MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 125 Docket: Yor

- 17

- 416 Argued: April	11,	2018 Decided: August 21 ,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ. Majority: SAUFLEY,	C.J.,	and	GORMAN,	HJELM,	and	HUMPHREY,	JJ. Concurrence: MEAD, ALEXANDER, and	JABAR ,	JJ

.

VERMONT	MUTUAL	INSURANCE	COMPANY

v. JONATHAN	BEN

- AMI	et	al.

HJELM ,	J. [¶1] 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	 liabi lity	 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	i s	entitled	to	indemnification2 pursuant	to	the	policy. 1 Given the	nature and	circumstances of	the assault	as found	 by	 t he	 court , the evidence	 compelled the	 court	 to	 find that Francoeur

“ expected ” that he w ould cause bodily injury	to	Ben

- Ami ,	thereby	triggering	the exclusion	 and	 relieving	 Vermont	 Mutual	 from	 any	 obligatio n	 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	sa me	high

- school	at	the	time	of	the	incident

1 The	court	also	determined	that	several	other	requirements	for	coverage	were	present,	including that Francoeur w as	a	“ resident”	at	the	home	of	his	 father,	who	is	the	named	insured,	and that	the assault was	an	“accident”	and	therefore	a n “occurrence”	that	is	covered	under	the	insurance	policy. Because	we	hold	that	the	intentional	or	expected	injury	exclusion by	itself bar s coverage,	we	do	not reach Vermont	Mutual’s alternative contention that	the	court	erred	in	tho se	determinations.3 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 cla ss	 he	 was attending	and	walked	to	Ben

- Ami’s	classroom , planning	to	hit Ben

- Ami.		When Francoeur	 arrived	 at	 Ben

- Ami’s	 cl assroom, he	 had	 second	 thoughts	 about following	through	with	his	plan but was	encouraged	by	a	friend	to proceed	with
it

. Francoe ur	 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. Francoe u r 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	acti o n	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	 F r ancoeur	 and	 Ben

- Ami in	 the	Superior	Court, seeking	 a4 declaratory	judgment that	Francoeur	was	not	an	“insured”	within	the	meaning of	the	policy and that Ben

- Ami’s	damages	were	not	cover ed	by	the	policy

. Later that	 year,	 i n	 October of 2014,	 w hile	 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 continge nt 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	 a gainst	 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	 Sup erior Court

. See 24

- A	 M.R.S.	 §	 2904	 (2017) .	 	 On Vermont Mutual’s motion,	 the	 court	 ( Fritzsche,	 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,	 J. ) held a bench trial	 on	 the declaratory	judgment portion	of	the	consolidated action

. Francoeur , his	father ,5 and	two employees of	the	high

- school testified. S everal	month s	later,	t he	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 ,	t he	court found	that , at	the	time	of	the	altercation, Francoeur had	the

s ubjective	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	se rious	injury	is	credible. [¶7 ] Vermont	 Mutual subsequently filed	 a	 motion to	 amend	 and for further	 factual	 findings

. S ee M.R.	Civ.	 P. 52 (b) ,	 59 (e)

. The	 court declined	 to

a mend 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	 ho wever	 also	 concludes	 that Mr. Francoeur	 was	 not	 actively	 or	 consciously	 considering	 the exte nt	 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	exte nt of	actual	damage	his	actions	would	cause

.

.	.	.	.6 [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	ag reement	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	a s	a	final judgment

. 2 Vermont	Mutual then filed	 a	 timely	 appeal to	 us

. See 14	 M.R.S.	 §§ 1851,	 5959 (2017) ;	 M.R. App. P. 2B(c) (1)

. II.		DISCUSSION [¶ 9 ] The dispositive	issue	on	appeal	is	whether	the	damages	sustained by	Ben

- Ami	resulted	from	“bodily	injury	.	.	.	[w]hich	is	exp ected	or	intended	by”
Francoeur and	 therefore	 fall	within	 the	exclusion	 from	coverage	provided	by the	homeowner’s	insurance	policy	tha t	Francoeur’s	father	had	purchased	from Vermont	Mutual .		(Quotation	marks	omitted.) [¶1 0 ] “The	 interpretation	 of	 an	 insurance	 contract	 exclusion	 and	 its applicability	is	a	matter	 of	law	 reviewed	de	novo.” Pease	v.	State	 Farm	Mut.
Auto.	Ins.	Co. ,	2007 ME	134,	¶	7,	931	A.2d	1072 .		“[T]he	rule	requiring	a	strict

