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SJC-13308

DORCHESTER MUTUAL INSURANCE COMPANY vs. LEONARD MIVILLE & 

others.1

Norfolk. January 4, 2023. – March 16, 2023.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, 

& Georges, JJ.

Insurance, Homeowner's insurance, Construction of policy, 

Insurer's obligation to defend, Coverage. Declaratory 

Relief. Words, "Physical abuse."

Civil action commenced in the Superior Court Department on 

June 19, 2017.

The case was heard by Rosemary Connolly, J., on a motion 

for summary judgment.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Ryan P. Gilday for Leonard Miville.

John P. Graceffa (Lawrence M. Slotnick also present) for 

the plaintiff.

1 Kim Brengle, Laurence Brengle, and William Brengle.
2

LOWY, J. Once again, we are presented with the question 

whether, under the terms of a homeowners' insurance policy,

certain conduct by an insured constitutes "physical abuse" 

thereby precluding coverage under a policy exclusion exempting 

coverage for "[b]odily injury . . . arising out of sexual 

molestation, corporal punishment or physical or mental abuse." 

In Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 439-440 

(2020) (Krusell), we concluded that the term "physical abuse" as 

used in an identical policy exclusion -- commonly referred to as 

the abuse and molestation exclusion -- was ambiguous.

Interpreting the exclusion through the lens of an objectively 

reasonable insured, we concluded that "physical abuse" applies

"to a limited subset of physically harmful treatment, where the 

treatment is characterized by an 'abusive' quality such as a 

misuse of power or, perhaps, conduct so extreme as to indicate 

an abuser's disposition towards inflicting pain and suffering." 

Id. at 446. Because the conduct in that case –- a single push 

by the insured –- contained no such "abusive" quality, we held 

that the abuse and molestation exclusion did not preclude

coverage. Id.

In this case, the insured, William Brengle, initiated an 

unprovoked attack on Leonard Miville by punching him in the head 

and repeatedly kicking him after he had fallen, causing Miville 

to sustain serious injuries. In this action for declaratory 
3

relief, Dorchester Mutual Insurance Company (Dorchester Mutual) 

filed a motion for summary judgment arguing that, under the 

terms of a homeowners' insurance policy it issued to Brengle's 

parents, the abuse and molestation exclusion exempted coverage 

for claims arising out of the incident because the conduct

constituted "physical abuse" under our holding in Krusell, 485 

Mass. at 446. A judge in the Superior Court agreed and granted 

summary judgment in favor of Dorchester Mutual.

We conclude that the term "physical abuse," in the context 

of the abuse and molestation exclusion, requires an imbalance or 

misuse of power attendant to the physically harmful conduct. 

Because the attack here was not achieved by capitalizing on or 

exploiting an imbalance of power, it does not fall within the 

meaning of "physical abuse" as it is used in the abuse and 

molestation exclusion. Therefore, the abuse and molestation 

exclusion does not exempt coverage in these circumstances, and 

the summary judgment in favor of Dorchester Mutual on this basis 

is reversed.

Background. 1. Underlying incident. The following facts 

are undisputed. At approximately 5:45 A.M. on November 22, 

2016, Miville, age sixty-one, parked his truck outside the home 

of his girlfriend, Jennifer Barrett, to drive her to work. When 

Barrett did not answer her telephone, Miville got out of his 

truck and walked to her front door. Brengle, age thirty, lived 
4

with his parents in the home next to Barrett's and was outside 

on his front porch when Miville arrived. After receiving no 

response when he knocked on Barrett's front door, Miville stood 

on the sidewalk between the two homes looking up to Barrett's 

bedroom window. Brengle stood on the side of his porch and 

yelled at Miville, "F you, what are you doing here?" Miville 

responded that he was Barrett's boyfriend and that he and 

Brengle had met previously. Brengle, however, continued yelling 

at Miville, ordering him to leave the area and calling him evil.

