Cohne v. Navigators Specialty Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

DAVID COHNE, )

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 17-12540-WGY

NAVIGATORS SPECIALTY INSURANCE )

COMPANY, )

)

Defendant. )

___________________________________)

YOUNG, D.J. February 19, 2019

MEMORANDUM & ORDER

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I INTRODUCTION

David Cohne (“Cohne”) filed suit against Navigators

Specialty Insurance Company (“Navigators”) requesting a

declaratory judgment that Navigators has a duty to defend and to

indemnify him in two actions pending in the Massachusetts

Superior Court sitting in and for the County of Suffolk. Notice

Removal, Ex. B, Pl.’s Compl., ECF No. 1-4. Cohne also alleges

breach of contract, breach of the covenant of good faith and

fair dealing, and violation of Massachusetts General Laws

chapters 93A and/or 176D (“93A/176D”). Id. at ¶¶ 23-40. Cohne

seeks summary judgment on Navigators’ duty to defend. Pl.’s

Mot. Summ. J. Count I (“Pl.’s Mot.”), ECF No. 25; Mem. Supp.

Pl.’s Mot. Summ. J. Count I, ECF No. 26 (“Pl.’s Mem.”).

For the reasons set forth below, this Court declares that

Navigators has no duty to defend, in essence ruling against

Cohne pursuant to Federal Rule of Civil Procedure 56(f)

(authorizing court to enter summary judgment against moving

party under proper circumstances).

A. Procedural History

In November 2017, Cohne filed a complaint against

Navigators in the Massachusetts Superior Court sitting in and

for the County of Suffolk. Pl.’s Compl. Navigators removed the

action to this Court the following month. Notice Removal, ECF

No. 1. Cohne requests a declaratory judgment on Navigators’

duty to defend and to indemnify him and alleges that Navigators

breached its contract, breached the covenant of good faith and

fair dealing, and violated 93A/176D. Pl.’s Compl. ¶¶ 23-40.

In February 2018, Cohne filed a motion for judgment on the

pleadings regarding Navigators’ duty to defend and the parties

fully briefed the issue. Pl.’s Mot. J. Pleadings Count I, ECF

No. 10; Mem. Law Supp. Pl.’s Mot. J. Pleadings Count I, ECF No.

13; Opp’n Def. Pl.’s Mot. J. Pleadings, ECF No. 17; Reply Mem.

Supp. Pl.’s Mot. J. Pleadings Count I, ECF No. 18. After a

motion hearing in March 2018, the Court denied the motion

without prejudice and administratively closed the case to await

the outcome of the underlying state tort cases. Electronic

Clerk’s Notes, ECF No. 20.

On Cohne’s motion, the Court reopened the case in August

2018. Pl.’s Mot. Re-Open Administratively Closed Case, ECF No.

22; Electronic Clerk’s Notes, ECF No. 24. In September 2018,

Cohne filed a motion for summary judgment on Navigators’ duty to

defend, which the parties have now fully briefed. Pl.’s Mot.;

Pl.’s Mem.; Opp’n Def. Pl.’s Mot. Summ. J. (“Def.’s Opp’n”), ECF

No. 34; Pl.’s Reply Mem. Supp. Mot. Summ. J. Count I (“Pl.’s

Reply”), ECF No. 36; Def.’s Sur-Reply Br. (“Def.’s Sur-Reply”),

ECF No. 39. Cohne submitted a statement of undisputed facts,

Local Rule 56.1 Statement Undisputed Facts Supp. Pl.’s Mot.

Summ. J. Count I (“Pl.’s Statement Facts”), ECF No. 32, to which

Navigators responded, Defs.’ Resps. Pl.’s Rule 56.1 Statement

Facts (“Resp. Statement Facts”), ECF No. 35.

On November 29, 2018, this Court heard oral argument on

Cohne’s motion for summary judgment and took it under

advisement. See Electronic Clerk’s Notes, ECF No. 41.

B. Factual Background

On both August 10 and August 19, 2014, the Boston Ballroom

Corporation (“BBC”) employed Cohne as a bouncer at the Royale

Night Club (the “Club”) on Tremont Street in Boston,

Massachusetts. Pl.’s Statement Facts ¶¶ 2-3; Resp. Statement

Facts ¶¶ 2-3; Pl.’s Mem., Ex. 2, Maltacea Compl. ¶¶ 9-10, ECF

No. 26-2. Two lawsuits are pending in the Suffolk County

Superior Court against Cohne and BBC, one brought by Keith

Yianacopolus (“Yianacopolus“) and the other by James Maltacea

(“Maltacea”), for incidents occurring at and near the Club.

Pl.’s Statement Facts ¶¶ 1-4; Resp. Statement Facts ¶¶ 1-4.

Navigators insured BBC from July 2, 2014 through July 2, 2015

pursuant to policy number CE14CGL136160IC (the “Policy”). Pl.’s

Statement Facts ¶ 18; Resp. Statement Facts ¶ 18.

The Yianacopolus Action

In November 2016, Yianacopolus sued Cohne and BBC. Pl.’s

Mem., Ex. 1, Yianacopolus Compl., ECF No. 26-1. He alleged that

in the early morning hours of August 19, 2014, outside the front

door of the Club, Cohne “suddenly,” “without any warning,” and

“without provocation” committed an assault and battery against

him. Id. at ¶¶ 7-10. “A short time later,” Yianacopolus

alleged, Cohne followed him “out onto the street and committed”

a second assault and battery against him, “using a baton as a

weapon.” Id. at ¶ 11. Yianacopolus alleged that Cohne was “at

all times . . . acting within the scope of his employment

duties” and “under the direction and control” of BBC. Id. at ¶¶

12-13.

Yianacopolus brought both a negligence and a civil assault

and battery claim against Cohne. Id. at ¶¶ 15-19, 26-30. In

the negligence claim, Yianacopolus alleged that Cohne’s breach

of his duty to use reasonable care as a doorman caused

Yianacopolus’ injury. Id. at ¶¶ 16-19. Yianacopolus further

alleged that at all relevant times he “exercised reasonable care

for his own safety.” Id. at ¶ 18.