2 Because	the reach

- and

- apply	component	of	the	consolidated	action	remained	pending	after	the court	issued	the declaratory	judgment in	Apri l	of	2017 , there	was	no final	judgment	until	the	court issued	the	stipulated	judgment	in	September	of 2017.7 construction	 against	 the	 insurer	 and	 a	 liberal	 construction	 in	 favor	 of	 the insured	 is	 not	 applicable	 unless	 there	 is	 ambiguity	 in	 terms	 of	 the	 policy.” Foremost	Ins.	Co.	v.	Levesque ,	2005	ME	34, ¶	24,	868	A.2d	244 (quotation	marks omitted). [¶ 1 1 ] A	trial	court’s	factual	findings	are	reviewed	for	clear	error. Patrons Oxford	Ins.	Co.	v.	Harris ,	2006	ME	72,	¶	7,	905	A.2d	819

. Vermont	Mutual	bore the	 burden	 befo re	 the	 trial	 court	 to	 prove	 the	 applicability	 of	 the	 exclusion necessary	to	defeat	coverage. See Mut

. Fire	Ins.	Co.	v.	Hancock ,	634	A.2d	1312, 1313	(Me.	1993)

. Therefore, because	the	trial	court	determined	that	Vermont Mutual	 failed	 to	meet	its burden	of	proof,	Vermont	Mutual	must	establish	on appeal	that	the	evidence	compelled	the	court	to	make	contrary	factual	findings necessary	for	a	judgment in	its	favor

. See St.	Louis	v.	Wilkinson	Law	Offices,	P.C. , 2012	ME	116,	¶	16,	55	A.3d	443

. And	as noted	above, see supra ¶ 2, b ecause Vermont	Mutual	moved	 for	 the	court	 to	issue further	 findings,	 our	 review	is confined	to	the	court’s	explicit	findings. See M.R.	Civ.	P.	52(b); Ehret ,	2016	ME 43,	¶ 12,	135	A.3d	101

. [¶1 2 ] Here,	 t he	general	grant	of personal	liability coverage created	by the	 policy encompasse s damages	 for “bodily	injury”	 caused by	 an	 applicable8 “occurrence”	for	which	the	insured	is	liable. 3 (Quotation	marks	omitted.) An “[o]ccurrence means	an	accident	.	.	. which	results ,	d uring	the	policy	period,	in

. .	 . [b]odily	 injury.” (Quotation	 marks	 omitted.) Although	 “accident”	 is	 not defined	in	the	policy,	coverage	for	personal	liability	is nevertheless subject	to the	related exclusion	for	“ bodily	injury	.

. . [w]hich	is	expected or	intended	by the	insured.” (Quotation	marks	omitted.) [¶1 3 ] We	 have	 previously	 considered a materially identical policy exclusion	for	conduct	that	resulted	in	“bodily	injury	.	.	.	which	is	either	expected or	intended	from	the	standpoint	of	the [i] ns ured.” Patrons

- Oxford Mut. Ins.	Co. v.	 Dodge ,	 426	 A.2d	 888,	 88 9 (Me.	 1981) (quotation	 marks	 omitted)

. W e concluded that	this policy language i s	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

. Id. at	891.		 Accordingly,	 applying	 the	 established	principle	 that ambiguities	 in	 an	 insura nce	 policy	 are	 to	 be	 construed	 strictly	 against	 the

3 The policy defines an “ insured ” as the	policyholder

— here,	Francoeur’s	father

— and	“residents of	[the	policyholder’s]	household	who	are”	relatives	of	the	policyholder	or	under	twenty

- one	years of	age	and	under	the	policyholder’s	care. As	is	noted	above, see	supra n.1,	Vermont	Mutual	asserts that ,	because	of	Francoeur’s	living	arrang ement	and	the	nature	of	his relationship	with	his	 father, Francoeur was	not	an	“insured”	under	the	policy.		We	do	not	reach	this	issue	because	we	vacate	the judgment	on	other	grounds.9 insurer	 and	 favorably	 to	 the	insured ,	we	interpreted	 that	 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.” Id. at	891

- 92. W e	construe and	apply	the	exclusion	language	in	Vermont	Mutual’s	policy	the	same	way. [¶1 4 ] I t	 is	 undisputed ,	 and	 the	 court	 explicitly	 foun d, that	 Francoeur subjectively	intended	 to hit Ben