Miville told Brengle to "keep it down" so he would not wake 

the neighbors. Suddenly, Brengle jumped off the porch and 

punched Miville in the "left eye and cheek." Miville fell to 

the ground, hitting his head on the sidewalk. Brengle proceeded 

to kick Miville in the jaw, clavicle, and leg. Miville recalled 

asking Brengle to stop, but at some point, he lost consciousness

and next remembered awaking to the police asking him questions.

Miville sustained serious injuries, including a fractured 

cheek and orbital bone. Brengle was charged with assault and 

battery on a person sixty years of age or older, and assault and 

battery by means of a dangerous weapon (shod foot) on a person 

age sixty or older; he later pleaded guilty to those charges.

2. The policy. Dorchester Mutual issued a homeowners' 

insurance policy to Brengle's parents for the period of April 

25, 2016, through April 25, 2017. The policy provided personal 
5

liability coverage for claims "brought against an 'insured' for

damages because of 'bodily injury' or 'property damage' caused 

by an 'occurrence' to which this coverage applies." "Insured" 

is defined by the policy as the policyholders and the "residents 

of [the policyholders'] household who are . . . relatives."2 

"Occurrence" is defined as "an accident, . . . which results, 

during the policy period, in: . . . '[b]odily injury.'"

The policy contained multiple exclusions from personal 

liability coverage, including the abuse and molestation 

exclusion, which excluded coverage for "'[b]odily injury' . . . 

arising out of sexual molestation, corporal punishment or 

physical or mental abuse." "Physical abuse" is not defined in 

the policy.

3. Prior proceedings. After the incident, Miville sent a 

claim letter to Dorchester Mutual seeking coverage under 

Brengle's parents' homeowners' insurance policy for the injuries 

he sustained. Dorchester Mutual denied coverage. Thereafter, 

Miville commenced an action against Brengle and his parents, 

asserting claims of negligence and assault and battery against 

Brengle and negligent supervision claims against Brengle's 

parents.

2 It is undisputed that Brengle was an insured under the 

policy.
6

Dorchester Mutual commenced this action seeking a judgment 

declaring that, under the terms of the policy, it had no duty to 

defend or indemnify Brengle or his parents for the personal 

injury claims brought against them by Miville.3 Dorchester 

Mutual filed the present motion for summary judgment, asserting 

that Brengle's conduct constituted "physical abuse" under the 

terms of the abuse and molestation exclusion. Thus, Dorchester 

Mutual argued, Miville's injuries were not covered by the 

policy, and it had no duty to defend or indemnify Brengle or his 

parents. The judge agreed and granted judgment in Dorchester 

Mutual's favor. Miville appealed.

In an unpublished memorandum and order pursuant to its rule 

23.0, a panel of the Appeals Court reversed, concluding that the 

incident did not amount to "physical abuse" under Krusell, 485 

Mass. at 446, because it lacked the necessary "'abusive' 

quality" and, therefore, fell outside the policy exclusion. See 

Dorchester Mut. Ins. Co. v. Brengle, 100 Mass. App. Ct. 1133

3 Dorchester Mutual's original complaint sought a 

declaration that coverage was barred for the claims against 

Brengle under two policy exclusions: (1) the intentional acts 

exclusion and (2) the abuse and molestation exclusion. 

Dorchester Mutual subsequently amended its complaint to include 

Brengle's parents as defendants. The amended complaint sought a 

declaration that coverage was precluded for the claims against 

Brengle's parents under the abuse and molestation exclusion. On 

summary judgment, only the abuse and molestation exclusion was 

at issue. We therefore express no opinion in this appeal on the 

applicability of the intentional acts exclusion to Miville's

claims against Brengle.
7

(2022). We allowed Dorchester Mutual's application for further 

appellate review.

Discussion. 1. Standard of review. "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 judgment as a matter of law." Krusell, 485 Mass. at 

435, quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991). "We review decisions allowing summary judgment 

de novo." Krusell, supra.

2. Interpretation of insurance policies. "The 

interpretation of an insurance policy is a question of law." 

City Fuel Corp. v. National Fire Ins. Co. of Hartford, 446 Mass.

