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On February 5, 1997, the Appeals Court of Massachusetts said no to an insurance company attempting to get out of covering injuries caused by assaults on police officers and said yes to police officers and other victims who suffer injuries from such assaults. In Preferred Mutual Insurance Company v. Gamache, 42 Mass.App.Ct. 194 (February 5, 1997) the insurance company tried to undo twelve years of Massachusetts precedent which required insurance companies issuing homeowners insurance to cover some injuries which their insureds caused through intentional acts. Police officers are often assaulted and injured while making arrests and responding to disturbances. These injuries are often caused by those they are arresting or restraining and those who interfere with the officers' duties.

The Gamache decision is important because avenues to insurance must stay open for injured officers to compensate them for financial losses and pain and suffering. Ask any officer, who is out injured on duty, whether the base pay he is receiving while out injured on duty is enough to cover his mortgage/rent, car payments, college tuition and other debt. Injury on duty pay, paid by Cities and Towns pursuant to G.L. c. 41, §111F, does not include valuable overtime and detail pay which often comprises a substantial portion of an officer's income. Further, many injuries suffered by police officers are serious and disabling making them just as deserving of compensation as any other member of the general public for their pain and suffering.

Insurance companies routinely attempt to avoid these claims by relying upon language in the insurance policy which excludes coverage where the insured intended to cause the resulting injury. In previous articles I have outlined some of the strategies which utilize past decisions of the Court to defeat this exclusionary language. In the Gamache case, the Appeals Court was confronted by an aggressive insurance company which sought to nullify past decisions of the Court and strategies which we employ to help injured officers, by including language in its policy which excluded all intentional acts, regardless of whether the insured person intended the resulting injury or not.

Preferred Mutual Insurance Company v. Gamache involved an incident on September 10, 1991 at approximately 1:30 a.m. when Officer Andrade and another officer of the New Bedford police department arrived at the scene of a fight. They observed a person lying on the ground holding his head and nearby stood Gamache who was bleeding from his head. As the officers approached Gamache, he acted out of control and began kicking at the officers to keep them away. Eventually, the officers positioned Gamache face down on the ground and, as Officer Andrade prepared to handcuff him, Gamache reached up and grabbed Officer Andrade's utility belt causing Officer Andrade to lose his balance, seriously injuring his left knee. Both officers noticed that Gamache's speech was slurred, his eyes glassy and bloodshot, he smelled of alcohol, and he was unsteady on his feet.

Gamache was considered an insured person under his parents' homeowners policy with Preferred Mutual as he lived with them at the time of the assault. Preferred Mutual denied coverage relying on its broad policy language which excluded coverage where:

The "bodily injury . . . which results directly or indirectly from . . . an intentional act of an insured."

Contrasted with this broad language, which appears to cover all intentional acts of an insured, is the language in prior homeowners policies interpreted by the Massachusetts Courts over the past twelve years. These older policies exclude coverage only where the resulting injury was expected or intended by the insured. In those past cases, the Courts have stated:

"The insured person may have intended to act but may not have intended for the actual injury, thereby negating the effect of the exclusionary Language."

See, e.g., Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 83 (1984)(coverage applied where young boy threw blacktop at a passing car's windshield resulting in serious injuries to occupants which he had not intended) and Hanover Ins. Co. v. Talhouni, 413 Mass. 781,783 (1992)(coverage applied as insured who ingested LSD before assaults could not form the intent required to cause the resulting injuries because of his intoxication).

After the Abernathy and Talhouni decisions, the door was left open for injured police officers where the injured officer could prove that although the assailant acted intentionally, he did not intend for the consequences of his act, thereby defeating the exclusion. However, Preferred Mutual Insurance Company tried to nullify the past decisions of the Courts by using broader policy language which excluded all intentional acts regardless of whether the insured intended the resulting injury or not. I surmise Preferred Mutual reasoned that if the Court ever reviewed its policy language eliminating all intentional acts, the Court would never inquire whether the injury was intended or not, ending its analysis when it found an intentional act. For example, under the Preferred Mutual policy, the boy in Abernathy, discussed above, who threw blacktop at a car, would not be covered since his throwing of the blacktop was an intentional act. Preferred Mutual would have argued in that case that it didn't matter whether the boy intended to hurt the occupants or just cause property damage to the car, as the act of throwing was "intentional." Had Preferred Mutual succeeded in this argument, then the door would have been shut on injured police officers' claims where policy language like Preferred Mutual's was involved. Certainly, other companies would have followed Preferred Mutual's lead by amending their policies to include Preferred Mutual's broad exclusionary language in future policies issued.

Preferred Mutual's arguments were bolstered by the fact that Gamache plead guilty to intentional crimes: two counts of assault and battery upon a police officer in violation of G.L. c. 265, §13D. Fortunately, the Appeals Court rejected Preferred Mutual's argument to exclude all intentional acts. The Court responded that many accidents begin with some volitional act of a person which could be considered intentional, although the resulting sequence of events and injuries may not have been intended by that person. To allow Preferred Mutual to avoid coverage based upon its broad exclusionary language for all intentional acts could wipe out coverage for most accidents under homeowners' polices. In saying no to Preferred Mutual, the Court quoted Liberty Mutual Insurance v. Tabor, stating that "a provision in an insurance policy that negates the very coverage that the policy purports to provide . . . is void as against public policy." 407 Mass. 354, 358 (1990). Taking the position of prior decisions, the Court refused such an interpretation and restated:

"The Court's focus will continue to be on whether the insured intended to cause the harm which resulted, not on whether the insured intended the act itself.
The Appeals Court sent back the Gamache case to the Superior Court where it will consider the intent of Gamache when he reached up and pulled on Officer Andrade's utility belt and to consider whether Gamache could have formed the requisite intent given the extent of his obvious intoxication at the time."

Injured officers should take note of the Gamache decision and be reminded that they need not go without compensation for physical suffering and financial loses when injured by the blow of a person being arrested or restrained or by the persons who get in their way and jump them as they attempt to effectuate an arrest. Thorough investigation and persistence can unearth valuable homeowners insurance policies which should be aggressively and skillfully pursued to compensate the injured officer for his pain and suffering, disability, and the overtime and detail money lost while out injured on duty.


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