- Ami	multiple	 times	in	 the	 face	with a closed fist. Although	Vermont	Mutual	seeks	to	frame	this	case	more	broadly, see	infra ¶ 18 ,	the	dispositive	question here is	whether	the	evidence	compelled	the	court to	find	that Francoeur either “ intended or expected ” bodily	injury to	Ben

- Ami , which	would	trigger	the	exclusion

. [¶1 5 ] The	 court	 made	 a	 number	 of	 supported	 findings	 regarding	 the background, natu re , and	magnitude	of	the attack : Francoeur	and	Ben

- Ami	had had	a	hostile	verbal	e ncounter	several	days earlier ;	Francoeur	then	developed

a plan to	attack Ben

- Ami; in	execution	of that	plan,	Francoeur	left	his	classroom and	proceeded	to another classroom	where	Ben

- Ami	was	present; Francoe ur induced	the	teacher	to unlock	the	door in	order	to allow him	into	the	classroom; Francoeur	 approached	 Ben

- Ami	 from	 behind	 so	 that	 Ben

- Ami,	 who	 had headphones	 on,	 was	 “likely	 unaware ” of	 the	 imminent attack ;	 Francoeur10 punched	Ben

- Ami	about	the	face with a	closed	fist “multiple	times”;	and ,	as	the direct	 result	 of the assault , Ben

- Ami	 sustained	 serious	 injuries , including	 a broken jaw. [¶1 6 ] Against the	 backdrop	 of	 these	 findings,	 however,	 the	 court	 also found	that	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.” These	specific	findings	were central	to	the	court’s	conclusion	that the	damages	for	the assault fell	outside	of	the	coverage	exclusion	at	issue	here. [¶1 7 ] Despite	F r ancoeur’s	testimony,	the	court’s	f indings	regarding his “expectation” of	Ben

- Ami’s	injury cannot	stand	alongside	th e court’s account	of the attack itself.	 	 Given	 the	 premeditated	 nature	 of	 the assault ,	 the	 ambush tactic	 that	 Francoeur	 used,	 and	 the location	 and magnitude	 of	 the	 resulting injuries,	 the	 evidence	 compelled	 the	 court	 to	 find,	 at	 the	 very	 least,	 that
Franco eur	must	have	subjectively	foreseen	as	practically	certain (i.e.,	expected) that	his	deliberately	violent	conduct	would	result	in	bodily	injury	to	Ben

- Ami. See	Dodge ,	426	A.2d at 8 92. [¶1 8 ] We need	not	go	as	far	as	Vermont	Mutual	urges,	which	would	be

to hold	 categorical ly	 that an assault such	 as	 this falls	 within	 the	 exclusion irrespective	 of	 the	 assailant’s	 subjective	 intent	 or	 expectation	 of	 harm.11 Vermont	Mutual	asserts	that	this	type	of	in cident	should	be	added	to	a	list	of narrowly	drawn	 types of egregious conduct	 that we	have	held	as	a	matter	of law invoke	 an	 exclusion	 to	 coverage	 because	 the	 conduct	 is	 inherently injurious. See Landry	v.	Leonard ,	1998	ME	241,	¶ ¶ 9

- 10 ,	720	A.2d	907 (arme d robbery	with	the	use	of	a	dangerous	weapon ); Hancock, 634	A.2d at 1312

- 13 (“a	systemat ic,	hours

- long	brutal	beating” and	sexual	assault	of	the	tortfeasor’s domestic	 partner ) ; State	 Mut.	 Ins.	 Co.	 v.	 Bragg ,	 589	 A.2d	 35,	 38	 (Me.	 1991) (murder	and	attempted	murder) ; Perreault	v. Me. Bonding	&	Cas

. Co. ,	568 A.2d 1100,	 1101

- 02	 (Me.	 1990) (sexual	 abuse	 of	 a	 child)

. The	 conduct	 here

— a broken	 jaw

— is	 qualitatively	 different	 from	 those	 types	 of	 conduct	 we	 have categorically	excluded	from coverage . If	Vermont	Mutual	wants	the	policy	to be	applied	in	 that	way,	its	recourse	is	 to change the	 terms	of	coverage in	 the policies	it	sells

. 4 For	our	purposes,	be cause	of	the broad	range	of	individualized

4 The	phraseology	in	the	exclusion	contained	in	Vermont	Mutual’s	policy is	unlike	that	found	in other	 policies,	 such	 as	 the	 policy	 addressed	 in Metropolitan Prop erty	 &	 Casualty	 Insurance Co.	 v. Googins ,	No.	CV

