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 ...