In July 2018, Cohne’s attorneys deposed Yianacopolus.

Pl.’s Mem., Ex. 3, Yianacopolus Dep., ECF No. 26-3. There,

Yianacopolus testified that he entered the Club at around eleven

o’clock p.m. on the night of the incident and consumed alcohol.

Id. at 37:10-24. He stated that at some point “around closing

time” he left. Id. at 51:7-8. He testified that as he was

trying to re-enter the Club to speak with a woman whom he had

met earlier, id. at 53:3-19, 71:11-21, Cohne, who was working at

the door, id. at 58:8-18, “negligently used excessive force” by

“striking [him] in the face,” id. at 64:20-65:18.

During his deposition, Yianacopolus agreed that a bouncer

has an obligation to ensure the safety of patrons of the

establishment for which he works, id. at 65:19-66:8, and

clarified that the basis of his negligence claim is Cohne’s

failure to undertake safer alternatives to keep him out of the

club and his assessment that Cohne used force “above and beyond

what a bouncer should do in that situation,” id. at 67:8-20.

Yianacopolus was not able to provide specific examples of safer

alternatives, but suggested that verbal warnings, which he

claims Cohne failed to provide, would have been better than “his

fist.” Id. at 66:15-70:8.

In May 2018, Cohne provided sworn answers to

interrogatories from BBC about the incident at the core of

Yianacopolus’ complaint. Pl.’s Mem., Ex. 4, Cohne’s Answers

Interrogs. (“Cohne’s Answers”) 3, ECF No. 26-4. Cohne stated

that Yianacopolus “appeared to be intoxicated” when “attempting

to enter the [C]lub by pushing his way through the inside

hallway.” Id. Cohne stated that he began by verbally telling

Yianacopolus not to enter, but Yianacopolus “proceeded to throw

his shoulder into [him] while making threatening remarks.” Id.

Cohne claimed that he then “made physical contact” with

Yianacopolus in a continued effort to prevent him from going

inside, after which “Yianacopolus subsequently threw a punch at

[him].” Id. Cohne stated that at that point he “feared for

[his] own personal safety,” so he again “made physical contact

with [Yianacopolus].” Id.

The Maltacea Action

In July 2017, Maltacea sued Cohne and BBC. Maltacea Compl.

Maltacea alleged that on the early morning of August 10, 2014,

Cohne, while acting as a bouncer of the Club and “in the due

course of his employment . . . without provocation, right, or

reason, struck and beat [Maltacea] with a metal baton and caused

[him] severe physical injuries.” Id. at ¶¶ 9-10. Maltacea’s

complaint against Cohne includes one count of “Negligent and

Excessive Force,” which alleges that Cohne “negligently caused

and did cause a harmful contact with [Maltacea]’s person.” Id.

at ¶¶ 27-31.

Navigators’ Policy

Two parts of the Policy relate to this case: the Commercial

General Liability Coverage Form CG 00 01 04 13 (“CGLC”), Pl.’s

Mem., Ex. 5, Navigators Policy 13-28, ECF No. 26-5, and the

Assault And Battery And Negligent Supervision Limitation

(“Limitation”), id. at 43-44.

The CGLC lays out the situations covered by the Policy.

Id. at 13-28. In relevant part, the CGLC provides the

following:

1. Insuring Agreement

a. We will pay those sums that the insured becomes

legally obligated to pay as damages because of

“bodily injury” or “property damage” to which this

insurance applies. We will have the right and duty

to defend the insured against any “suit” seeking

those damages. However, we will have no duty to

defend the insured against any “suit” seeking

damages for “bodily injury” or “property damage” to

which this insurance does not apply. . . .

b. This insurance applies to “bodily injury” and

“property damage” only if:

1) The “bodily injury” or “property damage”

is caused by an “occurrence” that takes place

in the “coverage territory”; . . .

2. Exclusions . . . This insurance policy does not apply

to:

a. “Bodily injury” or “property damage” expected

or intended from the standpoint of the insured.

This exclusion does not apply to “bodily injury”

resulting from the use of reasonable force to

protect persons or property.

Navigators Policy 13-14.

The CGLC defines an “occurrence” as “an accident, including

continuous or repeated exposure to substantially the same

general harmful conditions.” Id. at 27. The CGLC specifies

that “[t]hroughout this policy the words ‘you’ and ‘your’ refer

to the Named Insured shown in the Declarations, and any other

person or organization qualifying as a Named Insured under this

policy,” and “[t]he word ‘insured’ means any person or

organization qualifying as such under Section II - Who is An

Insured.” Id. at 13. In addition, the Common Policy

Declarations (“Declarations”) refer solely to BBC as a “Named

Insured.” Id. at 3.

The Limitation is an endorsement that changes the general

rule in certain circumstances. Id. at 43-44. In relevant part,

the Limitation provides the following:

I. Except as provided in item II below, this policy

does not apply to “bodily injury,” “property

damage,” or “personal and advertising injury”

arising from:

A. assault and/or battery committed or alleged to

have been committed by any person; or

B. physical assault, abuse, molestation, or

habitual neglect; or licentious, immoral, amoral

or other behavior that was committed or alleged

to have committed by any insured or by any person

for whom any insured is legally responsible; or

C. . . .

D. any act or omission connected directly or

indirectly with the prevention or suppression of

any act indicated in items A through C above

including the protection of persons or property,

whether caused by or at the instigation or

direction of any insured, an insured’s employee,

an insured’s patrons or guests, or volunteers

working for or on behalf of an insured, or any

other person.

This exclusion applies regardless of the legal

theory or basis upon which the insured is alleged

to be legally liable or responsible, in whole or in

part, for any Damages arising out of assault,

battery, physical abuse, and/or sexual abuse,

including but not limited to assertions of improper

or negligent hiring, employment or supervision,

failure to protect the other party, failure to

prevent the assault, battery, physical abuse and/or

sexual abuse, or failure to discharge the employee.

