp[ecially] for sexual
gratification"); Webster's Third New International Dictionary
510 (2002) (defining "corporal punishment" as "punishment
administered by an adult [as a parent or a teacher] to the body
of a child ranging in severity from a slap to a spanking"). See
also Commonwealth v. Dorvil, 472 Mass. 1, 9, 10 n.3 (2015)
(discussing corporal punishment in context of parent physically
disciplining child); Commonwealth v. Helfant, 398 Mass. 214, 227
(1986) ("sexual molestation" where doctor entered homes of young
patients, injected them with Valium, and sexually assaulted them
while they were "physically and mentally unable to express
resistance").
While the term "physical abuse" divorced from context may
be susceptible to multiple interpretations, under the
13
interpretive principle of noscitur a sociis, its meaning in the
policy is limited by the terms it accompanies.4 See People for
the Ethical Treatment of Animals, Inc. v. Department of Agric.
Resources, 477 Mass. 280, 287 (2017), quoting Commonwealth v.
Hamilton, 459 Mass. 422, 432 (2011) ("the canon of noscitur a
sociis . . . counsels that 'ordinarily the coupling of words
denotes an intention that they should be understood in the same
general sense'"); Commonwealth v. Gallant, 453 Mass. 535, 542
(2009), quoting H.J. Alperin & L.D. Shubow, Summary of Basic Law
§ 19.10, at 846 (3d ed. 1996) ("The principle of noscitur a
sociis . . . suggests 'that a word gains meaning from others
with which it is associated'"); Cluff v. Mutual Benefit Life
Ins. Co., 13 Allen 308, 316 (1866), S.C., 99 Mass. 317 (1868)
(applying maxim of noscitur a sociis to interpretation of
insurance policy). Thus, looking solely at the language of the
policy, it appears evident that "physical abuse," like "sexual
molestation" and "corporal punishment," refers to conduct
achieved by capitalizing on or exploiting an imbalance of power.
4 Noscitur a sociis means "it is known by its associates"
(citation omitted). People for the Ethical Treatment of
Animals, Inc. v. Department of Agric. Resources, 477 Mass. 280,
287 (2017). This canon of construction is a broader formulation
of the canon of ejusdem generis, which means "of the same kind
or class" (citation omitted). Id. See Commonwealth v. Gallant,
453 Mass. 535, 542 (2009).
14
b. History of abuse and molestation exclusion. This more
narrow interpretation of physical abuse requiring a power
element is supported further by the context in which the abuse
and molestation exclusion originated. In the early 1980s, a
surge of sexual abuse claims arose against clergy members within
the Roman Catholic Church. See Bartley, The Liability Insurance
Regulation of Religious Institutions After the Catholic Church
Sexual Abuse Scandal, 16 Conn. Ins. L.J. 505, 505-510 (2010).
Litigation surrounding insurance coverage for these and other
similar claims soon erupted. See id. at 517-529. See also
Swisher & Mason, Liability Insurance Coverage for Clergy Sexual
Abuse Claims, 17 Conn. Ins. L.J. 355, 360, 368-375 (2010). A
majority of States, including Massachusetts, determined that
sexual abuse claims brought against an accused abuser were not
covered by the terms of an accused's liability policy that
excluded coverage for expected or intended bodily injury. See
Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393,
398 n.6, 401-403 (1990), and cases cited ("intent to injure may
be inferred from the intentional commission of an inherently
injurious act such as forcible sexual abuse").
Many victims, then, also sought recovery from the
organizations responsible for employing or supervising those
accused of sexual abuse under theories of negligent supervision
or negligent hiring. See Krusell, 485 Mass. at 441, citing
15
Bartley, 16 Conn. Ins. L.J., at 517-518, 530. "Because the
basis for such claims was the negligent conduct of a third
party, rather than the intentional conduct of the alleged
abuser, existing policy exclusions for intentional acts were
insufficient to shield insurers from coverage obligations."
Krusell, supra. It was against this backdrop that insurance
companies included abuse and molestation exclusions in their
policies.
In 1987, the Insurance Services Office, Inc., promulgated
the abuse and molestation exclusion as a form endorsement for
insurers to include in their general liability policies as a
means to preclude coverage for all claims arising out of abuse
or molestation. See Valley Forge Ins. Co. v. Field, 670 F.3d
93, 97 (1st Cir. 2012). The exclusion was to be "used with
'[o]rganizations that have care or custody of others -- schools,
hospitals, nursing homes, day care centers, etc.'" Id., quoting
Harper vs. Gulf Ins. Co., U.S. Dist. Ct., No. 01-CV-201-J (D.