- 13

- 102,	2014	Me.	Super.	LEXIS	228,	at	*6	(Oct.	31,	2014) , where	the	insurer	ex pressly excluded	“intentional	. .	.	act s	even	if	such	bodily	injury	is	of	a	different	kind	or	degree	than	reasonably expected	or	intended	by	you.” Id. (alterations	omitted ) (quotation	marks	omitted). Furthermore,	t he exclusion	language	chosen	by	Vermont	Mutual	has	been	criticized	elsewhere. See,	e.g. , Providence Mut.	Fire	Ins.	Co.	v.	Scanlon ,	638	A.2d	1246,	1248	(N.H.	1994) (addressing	an	identical	expected	or intended	injury	insurance	exclusion,	the	court	stated	that	“we	believe	that	the	insurance	companies doing	business	in	this	State	are best	served	by	being	able	to	rely	on	our	precedents,	and	to	use	them as	 guidance	 in	 drafting	 policy	 provisions.	 	 Thus,	 a	 carefully	 drawn	 exclusion	 could	 avoid	 the [subjective]	 test	and	substitute	an	objective	standard ” ); Espinet	v.	Horvath ,	597	A.2d	307,	3 09	(Vt. 1991) (noting	that	“[h]ad	[the	insurer]	wished	to	exclude	[certain	conduct]	from	coverage	.	.	.	it	could have	included	an	appropriate	provision	in	the	contract”).12 circumstances	that	can	characterize	differen t assaults , 5 and	given	the	nature	of Francoeur’s	particular	conduct as found by	the	court,	it	is	sufficient	to	conclude based	on	the	facts	before	us	that	Francoeur’s	specific	conduct	establishes	that the	 damages	 he	 inflicted	 on	 Ben

- Ami	 are	 excluded	 from	 co verage by	 the Vermont	Mutual	policy. The	entry	is: Judgment vacated

. Remanded	 for	 entry	 of judgment	for	Vermont	Mutual.

MEAD,	J., with	whom	ALEXANDER	and	JABAR,	JJ.,	join, concurring [¶1 9 ]		I agree	fully	with	the	analysis	and	conclusion	of	the	Court	that	the judgment	 of	 the	 Superior	 Court	 be	 vacated	 and	 the	matter	 be	 remanded	 for entry	of a judgment	in	favor	of	Vermont	Mutual.		I	write	separately	because	the facts	 and	 circumstances	 of	 this	 cas e	 underscore	 the	 need	 for	 a	 clear pronouncement	of	law	regarding	the	insurability	of	intentional	assaults. [¶20 ]		The	Court	succinctly	states	the	rationale	for	its	conclusion: Given	 the	 premeditated	 nature	 of	 the	 assault,	 the	 ambush	 tactic that	 Francoeur	 u sed,	 and	 the	 location	 and	 magnitude	 of	 the resulting	injuries,	the	evidence	compelled	the	court	to	find,	at	the very	 least,	 that	 Francoeur	 must	 have	 subjectively	 foreseen	 as

5 For	 example,	in	 the	 criminal	 context,	 the	 bodily	injury	in	 an	 “assault”	 need	 not be	inflicted intentionally	or	knowingly	but	can	be	inflicted	recklessly. See 17

- A	M.R.S.	§	207(1)(A) (2017)

.13 practically	certain

.	.	. that	his	deliberately	violent	conduct	would result	in	bo dily	injury	to	Ben

- Ami. Court’s	Opinion	¶	17

. [¶ 2 1]		The	Court’s	reasoning	is	well	rooted	in	common	 sense.		When	a person	 approaches	 an	 unsuspecting	 victim	 with	 a	 premeditated	 plan	 to repeatedly	strike	that	person	in	the	face	with	a	closed	fist,	the	int entionality	of the	act	is	established	without	question.		The	 trial	court	 found	 that	Francoeur admitted	as	much	in	this	case;	he	argued	only	that	he	did	not	intend	to	inflict the	degree	of	injury	that	Ben

- Ami	suffered. [¶22 ]	 	 As	 authority	 for	 his	 argument that	 his	 injuries	 are	 covered	 by Francoeur’s	 Vermont	 Mutual	 policy,	 Ben

- Ami	 points	 to	 our	 existing jurisprudence	 construing	 insurance	 coverage	 exclusions	 relating	 to	 injuries that	 are expected	 or	 intended. We	 have	 held	 that	 such	 injuries	 are	 “bodily injur [ies]	that	the	insured	in	fact	subjectively	wanted	(‘intended’)	to	be	a	result of	his	conduct	or	in	fact	subjectively	foresaw	as	practically	certain	(‘expected’) to	 be	 a	 result	 of	 his	 conduct.” Patrons