638, 640 (2006). "Like all contracts, an insurance policy is to 

be construed according to the fair and reasonable meaning of its 

words." Id. We consider the language of an insurance policy as 

a whole, "without according special emphasis to any particular 

part over another," Surabian Realty Co. v. NGM Ins. Co., 462 

Mass. 715, 718 (2012), and where possible, giving meaning and 

effect to every word, see Masonic Temple Ass'n of Quincy v.

Patel, 489 Mass. 549, 554 (2022) (Patel).

"If free from ambiguity, an exclusionary clause, like all 

other provisions of an insurance contract, must be given its 

usual and ordinary meaning." Hakim v. Massachusetts Insurers' 
8

Insolvency Fund, 424 Mass. 275, 281 (1997). However, "[a]ny

ambiguities in the language of an insurance contract are 

interpreted against the insurer who used them and in favor of 

the insured." Allmerica Fin. Corp. v. Certain Underwriters at 

Lloyd's, London, 449 Mass. 621, 628 (2007). "This rule of 

construction applies with particular force to exclusionary 

provisions." Id., quoting Hakim, supra at 282.

While "[a]n insured bears the initial burden of proving 

that the claimed loss falls within the coverage of the insurance 

policy," once that burden has been met, "the burden then shifts 

to the insurer to show that a separate exclusion to coverage is 

applicable to the particular circumstances of the case." 

Boazova v. Safety Ins. Co., 462 Mass. 346, 351 (2012). "When in 

doubt as to the proper meaning of a term in an insurance policy, 

we 'consider what an objectively reasonable insured, reading the 

relevant policy language, would expect to be covered.'" 

Krusell, 485 Mass. at 437, quoting Metropolitan Prop. & Cas.

Ins. Co. v. Morrison, 460 Mass. 352, 362 (2011).

3. Interpretation of "physical abuse" in abuse and 

molestation exclusion. In Krusell, 485 Mass. at 432-433, we 

were called to interpret the term "physical abuse," in an 

identical abuse and molestation exclusion, to determine whether 

the exclusion precluded coverage where a twenty-three year old 
9

insured pushed a sixty-two year old man, causing the latter to 

fall and sustain serious, permanent injuries.

Guided by our principles of interpretation, we first 

considered whether the words "physical abuse," as used together 

in the policy, were ambiguous. Although it was clear that the 

term "physical" referred to "of or pertaining to the body," 

Krusell, 485 Mass. at 438, quoting Webster's New Universal 

Unabridged Dictionary 1461 (2003), the plain meaning of "abuse," 

and varying courts' interpretations of the term, revealed that 

it was susceptible to two diverging meanings: the first, 

connoting "any conduct whatsoever that causes physical harm," 

and the second, contemplating "a subset of physically harmful 

conduct characterized by an 'abusive' quality, such as an 

imbalance of power." Krusell, supra at 439. See Citation Ins.

Co. v. Gomez, 426 Mass. 379, 381 (1998) ("A term is ambiguous 

only if it is susceptible of more than one meaning and 

reasonably intelligent persons would differ as to which meaning 

is the proper one").

Concluding that the term "physical abuse" was ambiguous, we 

turned to the insured's reasonable expectations as to coverage, 

looking specifically to the language of the policy, the history 

of abuse and molestation exclusions, and cases, statutes, and 

regulations in which conduct had or had not been characterized 

as "abuse." Krusell, 485 Mass. at 440-446. These sources led 
10

us to conclude that "a reasonable insured would interpret 

'physical abuse' to apply only to a limited subset of physically 

harmful treatment, where the treatment is characterized by an 

'abusive' quality such as a misuse of power or, perhaps, conduct 

so extreme as to indicate an abuser's disposition towards 

inflicting pain and suffering." Id. at 446.

In this case, both parties agree that, because "physical 

abuse" is not defined by the policy, our conclusion in Krusell, 

485 Mass. at 446, as to how a reasonable insured would interpret 

"physical abuse" within the meaning of the abuse and molestation 

exclusion controls. They disagree on the application of that 

interpretation to these facts.