II. Notwithstanding the foregoing, we shall pay up to

the following amounts you become obligated to pay

for all damages and claim expenses which result

from claims or “suits” based on allegations of any

of the acts or omissions in item I above.

$250,000 any one claim or suit.

$250,000 aggregate for the policy period.

Navigators Policy 43.

II. ANALYSIS

Cohne contends that: (1) he is “an insured” under the

Policy; (2) the two underlying complaints state negligence

claims covered by the Policy; and (3) he qualifies as a “Named

Insured,” so even if the Policy would not ordinarily cover the

underlying allegations, they are covered by an exception in

Section II of the Limitation. See Pl.’s Mem. 5-17. Navigators

refutes each of these arguments and contends that they have no

duty to defend Cohne in either action. See generally Def.’s

Opp’n. The Court concludes that Navigators is correct, but

rests on somewhat different reasoning than that Navigators

advances.

A. Standard of Review

A motion for summary judgment shall be granted when “there

is no genuine issue as to any material fact, and . . . the

moving party is entitled to judgment as a matter of law.”

Saunders v. Town of Hull, 874 F.3d 324, 326 (1st Cir. 2017)

(citing Fed. R. Civ. P. 56(c)). A genuine issue of material

fact exists when the evidence is “sufficiently open-ended to

permit a rational factfinder to resolve the issue in favor of

either side.” National Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 735 (1st Cir. 1995). A fact is material when it “has

the potential to change the outcome of the suit.” Calero–Cerezo

v. United States Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.

2004) (citing Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445,

448 (1st Cir. 1997)).

The moving party has the initial burden to show an “absence

of evidence to support the nonmoving party’s case.” Sands v.

Ridefilm Corp., 212 F.3d 657, 661 (1st Cir. 2000) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). When this

is accomplished, the burden of production shifts to the

nonmoving party to set forth specific facts to show that there

is a genuine issue for trial. Quinones v. Houser Buick, 436

F.3d 284, 289 (1st Cir. 2006). The Court must examine the

entire record in the light most favorable to the nonmoving party

and draw all reasonable inferences in her favor. O’Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

B. The Yianacopolus Action1

Cohne is an “Insured” under the Policy

Cohne is an “insured” under the Policy “only for acts

within the scope of [his] employment by [BBC] or while

1 The Yianacopolus action involved two alleged incidents,

one at the Club door and another outside in the street. See

supra section I.B.1. For the purpose of evaluating whether

Navigators has a duty to defend Cohne, the parties and this

Court focus only on the first incident. See Pl.’s Mem. 9;

Def.’s Opp’n 1. Pursuant to the “in for one, in for all” rule

in insurance law, “where an insurer is obligated to defend an

insured on one of the counts alleged against it, the insurer

must defend the insured on all counts, including those that are

not covered.” Mount Vernon Fire Ins. Co. v. Visionaid, Inc.,

477 Mass. 343, 351–52 (2017). Cohne’s own arguments give rise

to an inference that it is unlikely the second alleged incident

performing duties related to the conduct of [BBC].” Navigators

Policy 22. The parties dispute whether Cohne was acting within

the scope of his employment when he committed the alleged

misconduct. See Pl.’s Mem. 6-7; Def.’s Opp’n 3.

Under Massachusetts law, an employee’s conduct falls within

the scope of his employment if it: (1) ”is of the kind he is

employed to perform”; (2) “occurs substantially within the

authorized time and space limits”; and (3) “is motivated, at

least in part, by a purpose to serve the employer.” Wang Labs.,

Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986).

Regarding the first prong, “it is ordinarily the actual and

customary, rather than formally described, duties which

determine scope of employment.” Howard v. Town of Burlington,

399 Mass. 585, 590 (1987). When the employee’s conduct at issue

is a tort, “[t]he question is not whether the employee committed

a tort, but whether he was performing the kind of work he was

hired to perform when he allegedly committed the tort.” Chase

v. United States Postal Serv., Civ. A. No. 12-11182-DPW, 2013 WL

5948373, at *15 (D. Mass. Nov. 4, 2013) (Woodlock, J.).

Here, the alleged assault was committed when Cohne was

performing his duty as a bouncer at the Club’s door to protect

the safety of its patrons, and thus the first Wang Labs. prong

(on the street) could give rise to a viable negligence claim.

See generally Pl.’s Mem.

is met. See 398 Mass. at 859. The second prong is also met

because the alleged assault occurred at the Club where Cohne was

employed, and during his shift. See id.

As to the third prong, “[t]he fact that the predominant

motive of the agent is to benefit himself does not prevent the

act from coming within the scope of employment as long as the

act is otherwise within the purview of his authority.” Id. In

other words, this prong is not satisfied when the employee acted

only “from purely personal motives . . . in no way connected

with the employer’s interests.” Pinshaw v. Metropolitan Dist.

Comm’n, 402 Mass. 687, 694 (1988) (quoting W. L. Prosser & W. P.

Keeton, Prosser & Keeton on the Law of Torts 506 (5th ed.

1984)).

Even if Cohne had harbored personal animus against

Yianacopolus when he resorted to force against him, a reasonable

factfinder would be hard-pressed to conclude that Cohne was not

motivated at least in part by a purpose to serve the Club when

he committed the alleged assault. See Chase, 2013 WL 5948373,

at *16 (specifying that even if the employee who committed the

tort has been “concerned primarily with” his personal interest,

the third prong of the Wang Labs. test is met). Thus, the third

prong is also met here.

The offensive nature of an intentional tort does not

necessarily place it outside of an employee’s scope of

employment. See, e.g., McIntyre ex rel. Estate of McIntyre v.