- Oxford	 Mut.	 Ins.	 Co.	 v.	 Dodge , 426 A.2d 888,	892	(Me. 1981)	(emphasis omitted ).14 [¶23 ]	 	 The	 “ expected	 or	 intended ”	 exclusion	 is likewise foun ded	 in common	sense.		Unexpected	injuries	can result	from	intentional	acts. 6 In	the event	 of	 such	unexpected	injuries,	insurance	coverage	may	well	be	 available (i.e.,	 an	 “ expected	 or	 intended ”	 exclusion	 would	 not	 apply)	 depending	 upon actual	policy	language. [¶24 ]		In	applying	an	“ expected	or	intended ”	exclusion	to	particular	fa cts, a	court	must	make	factual	findings	regarding	an	insured’s	subjective	intent	or expectation	 to	 cause	 injury	 in	 determining	 whether	 an	 insurance	 policy’s intentional	acts	exclusion	is	 triggered.		 In	 this	case,	 the	Superior	C ourt	 found Francoeur’s	 statem ent

— that he	 did	 not	 consider	 the	 consequences	 of	 his actions	 or	 the	 possible	 extent	 of	 injuries	 he	 might	 cause

— to be	 credible. Nonetheless,	 we	 h ave	 concluded	 that	 the	 evidence compelled	 a	 contrary finding,	 namely	 that	 Francoeur	 must	 have	 subjectively	 fore seen	 that	 his conduct	would	result	in	bodily	injury	to	Ben

- Ami. Court’s	Opinion	¶ 17

. [¶25 ]		The	Court	cabins	its	result,	unnecessarily	in	my	view,	to	the	unique facts	of	this	case.		Court’s	Opinion ¶	18 .		I	would	go	further	and	conclude	that

6 For	example,	analyzing	facts	very	similar	to	those	presented	here,	the	Arizona	Court	of	Appeals recognized	the	possibility	that	if	a	person	wh o	strikes	someone	in	the	face	“maintained	that	striking [the	victim]	was	an	accident,	and	that	the	blow	itself	was	unintentional,	summary	judgment	would be	improper	due	to	the	dispute	over	a	material	fact.” Clark	v.	Allstate	Ins.	Co. ,	529	P.2d	1195,	1196 (Ariz.	Ct.	App.	1975).15 this	factua l	scenario

— the	intentional	striking	of	an	unsuspecting	person	in	the face	with	a	closed	fist

— leads	to	a	conclusion	that	as	a	matter	of	law	the	physical injuries	 resulting	 from	 the	 attack	 were	 intended	 and	 expected. The act	 of punching	 someone	 in	 the	 face with	 a	 closed	 fist is simply	 and undeniably inherently	 injurious.	 	 Consequently,	 in	 my	 view,	 the	 “ expected	 or	 intended ” insurance	 policy	 exclusion	 was	 triggered	 as	 a	 matter	 of	 law	 in	 this	 case	 by Francoeur’s	 violent,	inherently	injurious	 assault	 on	 Ben

- Ami ,	 and	 provides	 a sufficient	 basis	 for	 the	 entry	 of	 a	 summary	 judgment	 in	 favor	 of	 Vermont Mutual .		This	approach	is	entirely	consistent	with	the	line	of	cases	in	which	we have	identified	other	specific	acts	as	being	inherently	injurious. 7 [¶26 ]		The	Massa chusetts	Supreme	Judicial	Court,	in	holding	that	the	acts of	rape	and	sexual	assault	are	sufficiently	inherently	injurious	so	as	to	satisfy the	“ expected	or	intended ”	exclusion,	noted	the	comparison	to	the	inherently injurious	act	of	striking	another:
Sexu al	assault	and	rape	are,	in	this	respect,	indistinguishable	from any	 other	 deliberate	 assault	 and	 battery.	 	 The	 act	 of	 striking another	in	the	face	is	one	which	we	recognize	as	an	act	so	certain to	cause	a	particular	 kind	of	harm	 that	we	can	say	a	person	w ho

7 See Landry	 v.	 Leonard ,	 1998	 ME	 241,	 ¶	 9,	 720	 A.2d	 907 (armed	 robbery	 with	 the	 use	 of	 a dangerous	weapon); Mut.	Fire	Ins.	Co.	v.	Hancock , 634	A.2d	1312,	1313	(Me.	1993)	(“a	systematic, hours