Miville argues that the incident here was not "physical 

abuse" because there was no power imbalance between Brengle and 

himself, and the incident was not "so extreme" as to reflect 

Brengle's disposition to inflict pain and suffering. Krusell, 

485 Mass. at 446. Dorchester Mutual, however, contends that the 

incident possessed both "abusive" qualities mentioned in 

Krusell, supra. Specifically, Dorchester Mutual maintains that, 

because Brengle was thirty years old and Miville was over sixty 

years old at the time of the incident, this age difference 

coupled with Miville's "advancing years" demonstrated a physical 

power imbalance between the two. Additionally, Dorchester 

Mutual argues that the incident was both violent and unprovoked, 
11

such that Brengle's disposition to inflict pain and suffering 

can be inferred from his conduct.

a. Policy language. In Krusell, 485 Mass. at 440-446, we 

considered an imbalance or misuse of power to be the 

distinguishing feature that transforms physically harmful 

conduct to "physical abuse." Beginning with the language of the 

policy, we reasoned that an interpretation of "physical abuse" 

as any physically harmful conduct, as opposed to conduct with an 

abusive quality like a misuse of power, would render superfluous 

the terms "sexual molestation" and "corporal punishment," as 

both are forms of physically harmful conduct. Id. at 440. See 

Patel, 489 Mass. at 554 ("if possible, 'every word in a policy 

should be given meaning'" [citation omitted]). Moreover, we 

observed that a broad interpretation of "physical abuse" 

seemingly would encompass accidental conduct causing physical 

harm, which would undermine the basic purpose of purchasing a 

homeowners' insurance policy. See Krusell, supra. See also

Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986)

("Clearly, the manifest design of homeowners' insurance is to 

protect homeowners from risks associated with the home and 

activities related to the home").

Most persuasive of an interpretation requiring an element 

of power, however, is the term's location within the policy --

the primary source from which a reasonable insured would glean 
12

its meaning. Immediately preceding the term "physical abuse" in 

the abuse and molestation exclusion are the terms "sexual 

molestation" and "corporal punishment." As we observed, 

"[w]ords are, at least in part, defined by the company they 

keep." Krusell, 485 Mass. at 440. Although "sexual 

molestation" and "corporal punishment" are not defined by the 

policy, both forms of conduct generally involve an imbalance or 

exploitation of power between the perpetrator and the victim. 

See Black's Law Dictionary 1204 (11th ed. 2019) (defining 

"molestation" as "[t]he act of making unwanted and indecent 

advances to or on someone, esp[ecially] for sexual 

gratification"); Webster's Third New International Dictionary 

510 (2002) (defining "corporal punishment" as "punishment 

administered by an adult [as a parent or a teacher] to the body 

of a child ranging in severity from a slap to a spanking"). See 

also Commonwealth v. Dorvil, 472 Mass. 1, 9, 10 n.3 (2015) 

(discussing corporal punishment in context of parent physically 

disciplining child); Commonwealth v. Helfant, 398 Mass. 214, 227 

(1986) ("sexual molestation" where doctor entered homes of young 

patients, injected them with Valium, and sexually assaulted them 

while they were "physically and mentally unable to express 

resistance").

While the term "physical abuse" divorced from context may 

be susceptible to multiple interpretations, under the 
13

interpretive principle of noscitur a sociis, its meaning in the 

policy is limited by the terms it accompanies.4 See People for 

the Ethical Treatment of Animals, Inc. v. Department of Agric.

Resources, 477 Mass. 280, 287 (2017), quoting Commonwealth v.

Hamilton, 459 Mass. 422, 432 (2011) ("the canon of noscitur a 

sociis . . . counsels that 'ordinarily the coupling of words 

denotes an intention that they should be understood in the same 

general sense'"); Commonwealth v. Gallant, 453 Mass. 535, 542

(2009), quoting H.J. Alperin & L.D. Shubow, Summary of Basic Law 

§ 19.10, at 846 (3d ed. 1996) ("The principle of noscitur a 

sociis . . . suggests 'that a word gains meaning from others 

with which it is associated'"); Cluff v. Mutual Benefit Life 

Ins. Co., 13 Allen 308, 316 (1866), S.C., 99 Mass. 317 (1868)

(applying maxim of noscitur a sociis to interpretation of

insurance policy). Thus, looking solely at the language of the 

policy, it appears evident that "physical abuse," like "sexual 

molestation" and "corporal punishment," refers to conduct 

achieved by capitalizing on or exploiting an imbalance of power.