United States, 545 F.3d 27, 38-47 (1st Cir. 2008) (upholding

district court’s determination that FBI agent acted within scope

of his employment when he revealed informant’s name to another

FBI source (a gang leader), leading to informant’s murder);

Mangino v. United States, Civ. A. No. 05-12251-GAO, 2006 WL

2033196, at *3 (D. Mass. July 19, 2006) (O’Toole, J.) (rejecting

argument that doctor’s alleged fraud was outside scope of his

employment because he was not hired to commit fraud, and

observing that Massachusetts law recognizes employer liability

for employees’ negligence and intentional torts).

For an assault to be within the scope of employment, there

is an additional required showing that “the employee’s assault

was in response to . . . conduct which was presently interfering

with the employee’s ability to successfully perform his duties.”

Miller v. Federated Dep’t Stores, Inc., 364 Mass. 340, 350

(1973). Assaults in this context “constitute acts committed

within the scope of employment, in that they stem from and

directly relate to the frustration of the ability to perform on

the assignments for which the employee is presently

responsible.” Id.

Here, the alleged assault2 occurred when Yianacopolus

demanded entry into the Club. Pl.’s Statement Facts ¶¶ 15-17;

Resp. Statement Facts ¶¶ 15-17. Yianacopolus’ demand interfered

with Cohne’s ability to perform his duty to protect the Club and

prevent unauthorized access. See Pl.’s Mem. 10. Cohne’s action

was in direct response to this interference. Pl.’s Statement

Facts ¶¶ 15-17; Resp. Statement Facts ¶¶ 15-17. Therefore,

Cohne acted within the scope of his employment when committing

the alleged assault. See Commonwealth v. Jerez, 390 Mass. 456,

461–63 (1983) (holding employee’s alleged intentional tort in

response to interference with his exercise of his functions fell

within his scope of employment).

Navigators’ argument that Cohne’s assault was not related

to BBC’s business is unavailing. Navigators directs the Court’s

attention to Dilenno v. 25th Hour Inc., Civ. A. No. 92-3063-RPP,

1994 WL 3413, at *1 (S.D.N.Y. Jan. 5, 1994). Def.’s Opp’n 3.

In this case, a New York district court upheld a jury finding

that a bouncer’s battery against a would-be patron was outside

the scope of his employment. Dilenno, 1994 WL 3413, at *1.

2 Because an employee’s conduct requires an additional

showing to be within the scope of employment if it was

intentional, see Miller, 364 Mass. at 350-51 (holding that

employee’s assault is only in scope of employment if it was in

response to “conduct which was presently interfering with the

employee’s ability to perform his duties successfully”), the

Court assumes without deciding that Cohne assaulted

Yianacopolus.

Multiple factors not present here led the court to conclude that

the jury verdict was reasonable, including that the bouncer had

“been provoked by plaintiff’s actions and racist remarks and

that he was a considerable distance away from the entrance” of

the club when the assault occurred. Id.

In the Yianacopolus action, Cohne is an “insured” under the

Policy because he acted within the scope of his employment when

committing the first alleged assault.

Applicability of the Policy to the Claims in the

Underlying Yianacopolus Complaint

a. The Standard Governing Duty to Defend

Under Massachusetts law, “[t]he legal standards governing

an insurer’s duty to defend are slightly different than those

conventionally applied to a motion for summary judgment.”

Metropolitan Prop. & Cas. Ins. Co. v. Devlin, 95 F. Supp. 3d

278, 281 (D. Mass. 2015) (Saris, J.). A court ought hold on

summary judgment that an insurer has a duty to defend an insured

if “the allegations in the third-party complaint are reasonably

susceptible of an interpretation that they state or adumbrate a

claim covered by the policy terms.” Trustees of Tufts Univ. v.

Commercial Union Ins. Co., 415 Mass. 844, 847 (1993). “The duty

to defend is determined based on the facts alleged in the

complaint, and on facts known or readily knowable by the insurer

that may aid in its interpretation of the allegations in the

complaint.” Ferreira v. Chrysler Grp. LLC, 468 Mass. 336,

342(2014) (quoting Metropolitan Prop. & Cas. Ins. Co. v.

Morrison, 460 Mass. 352, 357(2011)). A duty to defend attaches

when the underlying complaint shows, “through general

allegations, a possibility that the liability claim falls within

the insurance coverage.” Billings v. Commerce Ins. Co., 458

Mass. 194, 201 (2010). It is not necessary “that the facts

alleged in the complaint specifically and unequivocally make out

a claim within the coverage.” Id.

An insurer has no obligation to defend “when the

allegations in the underlying complaint lie expressly outside

the policy coverage and its purpose.” Herbert A. Sullivan, Inc.

v. Utica Mut. Ins. Co., 439 Mass. 387, 395-96 (2003) (internal

citations and quotations omitted) (citing Timpson v.

Transamerica Ins. Co., 41 Mass. App. Ct. 344, 347 (1996)).

b. Consideration of Extrinsic Evidence

As a threshold matter, this Court must determine whether to

consider evidence extrinsic to the underlying complaint because

Cohne’s argument that Yianacopolus provoked him relies on

Cohne’s Answers to Navigators’ interrogatories. Pl.’s Mem. 8-9.

Navigators urges the Court not to consider this extrinsic

evidence, contending that it impermissibly contradicts the

Yianacopolus complaint. Def.’s Sur-reply 2-3. This Court

disagrees.

The Yianacopolus complaint brings both a negligence and an

assault and battery claim against Cohne. Yianacopolus Compl. ¶¶

15-19, 26-30. The complaint alleges that outside the front door

of the Club, Cohne committed an assault and battery against

Yianacopolus, which was “undertaken suddenly,” “without any

warning,” and “without provocation.” Id. at ¶¶ 5, 7-10.

Yianacopolus’ deposition testimony supplements these facts,

alleging that Cohne “negligently used excessive force” by

“striking [Yianacopolus] in the face” when trying to keep him

out, and clarifies that the basis of his negligence claim is

Cohne’s failure to undertake safer alternatives to keep him out

of the club. Yianacopolus Dep. 64:20-69:21.