Wyo. Dec. 20, 2002). See D.S. Malecki & D.D. Thamann,
Commercial General Liability Coverage Guide 203 (11th ed. 2015)
("This [abuse and molestation exclusion] endorsement is utilized
by underwriters in those instances where the possibility of
abuse and molestation is relatively high, such as day care
centers, pre-school institutions, juvenile centers, and
municipalities"). Relying on the abuse and molestation
16
exclusion, insurers repeatedly and successfully have fended off
claims from "medical or therapeutic care providers, health care
centers, summer camps, schools and preschools, job training
programs, churches, and the like" facing allegations of
negligence in allowing those in their care, custody, or control
to have been abused or molested. Valley Forge Ins. Co., supra
at 98, and cases cited.
In sum, the origin of the abuse and molestation exclusion
is particularly telling. In adopting this exclusion, insurers'
"rationale was to shield themselves from liability for abuse or
molestation claims where they unexpectedly could not rely upon
the intentional acts exclusion to preclude coverage" due to
theories by which these claims were brought as a result of the
institutional nature in which they arose.5 Krusell, 485 Mass. at
443.
c. Cases, statutes, and regulations. Our review of cases,
statutes, and regulations in Krusell, 485 Mass. 443-446, also
In Krusell, we also noted a second set of circumstances in
5
which the abuse and molestation exclusion is often relied on by
insurers due to the inadequacy of the intentional acts
exclusion: specifically, "where a claim generally would be
brought directly against an abuser, but the abuser is deemed
incapable of intentional conduct by virtue of a mental disease
or defect." Krusell, 485 Mass. at 441-442. "Even though,
ordinarily, abuse is intentional conduct, in such a situation
the abuser's inability to act with intent renders the
intentional acts exclusion inapplicable." Id. at 442. Again,
we do not address the applicability of the intentional acts
exclusion to the conduct in this case. See note 2, supra.
17
demonstrated that an element of power was key to physical abuse.
We specifically noted that cases where insurers successfully
have relied on the abuse and molestation exclusion to exempt
coverage for "'physical abuse' generally involve[d] more than
mere physical harm."6 Id. at 443 & 445 n.23. By contrast, cases
where the exclusion did not exempt coverage distinguished
violent conduct lacking an exploitation of power from "physical
abuse." Id. at 444. See, e.g., Riley v. Maison Orleans II,
Inc., 829 So. 2d 479, 491 (La. Ct. App. 2002) ("Physical abuse,
as opposed to simple assault, is generally the act of a person
6 Although, in Krusell, we relied on Merrimack Mut. Fire
Ins. Co. v. Ramsey, 117 Conn. App. 769, 772-773 (2009), and
Miglino v. Universal Prop. & Cas. Ins. Co., 174 So. 3d 479, 481-
482 (Fla. Dist. Ct. App. 2015), as example cases where the
conduct constituted "physical abuse" because the claims involved
domestic violence, which we noted "often involves an imbalance
of power," Krusell, 485 Mass. at 443-444, upon reflection, it is
not clear that the conduct in those cases would fall within the
interpretation we afford the term "physical abuse," as it is
properly understood within the meaning of the abuse and
molestation exclusion. Rather, it appears that both
jurisdictions interpret "physical abuse" more broadly than we
do. Indeed, we specifically recognized in Krusell, supra at
439, that, contrary to our interpretation of the term, the court
in Miglino, supra at 481, considered "physical abuse" to be any
"physical . . . maltreatment." Further, in Merrimack Mut. Fire
Ins. Co., supra at 773, the court's conclusion that the stabbing
between romantic partners "clearly constituted physical abuse
within the language of the policy" focused on the conduct
involved, and not the imbalance of power. And, as discussed
infra, the Appellate Court of Connecticut later concluded in
General Ins. Co. of Am. v. Okeke, 182 Conn. App. 83, 99, 101-103
(2018), that a fifteen year old's act of stabbing his elderly
neighbor was "physical abuse" within the meaning of the abuse
and molestation exclusion, treating Merrimack Mut. Fire Ins.