4 Noscitur a sociis means "it is known by its associates"

(citation omitted). People for the Ethical Treatment of 

Animals, Inc. v. Department of Agric. Resources, 477 Mass. 280, 

287 (2017). This canon of construction is a broader formulation 

of the canon of ejusdem generis, which means "of the same kind 

or class" (citation omitted). Id. See Commonwealth v. Gallant, 

453 Mass. 535, 542 (2009).
14

b. History of abuse and molestation exclusion. This more

narrow interpretation of physical abuse requiring a power 

element is supported further by the context in which the abuse 

and molestation exclusion originated. In the early 1980s, a 

surge of sexual abuse claims arose against clergy members within 

the Roman Catholic Church. See Bartley, The Liability Insurance 

Regulation of Religious Institutions After the Catholic Church 

Sexual Abuse Scandal, 16 Conn. Ins. L.J. 505, 505-510 (2010). 

Litigation surrounding insurance coverage for these and other 

similar claims soon erupted. See id. at 517-529. See also 

Swisher & Mason, Liability Insurance Coverage for Clergy Sexual 

Abuse Claims, 17 Conn. Ins. L.J. 355, 360, 368-375 (2010). A 

majority of States, including Massachusetts, determined that 

sexual abuse claims brought against an accused abuser were not

covered by the terms of an accused's liability policy that 

excluded coverage for expected or intended bodily injury. See 

Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 

398 n.6, 401-403 (1990), and cases cited ("intent to injure may 

be inferred from the intentional commission of an inherently 

injurious act such as forcible sexual abuse").

Many victims, then, also sought recovery from the 

organizations responsible for employing or supervising those 

accused of sexual abuse under theories of negligent supervision

or negligent hiring. See Krusell, 485 Mass. at 441, citing 
15

Bartley, 16 Conn. Ins. L.J., at 517-518, 530. "Because the 

basis for such claims was the negligent conduct of a third 

party, rather than the intentional conduct of the alleged 

abuser, existing policy exclusions for intentional acts were 

insufficient to shield insurers from coverage obligations." 

Krusell, supra. It was against this backdrop that insurance 

companies included abuse and molestation exclusions in their 

policies.

In 1987, the Insurance Services Office, Inc., promulgated

the abuse and molestation exclusion as a form endorsement for 

insurers to include in their general liability policies as a 

means to preclude coverage for all claims arising out of abuse 

or molestation. See Valley Forge Ins. Co. v. Field, 670 F.3d 

93, 97 (1st Cir. 2012). The exclusion was to be "used with 

'[o]rganizations that have care or custody of others -- schools, 

hospitals, nursing homes, day care centers, etc.'" Id., quoting 

Harper vs. Gulf Ins. Co., U.S. Dist. Ct., No. 01-CV-201-J (D.

Wyo. Dec. 20, 2002). See D.S. Malecki & D.D. Thamann, 

Commercial General Liability Coverage Guide 203 (11th ed. 2015)

("This [abuse and molestation exclusion] endorsement is utilized 

by underwriters in those instances where the possibility of 

abuse and molestation is relatively high, such as day care 

centers, pre-school institutions, juvenile centers, and 

municipalities"). Relying on the abuse and molestation 
16

exclusion, insurers repeatedly and successfully have fended off 

claims from "medical or therapeutic care providers, health care 

centers, summer camps, schools and preschools, job training 

programs, churches, and the like" facing allegations of 

negligence in allowing those in their care, custody, or control 

to have been abused or molested. Valley Forge Ins. Co., supra

at 98, and cases cited.