Cohne’s answers, however, tell a different story. Cohne

stated that it was Yianacopolus who first threw his shoulder

into Cohne and made threatening remarks. Cohne’s Answers 3.

Cohne stated that Yianacopolus then threw punches at him before

Cohne “made physical contact” with Yianacopolus to prevent him

from entering the Club and in fear for his personal safety. Id.

These allegations contradict the Yianacopolus complaint, which

allege that the plaintiff did not provoke Cohne. Yianacopolus

Compl. ¶ 10.

Massachusetts courts may use extrinsic facts to aid their

interpretation of underlying complaints, but “not as independent

factual predicates for a duty to defend.” Open Software Found.,

Inc. v. United States Fid. & Guar. Co., 307 F.3d 11, 15 (1st

Cir. 2002) (interpreting Massachusetts law). Extrinsic facts

are used to “add substance and meaning to skeletal claims only

adumbrated in the complaint.” Id. at 16. Courts are aware of

the risk that extrinsic facts could be “misused by insureds

seeking to transform a skeletal claim in the underlying

complaint into an allegation arguably covered by the liability

policy but unrelated to an actual claim in the complaint.” Id.

An insured may not, “in the absence of a complaint that requires

coverage, force its insurer to defend the insured by simply

telling the insurer facts which would create coverage.” Boston

Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass.

7, 15 (1989).

Cohne, relying substantially on House of Clean, Inc. v. St.

Paul Fire & Marine Ins. Co., 705 F. Supp. 2d 102 (D. Mass. 2010)

(Gorton, J.), argues that the Court ought consider the answers

because they “add substance and meaning to [the] complaint’s

skeletal allegations.” Pl.’s Reply 4. In House of Clean, the

insurance policy excluded the discharge of pollutants in routine

business activities but provided an exception to cover those

pollutants that discharged in a “sudden and accidental” way.

705 F. Supp. 2d at 106 (internal citations and quotations

omitted). The underlying complaint alleged that the insured

released contaminants but did not contain any details showing

the release could have been sudden and accidental. Id. at 107-

09. The court in that case rejected the insurance company’s

contention that the court ought not consider evidence that

pollution was sudden and accidental because it came only in the

form of “the biased affidavits of” the insured. Id. at 108.

Acknowledging that the insured’s affidavit “must be carefully

scrutinized for bias,” the court held that such extrinsic facts

added substance to the underlying claims and created a factual

dispute as to whether the release was “sudden and accidental.”

Id. at 109. Navigators attempts to distinguish House of Clean

by arguing that the additional information in that case

supplemented the underlying plaintiff’s complaint, while here

the answers contradict Yianacopolus’ version of the facts.

Def.’s Sur-reply 2-3.

House of Clean, Inc. is analogous to the case at bar.

Although “an insurer must give consideration to facts outside

the complaint [only] when it considers the allegations in the

complaint to determine if coverage exists,” Boston Symphony

Orchestra, 406 Mass. at *15, this Court identifies no law

explicitly prohibiting consideration of extrinsic evidence when

such evidence contradicts facts alleged in the underlying

complaint, and Navigators does not proffer any precedent that

draws this technical distinction. Just as there is a risk that

an insured could easily create coverage by simply denying the

allegations in the complaint and coming up with a contradictory

narrative, as Navigators argues, Def.’s Sur-Reply 2, there is

also a risk that the underlying plaintiffs could exclude

information that is “potentially detrimental to their claims,

such as an admission that [Yianacopolus] provoked Cohne,” Pl.’s

Reply 5.

It would be unduly preferential to Navigators for this

Court to give no consideration to Cohne’s Answers. “[U]ntil

there is an unalterable determination as to the nature of the

underlying claim, any declaration of rights concerning the

insurer’s duty to defend cannot be conclusive.” Lumbermens Mut.

Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 686 (1990).

Therefore, this Court exercises its discretion to consider the

extrinsic evidence that Yianacopolus attacked Cohne before Cohne

resorted to force.

That said, at this stage, the Court is in no position to

weigh the evidence as to provocation. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary

judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.”). As a result,

whether Yianacopolus provoked Cohne remains a fact under genuine

dispute. Nonetheless, this fact is not material to the Court’s

determination on Navigators’ duty to defend because, regardless

of provocation, at least one of the Policy’s exclusions apply.

c. General Applicability of the Policy

The CGLC section of the Policy provides liability coverage

for an “occurrence,” which is an “accident.” Navigators Policy

13, 27. “Accident,” by definition, “implies the unexpected.”

Smartfoods, Inc. v. Northbrook Prop. & Cas. Co., 35 Mass. App.

Ct. 239, 242 (1993). Massachusetts courts construe the word

“accident” broadly in the insurance context. See Quincy Mut.

Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984) (noting that

“the resulting injury which ensues from the volitional act of an

insured is still an ‘accident’ within the meaning of an

insurance policy if the insured does not specifically intend to

cause the resulting harm or is not substantially certain that

such harm will occur”). In other words, the “occurrence”

provision excludes from coverage harm caused by the insured if

the insured intended not only the harm-causing act, but the harm

itself. See id.

The Policy itself corroborates this interpretation, as the

CGLC specifies that it does not apply to bodily injury “expected

or intended from the standpoint of the insured.” Navigators

Policy 14. Nonetheless, the CGLC carves out an exception to

this general exclusionary rule, stating that “[t]his exclusion

does not apply to ‘bodily injury’ resulting from the use of

reasonable force to protect persons or property.” Id.

d. Applicability of the Limitations

The Policy’s Limitation section further expands the scope

of those injuries excluded from the Policy’s coverage. The

Limitation states that the Policy neither applies to injuries

arising from assault and battery committed “by any person,” nor

to acts connected with the prevention or suppression of assault

or battery, even when such acts are intended to protect persons

or property. Id. at 43. The First Circuit acknowledges that:

[A]n endorsement or rider attached to an insurance

policy becomes and forms a part of the contract; that

the policy and the endorsement or rider shall be

construed together; and that where the provisions in the

body of the policy and those in the endorsement or rider

are in irreconcilable conflict the provisions contained

in the endorsement or rider will prevail over those

contained in the body of the policy.

