Opinion
18-P-1070
04-30-2019
MASSACHUSETTS HOMELAND INSURANCE COMPANY v. MICHAEL WASHINGTON & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue is whether summary judgment was properly granted in favor of the plaintiff insurer, Massachusetts Homeland Insurance Company (Homeland), in this declaratory judgment action against its insured, Matthew Luz, and a third party, Michael Washington, seeking a declaration that it had no duty to defend or indemnify Luz in connection with a civil action brought against him by Washington. We affirm.
Washington has not appeared in this appeal, nor did he oppose Homeland's motion for summary judgment in the trial court.
The undisputed facts in the summary judgment record showed that Luz was insured under a homeowners policy issued by Homeland covering the period November 1, 2013, to November 1, 2014. The policy provided personal liability coverage as follows:
"If a claim is made or a suit is brought against an 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence' to which this coverage applies, we will . . . [p]ay up to our limit of liability for the damages which an 'insured' is legally liable . . . [and p]rovide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent."For these purposes "'[o]ccurrence' means an accident."
Excluded from coverage was:
"'Bodily injury' or 'property damage' which is expected or intended by an 'insured' or which is the result of intentional acts or omissions, or criminal activity . . . . This exclusion applies regardless of whether an 'insured' is charged with or convicted of a crime. However, this [e]xclusion . . . does not apply to 'bodily injury' resulting from the use of reasonable force by an 'insured' to protect persons or property."
During the policy period, Luz got into an altercation with Washington at a Burger King restaurant. As a result, Luz was charged with assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A, and indecent assault and battery on a person over fourteen, G. L. c. 265, § 13H. Luz's defense to these criminal charges was to challenge Washington's version of events and that he (Luz) acted in self-defense. After a jury trial on September 6, 2016, Luz was convicted of the lesser included offense of assault and battery, and of indecent assault and battery on a person over fourteen. The defendant's appeal of those convictions has been stayed at his request for almost one year to permit him to file, and the lower court to act on, a motion for new trial.
The transcript of the criminal trial, which was part of the summary judgment record, shows that trial counsel argued self-defense during closing and that the judge instructed the jury on self-defense.
After the criminal trial, Washington filed a civil suit against Luz. Washington's complaint alleged that, while in a Burger King restaurant, Luz kicked him from behind and then grabbed him by his genitals, resulting in serious bodily injury. These allegations form the factual bases for the two counts of the complaint, which are captioned assault and battery, and negligence.
Homeland is defending Luz in the civil action subject to a reservation of rights, but has brought the underlying declaratory judgment action in order to obtain a declaration that it has neither a duty to defend nor a duty to indemnify. Homeland's motion for summary judgment was allowed on the ground that the criminal convictions collaterally estopped Luz from relitigating issues decided in the criminal case. See Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985). Judgment entered and this appeal by Luz followed.
Discussion. On appeal, Luz argues that offensive collateral estoppel should not apply because there is no identity of issues between the criminal case and Washington's civil suit, and because he (Luz) did not have a full and fair opportunity to litigate self-defense in the criminal trial. Luz also argues that applying collateral estoppel where an appeal of the criminal conviction is pending would be unfair and against public policy. We disagree.
"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. We may consider any ground supporting the judgment" (citations omitted). Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
To begin with, there is clear identity of issues between the criminal case and Washington's civil suit: both actions were based on the identical set of facts. Although it is true that the second count of Washington's complaint is entitled "NEGLIGENCE," the facts alleged to support it are purely intentional. Thus, a fair reading of the complaint is that Washington is not in fact asserting a negligence claim, but rather asserting individual counts based on the two theories of assault and battery. See Commonwealth v. McCan, 277 Mass. 199, 203 (1931) ("An assault and battery is the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another"). Moreover, even if we were to accept that Washington intended to assert a negligence claim, the facts alleged in his complaint are precisely those the jury in the criminal case found to be intentional beyond a reasonable doubt. Compare Commonwealth v. Woods, 414 Mass. 343, 353 (1993) ("The doctrine of collateral estoppel will preclude . . . the subsequent . . . argument of certain facts, only if the jury could not have based their verdict rationally on an issue other than the one the defendant seeks to foreclose" [quotation omitted]).
In addition, Luz had "sufficient incentive to litigate [his defense] fully and vigorously" in the criminal case. Commonwealth v. Cabrera, 449 Mass. 825, 829 (2007). See Commonwealth v. Ringuette, 60 Mass. App. Ct. 351, 360 (2004). Further, Luz clearly raised self-defense. Luz's trial testimony, combined with trial counsel's closing argument that focused on self-defense and on the implausibility of Washington's version of the events, makes clear that self-defense was a central issue before the jury. Also, the judge instructed the jury on self-defense. Thus, not only did Luz have the opportunity to fully and fairly litigate the issue, he in fact did so.
Finally, our cases have assumed that a judgment on appeal is final for the purpose of collateral estoppel, see O'Brien v. Hanover Ins. Co., 427 Mass. 194, 200-201 (1998), citing Massachusetts Prop. Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 754 (1985), and the facts and circumstances of this case do not suggest that application of this rule would be unfair or against public policy. Although Luz asserts that, had the trial court not misplaced his notice of appeal in the criminal action, his criminal conviction might have been reversed before Washington's civil suit commenced, there is nothing in the record to support the claim that the court lost Luz's filing, and Luz's prediction about the outcome of the criminal appeal is speculative.
Although Luz also claims that the civil litigation revealed newly-discovered evidence that Washington engaged in name-calling, the information to which he points could have been elicited from Washington on cross-examination in the criminal case or he himself could have testified to that information as being within his own knowledge. See Commonwealth v. LeFave, 430 Mass. 169, 176 (1999) ("Newly discovered evidence is evidence that was unavailable at the time of trial and could not have been discovered with reasonable diligence").
Judgment affirmed.
By the Court (Wolohojian, Milkey & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 30, 2019.