While the declaratory judgment action was pending, Mr. Francoeur agreed to settle with Mr. Ben-Ami for $150,000, but with satisfaction of that judgment contingent on the outcome of the declaratory judgment action brought by Vermont Mutual.

In the declaratory judgment action, the trial court found that, at the time of the altercation, Mr. Francoeur intended to punch Mr. Ben-Ami, but it said that it could not conclude that at the time of the assault he “subjectively considered or intended the extent of the damage he could and did cause.” Accordingly, the trial court ruled against Vermont Mutual.

Vermont Mutual appealed to the Supreme Judicial Court of Maine.

The Maine Supreme Judicial Court's Decision

The court vacated the trial court's decision and remanded for entry of judgment in favor of Vermont Mutual.

In its decision, the court explained that the Vermont Mutual policy excluded coverage for “bodily injury . . . expected or intended by the insured.” Having previously ruled that that language was ambiguous because it could reasonably be interpreted in different ways, including by leaving open the question of whether the infliction of bodily injury must be “expected or intended” based on an objective assessment or based on the tortfeasor's own subjective perceptions, the court said that it would interpret the exclusion to mean “bodily injury that the insured in fact subjectively wanted ('intended') to be a result of his [or her] conduct or in fact subjectively foresaw as practically certain ('expected') to be a result of his [or her] conduct.”

Here, the court said, given that Mr. Francoeur subjectively intended to hit Mr. Ben-Ami multiple times in the face with a closed fist, it had to determine whether the evidence compelled the conclusion that Mr. Francoeur had either expected or intended bodily injury to Mr. Ben-Ami, which would trigger the exclusion.

The court pointed out that the trial court had made a number of supported findings regarding the background, nature, and magnitude of the attack: Mr. Francoeur and Mr. Ben-Ami had had a hostile verbal encounter several days earlier; Mr. Francoeur then developed a plan to attack Mr. Ben-Ami; Mr. Francoeur approached Mr. Ben-Ami from behind so that Mr. Ben-Ami, who had headphones on, was “likely unaware” of the imminent attack; Mr. Francoeur punched Mr. Ben-Ami about the face with a closed fist “multiple times”; and, as the direct result of the assault, Mr. Ben-Ami sustained serious injuries, including a broken jaw.

The court then observed that central to the trial court's conclusion that the damages for the assault fell outside of the coverage exclusion were its findings that Mr. Francoeur did not consider “the consequences of his action” and did not “subjectively consider[] or intend[] the extent of the damage he could and did cause.”

According to the court, the trial court's findings regarding Mr. Francoeur's “expectation” of Mr. Ben-Ami's injury could “not stand alongside the [trial] court's account of the attack itself.” The court ruled that, given the premeditated nature of the assault, the ambush tactic that Mr. Francoeur used, and the location and magnitude of the resulting injuries, the evidence compelled the trial court to find, at the very least, that Mr. Francoeur “must have subjectively foreseen as practically certain (i.e., expected) that his deliberately violent conduct would result in bodily injury to [Mr.] Ben-Ami.”

The court refused to rule, as urged by Vermont Mutual, that an assault such as this fell within the policy exclusion irrespective of the assailant's subjective intent or expectation of harm. Rather, it found it sufficient to conclude based on the facts that Mr. Francoeur's specific conduct established that the damages he inflicted on Mr. Ben-Ami were excluded from coverage by the Vermont Mutual policy.

The case is Vermont Mutual Ins. Co. v. Ben-Ami, No. Yor-17-416 (Maine Aug. 21, 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, P.A., Lewiston, for appellee Jonathan Ben-Ami.