National Union Fire Ins. Co. v. Lumbermens Mut. Cas. Co., 385

F.3d 47, 55 (1st Cir. 2004) (internal citations and quotations

omitted). Here, the Limitation is attached to the Policy and is

intended to modify the CGLC. See Navigators Policy 43 (“This

endorsement modifies insurance provided under the following:

Commercial General Liability Coverage Part”). Thus, the

Limitation supersedes the CGLC when the provisions conflict.

e. Applying the Policy to Yianacopolus’ Claims

This Court first assumes that Yianacopolus initially

attacked Cohne before Cohne responded with force. At first

glance, it appears that this provocation renders Cohne’s conduct

eligible for coverage under the Policy. See id. at 14 (carving

out injuries “resulting from the use of reasonable force to

protect persons or property” from bodily injury exclusion). The

Limitation, however, squarely excludes coverage for injuries

arising from Cohne’s conduct, because there is little doubt that

Yianacopolus’ alleged provocation was an assault. See id. at 43

(excluding from coverage “any act . . . connected directly or

indirectly with the prevention or suppression of” an assault).

Although the Limitation renders the reasonable force

exception in the CGLC meaningless in this case, this Court gives

priority to the plain meaning of the Policy. See Certain

Interested Underwriters at Lloyd’s v. Stolberg, 680 F.3d 61, 69

(1st Cir. 2012) (“Massachusetts law dictates that we follow the

plain language of the policy, even though some terms may be

rendered redundant or superfluous in particular instances.”);

see also Ardente v. Standard Fire Ins. Co., 744 F.3d 815, 819

(1st Cir. 2014) (“[The] label [‘redundancy’] surely is not a

fatal one when it comes to insurance contracts . . . where

redundancies abound.”) (alterations in original) (quoting TMW

Enters. v. Federal Ins. Co., 619 F.3d 574, 577 (6th Cir. 2010)).

This is particularly so when a redundancy does not render one

provision completely frivolous. Certain Interested

Underwriters, 680 F.3d at 67-68. Here, there still exist

imaginable circumstances where the use of reasonable force to

protect persons or property would not relate to the prevention

or suppression of the intentional acts listed in items A through

C of Limitation’s section I, see Navigators Policy 43, such as

during natural disasters.

Moreover, although the Limitation has a broader scope of

exclusion than those that exclude only injuries resulting from

assault and battery, the Policy still covers plenty of negligent

conduct, and the Policy is not void as a matter of public

policy. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715,

723 (2012) (“A policy is not illusory simply because it contains

a broad exclusion, so long as it provides coverage for some

acts.”); Bagley v. Monticello Ins. Co., 430 Mass. 454, 459

(1999) (“[W]here there were other instances in which coverage

would still be provided under the policy,” the policy was not

illusory even when, “as a practical matter, application of the

provision resulted in very limited coverage.”) (citing Smart v.

Safety Ins. Co., 419 Mass. 144, 147-48 (1994)). As a result,

the Policy does not cover Cohne’s use of force in response to

Yianacopolus’ alleged physical provocation. Accordingly, if

Yianacopolus provoked Cohne, Navigators does not have a duty to

defend.

If Yianacopolus did not provoke Cohne, this Court’s

conclusion on Navigators’ duty to defend stands. Section I,

item A of the Limitation excludes from coverage injuries arising

from assault and battery committed “by any person.” Navigators

Policy 43. Section I further notes that “[t]his exclusion

applies regardless of the legal theory or basis upon which the

insured is alleged to be legally liable or responsible, [i]n

whole or in part, for any Damages arising out of assault [and]

battery.” Id. Massachusetts courts read the phrase “arising

out of” expansively, interpreting it as falling “somewhere

between proximate and ‘but for’ causation -- an intermediate

causation standard.” Brazas Sporting Arms, Inc. v. American

Empire Surplus Lines Ins. Co., 220 F.3d 1, 7 (1st Cir. 2000);

see also Bagley, 430 Mass. at 457 (specifying that phrase

“arising out of” incorporates “a greater range of causation than

that encompassed by proximate cause under tort law” and

“suggest[s] a causation more analogous to ‘but for’ causation”).

Moreover, it is well-established in Massachusetts that

“[i]t is the source from which the [underlying] plaintiff’s

personal injury originates rather than the specific theories of

liability alleged in the complaint which determines the

insurer’s duty to defend.” Bagley, 430 Mass. at 458 (emphasis

in original) (quoting New England Mut. Life Ins. Co. v. Liberty

Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996)). Thus, the

key inquiry, assuming no provocation, is whether Yianacopolus’

negligence claim against Cohne has an independent factual basis.

Cohne, relying mainly on Preferred Mut. Ins. Co. v. Gamache

(“Gamache”), 42 Mass. App. Ct. 194 (1997) (vacating summary

judgment for insurer because ambiguity in policy’s intentional

act exclusion meant claimant’s allegations were reasonably

susceptible of an interpretation covered by the policy), argues

that Yianacopolus’ negligence claim is reasonably susceptible of

an interpretation covered by the Policy because his intent to

injure Yianacopolus is disputed. Pl.’s Mem. 7-9. Cohne argues

that negligence liability arises precisely because of the nature

of his employment as a bouncer and, consequently, a denial of

coverage “would be inconsistent with the reasonable expectations

of the parties and would render the coverage afforded to Cohne

illusory.” Id. at 9-10. Navigators emphasizes that in Gamache,

the insured’s intent to cause harm was disputed, see 42 Mass.

App. Ct. at 201, while here, the Court can infer Cohne’s intent

as matter of law. Def.’s Opp’n 4. Navigators is correct that

this distinction is dispositive.