Co., as dispositive.
18
in control, dominance, or authority who misuses his [or her]
position to harm or mistreat a person over whom he [or she]
exercises such control. The act of one nursing home resident
attacking a fellow resident is not abuse because the element of
control is lacking").
To be sure, in a footnote in Krusell, we acknowledged a
second line of "cases where insurers successfully relied upon an
abuse and molestation exclusion" to preclude coverage based on
"conduct that implies that the abuser is cruel or inhumane, that
is, disposed to inflict pain or suffering." Krusell, 485 Mass.
at 444 n.22, citing Auto-Owners Ins. Co. v. American Cent. Ins.
Co., 739 So. 2d 1078, 1080-1082 (Ala. 1999); General Ins. Co. of
Am. v. Okeke, 182 Conn. App. 83, 101-103 (2018) (Okeke). This
footnote apparently led to our statement in dicta that a
reasonable insured would interpret "physical abuse" to apply to
a limited subset of physically harmful conduct, "such as . . .
perhaps, conduct so extreme as to indicate an abuser's
disposition towards inflicting pain and suffering" (emphasis
added). Krusell, supra at 446.
It is worthy of note, however, that in at least one of
those cases, there was a discernible misuse of power in carrying
out the "physical abuse." In Auto-Owners Ins. Co., 739 So. 2d
at 1080-1082, it was alleged that leaders of a fraternity forced
a fraternity pledge to "dig a ditch and jump into it after it
19
had been filled with water, urine, feces, dinner leftovers, and
vomit"; receive "paddlings to his buttocks"; be "pushed and
kicked, often into walls, pits, and trash cans"; and "'run[] the
gauntlet,' during which the pledges were pushed, kicked, and hit
as they ran down a hallway and down a flight of stairs." While
an element of power was not as prominent in Okeke, 182 Conn.
App. at 90, 100-101, where the conduct involved a fifteen year
old insured attacking, beating, and stabbing his elderly female
neighbor inside her residence, that court's interpretation of
the term "physical abuse" expressly differs from our own.
Contrary to our view, the court in Okeke concluded that the
conduct there could not "plausibly be considered anything other
than 'physical abuse,'" specifically rejecting the argument that
the term "physical abuse," as used in an abuse and molestation
exclusion, was ambiguous. See id.
Statutes and regulations in the Commonwealth confirm that
the term "physical abuse" implies an imbalance or misuse of
power. Our review of those sources in Krusell revealed that
"[t]he term routinely has been applied to conduct causing harm
to a vulnerable type of victim, where the alleged abuser may be
responsible for the vulnerable individual's care." Krusell, 485
Mass. at 445. See, e.g., G. L. c. 265, § 13K (a 1/2) (abuse of
elder); G. L. c. 265, § 23 (rape and abuse of child). See also
103 Code Mass. Regs § 491.13 (2017) (grievance process for abuse
20
of inmates in correctional facility); 105 Code Mass. Regs
§ 155.003 (2017) (defining abuse of medical patients or
residents in context of long-term care facilities); 118 Code
Mass. Regs § 2.02 (2021) (defining abuse of persons with
disabilities).
We therefore clarify 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. Although we suggested in Krusell, 485 Mass. at 446,
that perhaps there might be circumstances where the extremity of
conduct may itself render physically harmful conduct "abusive,"
our examination of the policy language and other relevant
sources leads us to conclude that a reasonable insured would
interpret extreme physically harmful conduct to constitute
"physical abuse" only where it also embraces a power component.
d. Application. Here, although Brengle's attack on
Miville was unprovoked and inexplicable, it did not involve an
exploitation or misuse of power. Dorchester Mutual's argument
that, due to the thirty-one year age gap between Brengle and
Miville and Miville's "advancing years," there was a physical
power imbalance that rendered the attack "physical abuse" is
unavailing. Indeed, a starker age gap existed in Krusell, where
21
the insured was twenty-three years old and the victim was sixty-
two years old, and we had little trouble concluding that no
"'abusive' quality" such as a "misuse of power" existed.
Krusell, 485 Mass. at 433, 446. As a result, a reasonable
insured would not expect the abuse and molestation exclusion to
preclude coverage for the incident here.
Conclusion. The summary judgment in favor of Dorchester
Mutual is reversed, and the matter is remanded for further
proceedings consistent with this opinion.
So ordered.