By Matthew T. Mehalic, Esq., CPCU

In Vermont Mutual Insurance Company v. Jonathan Ben-Ami, et al., 2018 ME 125 (August 21, 2018), the Law Court addressed whether the expected or intended injury exclusion applied where an individual carried through a premeditated attack on another.  James Poliquin, Esq. of Norman, Hanson & DeTroy, LLC represented Vermont Mutual on this claim and successfully argued that the exclusion applied.

The case arose out of Joshua Francoeur’s attack on a fellow high-school student, Jonathan Ben-Ami.  The two individuals had a verbal altercation at a football game several days before the attack.  Francoeur was encouraged by his friends to plan an attack on Ben-Ami.  During the school day, Francoeur went to Ben-Ami’s classroom.  The door to the classroom was locked, but Francoeur was able to convince the teacher to open the door.  Francoeur went up behind Ben-Ami who was wearing headphones and punched him repeatedly in the face resulting in injuries and a broken jaw.

Francoeur’s father had a homeowner’s policy with Vermont Mutual.  The policy included an exclusion for expected or intended injury which provided in pertinent part that coverage was excluded for “bodily injury . . . which is expected or intended by the insured.”  Id. at ¶ 12.  Ben-Ami filed a complaint against Francoeur and Vermont Mutual provided a defense under a reservation of rights based on the expected or intended injury exclusion and on other grounds not addressed by the Law Court on appeal.  Eventually, Ben-Ami and Francoeur agreed to a stipulated judgment with a covenant not to execute against the personal assets of Francoeur.  Ben-Ami proceeded solely against any liability coverage that was provided under the Vermont Mutual policy.  Vermont Mutual filed a declaratory judgment action on the basis of the application of the exclusion, among other reasons, and Ben-Ami filed a reach-and-apply action against Vermont Mutual.  The two matters were consolidated.

The Superior Court denied Vermont Mutual’s motion for summary judgment and held a bench trial on the applicability of the expected or intended injury exclusion and ruled in favor of Ben-Ami.  The Superior Court did not conclude that Francoeur “subjectively intended to inflict the level of damage that ultimately was inflicted upon Mr. Ben-Ami in the form of his broken jaw.”  Id. at 6.  Furthermore, the Superior Court determined that, “Mr. Francoeur’s testimony that he did not consider the consequences of his action or consider the likelihood that his punching of Mr. Ben-Ami would produce a serious injury [was] credible.”  Id.  Vermont Mutual appealed the Superior Court’s decision.

The Law Court framed the dispositive issue as “whether the evidence compelled the court to find that Francoeur either “intended or expected” bodily injury to Ben-Ami, which would trigger the exclusion.”  Id. at ¶ 14.  The Court determined that the evidence did compel such a finding.

Crucial to the Courts determination were the following facts:

Francoeur and Ben-Ami had had a hostile verbal encounter several days earlier; Francoeur then developed a plan to attack Ben-Ami; in execution of that plan, Francoeur left his classroom and proceeded to another classroom where Ben-Ami was present; Francoeur induced the teacher to unlock the door in order to allow him into the classroom; Francoeur approached Ben-Ami from behind so that Ben-Ami, who had headphones on, was “likely unaware” of the imminent attack; Francoeur punched Ben-Ami about the face with a closed fist “multiple times”; and, as the direct result of the assault, Ben-Ami sustained serious injuries, including a broken jaw.

Id. at ¶ 15.  The Court could not rectify these facts with the Superior Court’s findings that Francoeur did not consider the consequences of his action or did not subjectively intend the extent of damage he could, and did, cause.  “Given the premediated nature of the assault, the ambush tactic that Francoeur used, and the location and magnitude of the resulting injuries, the evidence compelled the court to find, at the very least, that Francoeur must have subjectively foreseen as practically certain (i.e., expected) that his deliberately violent conduct would result in bodily injury to Ben-Ami.”  Id. at 17.

Despite the Court’s decision in favor of Vermont Mutual, the Court refused to categorically hold that an assault, as that at issue in the matter, always fell within the expected or intended exclusion without consideration of the subjective intent or expectation of harm of the perpetrator, as was requested by Vermont Mutual.

In a concurring opinion, Justices Mead, Alexander and Jabar, three of seven Justices on the panel, agreed with the Court’s entry of judgment in favor of Vermont Mutual, but wished that the Court had gone further, as requested by Vermont Mutual.  “I would go further and conclude that this factual scenario – the intentional striking of an unsuspecting person in the face with a closed fist – leads to a conclusion that as a matter of law the physical injuries resulting from the attack were intended and expected.”  Id. at ¶ 25.  The concurring Justices wished to do away with an examination of the subjective intent of the perpetrator under these circumstances when determining if the expected or intentional injury exclusion applied.