Thomas D. Warren Justice, Superior Court
Before the court is a motion for summary judgment by plaintiff Vermont Mutual Insurance Co.
The facts are undisputed. Thomas Getchell has a pending lawsuit against defendant John Allen based on allegations that Allen inflicted serious bodily injury on Getchell in an altercation on January 4, 2013. Getchell's original complaint, dated July 10, 2014, asserted causes of action for negligence, negligent infliction of emotional distress, and battery. Vermont Mutual SMF ¶ 2.
Allen had a Vermont Mutual homeowner's policy at the time of the events in question, and Allen tendered his defense to Vermont Mutual, which initially agreed to provide a defense under a reservation of rights. Vermont Mutual SMF ¶¶ 3, 6.
On September 19, 2014 Getchell amended his complaint to eliminate the allegations of negligence and negligent infliction of emotional distress. Vermont Mutual SMF ¶ 7. Only a cause of action for battery remains. As amended, Getchell's complaint alleges that Allen and another individual "attacked, assaulted, viciously beat, and caused serious bodily injury to [Getchell], " that Allen's actions were "willful, intentional, and committed with actual or implied malice" and that Allen "expected or intended to inflict the injuries and damages that in fact resulted." Exhibit C to Donahue Affidavit ¶¶ 4, 6.
After the September 19, 2014 amendment to Getchell's complaint, Vermont Mutual filed the instant action seeking a declaratory judgment that it no longer has any duty to defend Allen.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.
Duty to Defend
The parties agree that the determination of whether an insurer has a duty to defend requires a comparison between the allegations of the underlying complaint with the coverage provided in the insurance policy, that the duty to defend is broader than the duty to indemnify, and that an insurer must provide a defense if there is any potential that the facts ultimately proven could result in coverage. Mitchell v. Allstate Insurance Co., 2011 ME 133 ¶¶ 9-10, 36 A.2d 876.
This case presents a variation from the usual situation because the plaintiff in the underlying action, Thomas Getchell, has amended his complaint in a manner that appears to be designed to avoid insurance coverage. This is confirmed by the fact that Getchell, named as a party in interest in this suit, has filed a pleading supporting Vermont Mutual's argument that Vermont Mutual has no duty to defend.
At the outset, the court agrees with Vermont Mutual that whether the insurer continues to have a duty to defend must be considered with reference to the amended complaint rather than with reference to the original complaint. See Conway Chevrolet-Buick Inc. v. Travelers Indemnity Co., 136 F.3d 210, 214 (1st Cir. 1998).
Looking at the language in the amended complaint, Vermont Mutual argues that the altercation that resulted in alleged harm to Getchell does not qualify as an "occurrence" under the policy and also falls directly within an express exclusion for bodily injury which is "expected or intended by the insured."
The definition of "occurrence" matters because Vermont Mutual's policy insures against liability for bodily injury caused by an "occurrence, " which is defined as an "accident." See Homeowner's Policy Section II, Coverage E and Definitions ¶ 5. The Law Court has ruled that the determination of whether an act is accidental "depends on the unintended nature of the consequences of the act, rather than the intentional nature of the act itself." Maine Mutual Fire Insurance Co. v. Gervais, 1998 ME 197 ¶ 9, 715 A.2d 938. Thus it would be theoretically possible for a battery to involve ...