In sum, the origin of the abuse and molestation exclusion 

is particularly telling. In adopting this exclusion, insurers' 

"rationale was to shield themselves from liability for abuse or 

molestation claims where they unexpectedly could not rely upon 

the intentional acts exclusion to preclude coverage" due to 

theories by which these claims were brought as a result of the 

institutional nature in which they arose.5 Krusell, 485 Mass. at

443.

c. Cases, statutes, and regulations. Our review of cases, 

statutes, and regulations in Krusell, 485 Mass. 443-446, also 

5 In Krusell, we also noted a second set of circumstances in 

which the abuse and molestation exclusion is often relied on by 

insurers due to the inadequacy of the intentional acts 

exclusion: specifically, "where a claim generally would be 

brought directly against an abuser, but the abuser is deemed 

incapable of intentional conduct by virtue of a mental disease 

or defect." Krusell, 485 Mass. at 441-442. "Even though, 

ordinarily, abuse is intentional conduct, in such a situation 

the abuser's inability to act with intent renders the 

intentional acts exclusion inapplicable." Id. at 442. Again, 

we do not address the applicability of the intentional acts 

exclusion to the conduct in this case. See note 2, supra.
17

demonstrated that an element of power was key to physical abuse. 

We specifically noted that cases where insurers successfully 

have relied on the abuse and molestation exclusion to exempt

coverage for "'physical abuse' generally involve[d] more than 

mere physical harm."6 Id. at 443 & 445 n.23. By contrast, cases 

where the exclusion did not exempt coverage distinguished 

violent conduct lacking an exploitation of power from "physical

abuse." Id. at 444. See, e.g., Riley v. Maison Orleans II, 

Inc., 829 So. 2d 479, 491 (La. Ct. App. 2002) ("Physical abuse, 

as opposed to simple assault, is generally the act of a person 

6 Although, in Krusell, we relied on Merrimack Mut. Fire 

Ins. Co. v. Ramsey, 117 Conn. App. 769, 772-773 (2009), and 

Miglino v. Universal Prop. & Cas. Ins. Co., 174 So. 3d 479, 481-

482 (Fla. Dist. Ct. App. 2015), as example cases where the 

conduct constituted "physical abuse" because the claims involved 

domestic violence, which we noted "often involves an imbalance 

of power," Krusell, 485 Mass. at 443-444, upon reflection, it is 

not clear that the conduct in those cases would fall within the 

interpretation we afford the term "physical abuse," as it is 

properly understood within the meaning of the abuse and 

molestation exclusion. Rather, it appears that both 

jurisdictions interpret "physical abuse" more broadly than we 

do. Indeed, we specifically recognized in Krusell, supra at 

439, that, contrary to our interpretation of the term, the court 

in Miglino, supra at 481, considered "physical abuse" to be any 

"physical . . . maltreatment." Further, in Merrimack Mut. Fire 

Ins. Co., supra at 773, the court's conclusion that the stabbing 

between romantic partners "clearly constituted physical abuse

within the language of the policy" focused on the conduct 

involved, and not the imbalance of power. And, as discussed 

infra, the Appellate Court of Connecticut later concluded in 

General Ins. Co. of Am. v. Okeke, 182 Conn. App. 83, 99, 101-103 

(2018), that a fifteen year old's act of stabbing his elderly 

neighbor was "physical abuse" within the meaning of the abuse 

and molestation exclusion, treating Merrimack Mut. Fire Ins. 

Co., as dispositive.
18

in control, dominance, or authority who misuses his [or her]

position to harm or mistreat a person over whom he [or she]

exercises such control. The act of one nursing home resident 

attacking a fellow resident is not abuse because the element of 

control is lacking").

To be sure, in a footnote in Krusell, we acknowledged a 

second line of "cases where insurers successfully relied upon an 

abuse and molestation exclusion" to preclude coverage based on 

"conduct that implies that the abuser is cruel or inhumane, that 

is, disposed to inflict pain or suffering." Krusell, 485 Mass.

at 444 n.22, citing Auto-Owners Ins. Co. v. American Cent. Ins.

