Mass. Supreme: No ‘Imbalance of Power’ Means Beating Wasn’t Abuse

An act of physical abuse is not excluded by an abuse and molestation exclusion in a homeowners insurance policy unless the act involves “an imbalance or misuse of power in addition to being physically harmful,” the Massachusetts Supreme Judicial Court has ruled.

The ruling came in a case where Leonard Miville, a 61-year old man, who was visiting his girlfriend, was seriously injured by a 30-year old man, William Brengle, who was living next door with his parents. Brengle initiated an unprovoked attack on Miville, punching him in the head and repeatedly kicking him after he had fallen. Miville sued the Brengles.

A lower court, citing a 2020 case by the state’s high court, granted a summary judgment in favor of Dorchester Mutual Insurance Co., finding that the act was excluded by the abuse and molestation clause in the policy it issued to the Brengles.

But the Supreme Judicial Court has now reversed, using the current case as an opportunity to clarify its opinion in the 2020 case that also involved Dorchester Mutual (Dorchester Mutual Insurance Co. v. Krusell) and addressed the term “physical abuse” in the context of an abuse and molestation exclusion.

In this new case it found that because the attack 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. The court found the age difference between the attacker and victim unavailing.

The Dorchester 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.”

In Krusell, the high court had concluded that the term “physical abuse” as used in an identical policy exclusion to that in this case was ambiguous. Interpreting the exclusion through the lens of an “objectively reasonable insured,” it 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.”

In the Krusell case, the court found that the conduct – a single push of a 62-year old man by the insured 23-year-old –-contained no such “abusive” quality and held that the abuse and molestation exclusion did not preclude coverage.

Both parties to the current case agreed that the ruling in Krusell applied but disagreed over its application to the facts.

In the current case, the insured, Brengle, initiated an unprovoked attack on Miville by punching him in the head and repeatedly kicking him. Miville argued that the incident was not excluded because it was not “physical abuse” where there was a power imbalance between Brengle and himself, and the incident was not “so extreme” as to reflect a disposition by Brengle to inflict pain and suffering.

Dorchester Mutual, however, contended that the incident fell under the exclusion because it possessed both “abusive” qualities mentioned in Krusell. Specifically, Dorchester Mutual maintained that the age difference between Miville and Brengle demonstrated a physical power imbalance between the two. Additionally, the insurer argued that the incident was both violent and unprovoked, and thus Brengle’s disposition to inflict pain and suffering could be inferred from his conduct.

But the high court found that the circumstances were not sufficient to satisfy the power element or otherwise trigger the policy exclusion. The court determined that 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 31 year age gap, there was a physical power imbalance that rendered the attack “physical abuse” was not enough to indicate an imbalance of power. It noted that there was a bigger age gap in the Krusell case, yet the court concluded that no “abusive’ quality” such as a “misuse of power” existed.

“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,” the state supreme court concluded.

In its discussion, the court noted that, as in the 2020 case, “physical abuse” was not defined in the policy and was ambiguous. The court said it was influenced by the term’s location within the policy. Immediately preceding the term “physical abuse” in the abuse and molestation exclusion are the terms “sexual molestation” and “corporal punishment.” Both “sexual molestation” and “corporal punishment” generally involve an imbalance or exploitation of power between the perpetrator and the victim, the court noted.

“Words are, at least in part, defined by the company they keep,” the court commented.

The high court said it was also influenced by the history of the abuse and molestation exclusion. It said its interpretation of physical abuse requiring a power element is supported by the context in which the exclusion originated. In the early 1980s, a surge of sexual abuse claims arose against clergy members within the Roman Catholic Church. 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.

It was against this backdrop that insurance companies began including 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.