Assuming now that there was no provocation, the relevant

factual basis is that Cohne committed an assault and battery

outside the Club door -- “suddenly,” “without any warning,” and

“without provocation” -- against Yianacopolus, Yianacopolus

Compl. ¶¶ 9-10, and Cohne “negligently used excessive force” by

“striking [Yianacopolus] in the face,” Yianacopolus Dep. 58, 61-

65. These allegations describe only intentional acts of assault

and battery and could not give rise to negligence liability.

Although Cohne contends that his intent to harm is disputed,

“[t]he 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 who 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., 408 Mass. 393, 400 (1990); see also Liberty Mut.

Fire Ins. Co. v. Casey, 91 Mass. App. Ct. 243, 246–47 (2017)

(noting that “[i]ntent to injure has been inferred as a matter

of law in only a few” situations and recognizing striking

someone in the face as one such situation). Thus, the Court

infers, as matter of law, that the harm here is intentional.

Using the word “negligently” to modify “used excessive

force” does not render intentional conduct negligent. Lewis v.

City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001)

(“[I]t is not possible to have a cause of action for ‘negligent’

use of excessive force because there is no such thing as the

‘negligent’ commission of an ‘intentional’ tort.”) (internal

citation omitted); see also District of Columbia v. Chinn, 839

A.2d 701, 707 (D.C. 2003) (stating that for an unwanted touching

“which escalates in an unbroken manner into excessive force, the

cause of action is a battery alone”); City of Miami v. Sanders,

672 So. 2d 46, 47 (Fla. Dist. Ct. App. 1996) (“If excessive

force is used in an arrest, the ordinarily protected use of

force by a police officer is transformed into a battery.”).

Therefore, all the harms derive from Cohne’s assault and

battery; Yianacopolus’ negligence claim does not have an

independent factual basis. See Doe v. Liberty Mut. Ins. Co.,

423 Mass. 366, 371 (1996) (holding that there is no duty to

defend for a “negligence claim which is premised on the same

acts which are contended to be the basis of an intentional

sexual misconduct claim”); United Nat’l Ins. Co. v. Parish, 48

Mass. App. Ct. 67, 70(1999) (“[W]ithout the underlying assault

and battery, there would have been no personal injuries and,

therefore, no basis for a suit against the insured for

negligence.”); New England Mut. Life Ins. Co., 40 Mass. App. Ct.

722, 727 (1996) (determining that there is no duty to defend

against a negligence claim when there would have been no

injuries without the underlying illegal acts omitted from

coverage by exclusionary clause).

Cohne references Gamache to show how a dispute over intent

to harm can give rise to a duty to defend. Pl.’s Mem. 7-8.

This reference is inapposite because, in Gamache, the insured

was intoxicated and thus his “mental capacity to form the

requisite intent [was] a disputed material issue.” Gamache, 42

Mass. App. Ct. at 201. Here, the Court may infer Cohne’s intent

to harm as matter of law. Although the Massachusetts Appeals

Court noted in Gamache that “[i]nferring intent to injure as

matter of law” is only recognized in a few enumerated

situations, id. at 200, it has clarified in a more recent case,

Casey, that striking another in the face belongs on this list,

91 Mass. App. Ct. at 246-48.

As a result, even assuming no provocation, Yianacopolus’

negligence claim derives from Cohne’s assault and battery and

lacks an independent factual basis. This claim is thus barred

from coverage by item A of the Limitation’s section I.

In sum, the parties’ factual dispute as to provocation is

immaterial because the Policy’s Limitation excludes

Yianacopolus’ claims against Cohne in either instance.

Cohne Is Not a “Named Insured” under Section II

of the Limitation

Cohne further attempts to rely on section II of the

endorsement as an exception. See Pl.’s Mem. 15-17. This

section states that Navigators will pay up to $250,000 that “you

become obligated to pay for all damages and claim expenses which

result from claims or ‘suits’ based on allegations of any of the

acts or omissions” in section I. Navigators Policy 43 (emphasis

added). Section I includes assault, battery, and acts or

omissions connected with the protection of persons or property,

types of conduct normally excluded from the Policy’s coverage.

Id. The CGLC provides that “[t]hroughout this policy the words

‘you’ and ‘your’ refer to the Named Insured shown in the

Declarations, and any other person or organization qualifying as

a Named Insured under this policy.” Id. at 13. Cohne seeks to

bring the underlying complaint back under the coverage of the

Policy by arguing there is ambiguity in the contract and that he

ought qualify as a “Named Insured.” Pl.’s Mem. 10-17; Def.’s

Opp’n 7-11.

In Massachusetts, “contract interpretation is a question of

law for the court unless the contract is ambiguous.” Nicolaci

v. Anapol, 387 F.3d 21, 26 (1st Cir. 2004). Under Massachusetts

law, contract “[l]anguage is only ambiguous ‘if it is

susceptible of more than one meaning and reasonably intelligent

persons would differ as to which meaning is the proper one.’”

Barclays Bank PLC v. Poynter, 710 F.3d 16, 21 (1st Cir. 2013)

(quoting Lass v. Bank of America, N.A., 695 F.3d 129, 134 (1st

Cir. 2012)). “Ambiguity is not created merely because the

litigants disagree about the meaning of a contract.” Farmers

Ins. Exch. v. RNK, Inc., 632 F.3d 777, 783 (1st Cir. 2011)

(quoting Nicolaci, 387 F.3d at 26). When contracts are free

from ambiguity, they are “interpreted according to their plain

terms” and a court construes “all words according to their usual

and ordinary sense.” Poynter, 710 F.3d at 21 (internal

citations and quotations omitted).

Here, there is no ambiguity in the language of the

Limitation. The Policy clearly defines “you” as referring to

both “Named Insured shown in the Declarations” and “any other

person or organization qualifying as a Named Insured under the

policy.” Navigators Policy 13. At the outset of the Policy,

the Declarations clearly define BBC as a “Named Insured.” Id.

at 3. There is no other provision in the policy that provides

for entities other than BBC to qualify as a “Named Insured.”