Co., 739 So. 2d 1078, 1080-1082 (Ala. 1999); General Ins. Co. of 

Am. v. Okeke, 182 Conn. App. 83, 101-103 (2018) (Okeke). This 

footnote apparently led to our statement in dicta that a 

reasonable insured would interpret "physical abuse" to apply to 

a limited subset of physically harmful conduct, "such as . . .

perhaps, conduct so extreme as to indicate an abuser's 

disposition towards inflicting pain and suffering" (emphasis 

added). Krusell, supra at 446.

It is worthy of note, however, that in at least one of 

those cases, there was a discernible misuse of power in carrying

out the "physical abuse." In Auto-Owners Ins. Co., 739 So. 2d 

at 1080-1082, it was alleged that leaders of a fraternity forced

a fraternity pledge to "dig a ditch and jump into it after it 
19

had been filled with water, urine, feces, dinner leftovers, and 

vomit"; receive "paddlings to his buttocks"; be "pushed and 

kicked, often into walls, pits, and trash cans"; and "'run[] the 

gauntlet,' during which the pledges were pushed, kicked, and hit 

as they ran down a hallway and down a flight of stairs." While 

an element of power was not as prominent in Okeke, 182 Conn.

App. at 90, 100-101, where the conduct involved a fifteen year 

old insured attacking, beating, and stabbing his elderly female 

neighbor inside her residence, that court's interpretation of 

the term "physical abuse" expressly differs from our own. 

Contrary to our view, the court in Okeke concluded that the 

conduct there could not "plausibly be considered anything other 

than 'physical abuse,'" specifically rejecting the argument that 

the term "physical abuse," as used in an abuse and molestation 

exclusion, was ambiguous. See id.

Statutes and regulations in the Commonwealth confirm that 

the term "physical abuse" implies an imbalance or misuse of 

power. Our review of those sources in Krusell revealed that 

"[t]he term routinely has been applied to conduct causing harm 

to a vulnerable type of victim, where the alleged abuser may be 

responsible for the vulnerable individual's care." Krusell, 485 

Mass. at 445. See, e.g., G. L. c. 265, § 13K (a 1/2) (abuse of 

elder); G. L. c. 265, § 23 (rape and abuse of child). See also 

103 Code Mass. Regs § 491.13 (2017) (grievance process for abuse 
20

of inmates in correctional facility); 105 Code Mass. Regs 

§ 155.003 (2017) (defining abuse of medical patients or 

residents in context of long-term care facilities); 118 Code 

Mass. Regs § 2.02 (2021) (defining abuse of persons with 

disabilities).

We therefore clarify that, for conduct to constitute 

"physical abuse" as a reasonable insured would understand the 

term when reading the language of the abuse and molestation

exclusion and the policy as a whole, the conduct must involve an 

imbalance or misuse of power in addition to being physically 

harmful. Although we suggested in Krusell, 485 Mass. at 446, 

that perhaps there might be circumstances where the extremity of 

conduct may itself render physically harmful conduct "abusive," 

our examination of the policy language and other relevant 

sources leads us to conclude that a reasonable insured would 

interpret extreme physically harmful conduct to constitute

"physical abuse" only where it also embraces a power component.

d. Application. Here, although Brengle's attack on 

Miville was unprovoked and inexplicable, it did not involve an 

exploitation or misuse of power. Dorchester Mutual's argument 

that, due to the thirty-one year age gap between Brengle and 

Miville and Miville's "advancing years," there was a physical 

power imbalance that rendered the attack "physical abuse" is 

unavailing. Indeed, a starker age gap existed in Krusell, where 
21

the insured was twenty-three years old and the victim was sixtytwo years old, and we had little trouble concluding that no 

"'abusive' quality" such as a "misuse of power" existed. 

Krusell, 485 Mass. at 433, 446. As a result, a reasonable 

insured would not expect the abuse and molestation exclusion to 

preclude coverage for the incident here.

Conclusion. The summary judgment in favor of Dorchester 

Mutual is reversed, and the matter is remanded for further 

proceedings consistent with this opinion.

So ordered.