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Vermont Mutual Insurance Company v. Ben-Ami

Supreme Court of Maine

August 21, 2018

VERMONT MUTUAL INSURANCE COMPANY
v.
JONATHAN BEN-AMI et al.

          Argued: April 11, 2018

          James D. Poliquin, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for appellant Vermont Mutual Insurance Company

          Alicia F. Curtis, Esq. (orally), and James E. O'Connell III, Esq., Berman & Simmons, PA, Lewiston, for appellee Jonathan Ben-Ami

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶l] In October of 2011, Joshua Francoeur attacked a fellow high-school student, Jonathan Ben-Ami, by punching him a number of times in the face, causing Ben-Ami serious injuries, including a broken jaw. This appeal concerns the availability of homeowner's liability insurance coverage for damages resulting from those injuries. The insurer, Vermont Mutual Insurance Company, appeals from a declaratory judgment entered by the Superior Court (York County, O'Neil, J.), determining, in relevant part, that Francoeur's tortious conduct did not fall within a policy exclusion from coverage for bodily injury that is "expected or intended" and that Ben-Ami is entitled to indemnification pursuant to the policy.[1] Given the nature and circumstances of the assault as found by the court, the evidence compelled the court to find that Francoeur "expected" that he would cause bodily injury to Ben-Ami, thereby triggering the exclusion and relieving Vermont Mutual from any obligation to pay for Ben-Ami's damages. We therefore vacate the judgment and remand for entry of judgment for Vermont Mutual.

         I. BACKGROUND

         [¶2] The court found the following facts, which-except where indicated otherwise-are supported by the record. See State Farm Mut. Auto. Ins. Co. v. Estate of Carey, 2012 ME 121, ¶ 2, 68 A.3d 1242. Because Vermont Mutual moved for the court to issue further findings pursuant to M.R. Civ. P. 52(b), we consider only the findings and conclusions explicitly rendered by the court and do not attribute any inferred findings to the court. See Ehret v. Ehret, 2016 ME 43, ¶12, 135 A.3d 101.

         [¶3] Francoeur, the son of the named insured under the Vermont Mutual policy, and Ben-Ami attended the same high-school at the time of the incident giving rise to this action. While attending a football game, days before the physical attack, Francoeur and Ben-Ami became engaged in a verbal dispute. As a result of that encounter, Francoeur, encouraged by friends, planned an attack on Ben-Ami. On October 24, 2011, Francoeur left a class he was attending and walked to Ben-Ami's classroom, planning to hit Ben-Ami. When Francoeur arrived at Ben-Ami's classroom, he had second thoughts about following through with his plan but was encouraged by a friend to proceed with it. Francoeur found that the door to Ben-Ami's classroom was locked, so Francoeur had to get the attention of the teacher, who unlocked the door and let Francoeur inside. At that time, Ben-Ami was wearing headphones and was "likely unaware" of the imminent attack. Francoeur approached Ben-Ami from behind and struck Ben-Ami in the face multiple times with a closed fist. As a result, Ben-Ami suffered serious injuries, including a broken jaw.

         [¶4] Ben-Ami subsequently commenced a personal injury action against Francoeur in the Superior Court (York County). Francoeur's father owned a homeowner's liability insurance policy for the period that included the date of the assault. Pursuant to the policy, Vermont Mutual provided Francoeur with a defense in the direct action. In January of 2014, however, Vermont Mutual filed a complaint against Francoeur and Ben-Ami in the Superior Court, seeking a declaratory judgment that Francoeur was not an "insured" within the meaning of the policy and that Ben-Ami's damages were not covered by the policy. Later that year, in October of 2014, while the declaratory judgment action was pending, the court entered a consent judgment on Ben-Ami's claim against Francoeur, awarding Ben-Ami $150, 000, but with satisfaction of that judgment contingent on the outcome of the declaratory judgment action brought by Vermont Mutual. The judgment was subject to the further stipulation that Ben-Ami would not execute the judgment against Francoeur personally but instead would file an action to reach and apply the liability insurance proceeds from the Vermont Mutual policy.

         [¶5] Shortly after the court issued the consent judgment in Ben-Ami's personal injury case, Ben-Ami filed a reach and apply action against Vermont Mutual in the Superior Court. See 24-A M.R.S. § 2904 (2017). On Vermont Mutual's motion, the court [Fhtzsche, J.) consolidated into a single action Vermont Mutual's complaint for declaratory judgment and Ben-Ami's reach and apply action.

         [¶6] After denying a motion for summary judgment filed by Vermont Mutual, in February of 2017, the court [O'Neil, /.) held a bench trial on the declaratory judgment portion of the consolidated action. Francoeur, his father, and two employees of the high-school testified. Several months later, the court issued a judgment declaring that Ben-Ami's damages, which had been reduced to the consent judgment, were covered by the insurance policy and setting out the factual findings described above. Regarding the applicability of the policy exclusion, the court found that, at the time of the altercation, Francoeur had the

subjective intent to strike Mr. Ben-Ami on multiple occasions in the face. The [c]ourt however cannot conclude that he subjectively intended to inflict the level of damage that ultimately was inflicted upon Mr. Ben-Ami in the form of his broken jaw. 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 such a serious injury is credible.

         [¶7] Vermont Mutual subsequently filed a motion to amend and for further factual findings. See M.R. Civ. P. 52(b), 59(e). The court declined to amend the judgment except to correct a reference to a date, but the court issued several additional factual findings, including the following:

Francoeur intended to strike Mr. Ben-Ami multiple times in the face with a closed fist. The court however also concludes that Mr. Francoeur was not actively or consciously considering the extent of damage he could and ultimately did cause. The court concludes that at the actual time of the assault his thinking was likely reflective of the words of [his friend] about how the assault would gain him social respect and was not considering the extent of actual damage his actions would cause.
[Francoeur] intended to punch Mr. Ben-Ami. What the court cannot conclude is that at the time of the assault, he subjectively considered or intended the extent of the damage he could and did cause.

         [¶8] In September of 2017, Ben-Ami and Vermont Mutual entered into an agreement whereby Vermont Mutual would satisfy the $150, 000 judgment entered for Ben-Ami, subject to Vermont Mutual's right to appeal. The court accepted the agreement and entered it as a final judgment.[2] Vermont Mutual then filed ...


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