- long	brutal	beating”); State	Mut.	 Ins. Co.	v.	Bragg ,	589	A.2d	35,	38	(Me.	1991) (murder	and attempted	murder); Perreault	v.	Me.	Bonding	&	Cas.	Co. ,	568	A.2d	1100,	1101

- 02	(Me.	1990) (sexual abuse	of	a	child).16 performed	the	act	intended	the	resulting	harm,	and	his	statement to	the	contrary	does	nothing	to	refute	that	rule	of	law.
Worcester	Ins.	Co. v. Fells	Acres	Day	Sch.,	Inc. ,	558	N.E.2d	958,	964	(Mass.	1990) (alteration omitted) ( citations omitted) (quotation	marks omitted). [¶27 ]		The,	“I	hit	him	on	purpose,	but	didn’t	intend	to	hurt	him that badly ” excuse	cannot,	as	a	matter	of	common	sense	or	public	policy,	be	invoked	to	shift the	actor’s	personal	responsibility	onto	an	insurer	who	issues	a	gener al	policy indemnifying	 a	 policy holder	 against	 his	 negligent	 acts.	 	 The	 Court’s	 decision today,	 stopping	 short	 of	 joining	 the Landry

- Perr e ault line	 of	 cases, 8 see Court’s Opinion	 ¶	 18 ,	 requires	 the	 trial	 court,	 in	 cases	 involving	 admittedly intentional	 assa ults	 upon	 unsuspecting	 individuals,	 to	 make	 unnecessary findings	regarding	the	actor’s	su bjective	state	of	mind	as	to the	likelihood	and extent	of	the	victim’s	anticipated	injuries.		The	facts	of	such	cases compel

— as	I conclude	here

— a	 finding	 that	 the	acto r	must	have	 subjectively	 foreseen	 that

8 In Landry ,	we	said	that , given	the	defendant’ s	act,	“ it	is	so	highly	likely	that	bo dily	injury [would] result	that	we	will	deem	willing	participation

.	.	. to	be	the	intent	or	expectation	to	cause	the	bodily injury. ”	 	 1998	ME	 241,	 ¶	 9,	 720	 A.2d	907.	 	 Similarly,	in Perreault we	 said	 that	 “[h] arm	 from	 the [plaintiff’s	act] [was] so	highly likely	to	occur	that	the	intent	to	commit	the	act	inherently	carries	with it	the	intent	to	cause	the	resulting	injury. ”		568	A.2d	at	1101.		I	would	apply	the	same	rationale	to Francoeur’s	conduct.17 his	 deliberately	 violent	 conduct	 would	 result	 in	 the	 injury	 that	 proximately resulted	from	the	assault. 9 [¶28 ] This	approach	is	well	in	keeping	with	public	policy.		As	we	stated
in Landry	v.	Leonard : Public policy is also a consideration in reaching [our] conclusion. The general rule is that it is against public policy for insurance to indemnify an insured against his own criminal acts. People who purchase homeowners’ policies do not intend that victims’ injuries caused by convicted robbers during an armed robbery be covered by the robber’s insurance nor do they expect to pay premiums to share in the coverage of such risks. Our	holding	today	is	consistent with	public	policy. 1998	ME	241,	¶	11,	720	A.2d	907 (citation	omitted). [¶29 ] I	 concur	 in	 the	 Court’s	 decision	 vacating	 the	 Superior	 Court’s judgment	 and	 remanding	 for	 a	 judgment	 in	 favor	 of	 Vermont	 Mutual,	 but
I would add	 admittedly	 intentional assaults to	 our	 existing case	 law that impute s intent	and	ex pectation	of	injury	 to	specific	acts and	 the	injuries	 that proximately	result	from	those	acts.

9 The	rule	of	law	that	I	favor,	articulated	in Clark ,	529 P.2d	at	1196

- 97,	is	limited	to	assaults	that are	undeniably	intentional.		As	the	Court	notes, Court’s Opinion	¶	18 n.5,	the crime of	assault	can	be committed	recklessly,	and	recklessness	would	not	provide	the	basis	for	the	intentional	act	exclusion. The	rule	that	I	would	adopt	applies	only	to	intentional	assaults	and	the	injuries	proximately	resulting therefrom.18 James	D.	Poliquin,	Esq. (or ally) ,	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.,	Lewist on,	for	appellee	Jonathan	Ben

- Ami

York	County	Superior	Court	docket	numbers	CV

- 2014

- 22	and

- 194 F OR C LERK R EFERENCE O NLY