See generally id. at 1-54. The fact that the Declarations name

only BBC signifies that “you” refers only to BBC.

Courts in this and other jurisdictions have found ambiguity

as to whether endorsements that add coverage for an “additional

insured” qualify the “additional insured” as a Named Insured.

See, e.g., Marathon Ashland Pipe Line LLC v. Maryland Cas. Co.,

243 F.3d 1232, 1241-42 (10th Cir. 2001); Wyner v. North Am.

Specialty Ins. Co., 78 F.3d 752, 755-57 (1st Cir. 1996). This

Court has identified no instances in this circuit in which a

court has found an insurance policy ambiguous because it defined

the term “you” to refer to both the Named Insured and any other

person or organization qualifying as a Named Insured without

specifying additional entities that would so qualify. Indeed,

courts in a number of cases have found no ambiguity where a

Policy refers to “you” just as here, not defining “Named

Insured,” and not qualifying any entity as a “Named Insured”

besides the one listed in the Declarations. See Michigan

Millers Mut. Ins. Co. v. Asoyia, Inc., No. 3:11-00006-CFB, 2013

WL 11616466, at *11 (S.D. Iowa Nov. 6, 2013) (“‘Named Insured’

is a term of art specific to the policy, wholly separate from

‘insureds’ of classes (e.g., employees) that are covered by

virtue of their relationship to the Named Insured.”), aff’d, 793

F.3d 872 (8th Cir. 2015); Chet Morrison Contractors, LLC v. One

Beacon Am. Ins. Co., 132 F. Supp. 3d 825, 831 (E.D. La. 2015)

(“Although ‘named insured’ is not further defined in the

contract, the term’s meaning is abundantly clear: the Policy’s

declarations page lists Offshore Marine Contractors as the only

named insured on the Policy.”); EMC Ins. Cos. v. Mid-Continent

Cas. Co., 884 F. Supp. 2d 1147, 1156–57 (D. Colo. 2012)

(determining that “Named Insured” “clearly and unambiguously”

refers to the Named Insured shown in the declarations when “no

other provision in the policy, nor any other endorsement or

amendment, speaks to qualifying as a ‘Named Insured” or adds a

‘Named Insured.’”)). Since there is no ambiguity in the text of

the Navigators Policy, this Court reads “you” to refer only to

BBC.

This construction is the most consistent with other Policy

provisions. For example, the CGLC provides in section II, “WHO

IS AN INSURED,” that “your ‘volunteer workers’ . . . or your

‘employees’” could count as an insured for “acts within the

scope of their employment by you.” Navigators Policy 21-22.

Such provisions only cohere when “you” excludes employees like

Cohne. Also, section I of the CGLC provides that Navigators

will “pay those sums that the insured becomes legally obligated

to pay as damages because of ‘bodily injury’ or ‘property

damage’ to which this insurance applies.” Id. at 13 (emphasis

added). The fact that “the insured” is used in this provision,

rather than “you” as in section II of the Limitation, suggests

that “the insured” and “you” are distinct. Compare id. 21-22

with id. at 13.

Cohne argues that “you” includes him because the word

“Limitation” indicates it “only reduces the policy limits and

does not preclude all coverage for the enumerated claims.”

Pl.’s Mem. 11-13. This argument lacks support. All the cases

Cohne cites on this point are from other jurisdictions and

relate to policies with provisions specifying that the

limitations merely set an upper cap for their coverage of

certain claims. See Gemini Ins. Co. v. Earth Treks, Inc., 260

F. Supp. 3d 467, 483-85 (D. Md. 2017) (“Sexual Abuse and

Molestation” endorsement applied to claims against insured but

limited coverage to $100,000), aff’d, 728 F. App’x 182 (4th Cir.

2018); First Mercury Ins. Co. v. Sudderth, 72 F. Supp. 3d 1328,

1331 (N.D. Ga. 2014) (“Assault and Battery Endorsement” set

coverage limitation of $100,000 for all insured entities for

claims for bodily injury or property damage arising out of

assault or battery); North E. Ins. Co. v. Masonmar, Inc., Civ.

A. No. 1:13-364 AWI SAB, 2014 WL 1247604, at *1 (E.D. Cal. Mar.

25, 2014) (“Assault and Battery Limitation” to Commercial

General Liability Policy limited coverage to $100,000 for all

insureds for claims resulting from assault and battery);

American Safety Indem. Co. v. Loganzo, 967 N.Y.S.2d 417, 418

(App. Div. 2013) (granting declaratory judgment for insurer that

assault and battery endorsement’s $100,000 limitation applied to

battery claims against insured bar).

Cohne’s argument that excluding him from definition of

“you” would lead to an unreasonable result and render coverage

for him illusory is also unavailing because the Policy still

covers negligence claims against him. See Surabian Realty, 462

Mass. at 722.

Consequently, Cohne is not a “Named Insured” and section II

of the Limitation does not bring the underlying allegations

under the Policy’s coverage. Navigators does not owe Cohne a

duty to defend in the Yianacopolus action.

C. The Maltacea Action

Maltacea alleges, and Cohne does not contest, that Cohne

“without provocation, right, or reason, struck and beat

[Maltacea] with a metal baton and caused [him] severe physical

injuries.” Maltacea Compl. ¶¶ 9-10; see generally Pl.’s Mem.

The analysis here is similar to that in the Yianacopolus action.

First, there are insufficient facts for this Court to

determine whether Cohne is an “insured.” Although the facts on

which the parties agree seem to satisfy the first and second

Wang Labs. prongs, as the incident occurred at the Club during

Cohne’s shift, see Maltacea Compl. ¶¶ 9-10, the parties have

supplied insufficient information for the Court to determine

whether the facts also satisfy the third Wang Labs. prong and

the Miller requirement. As the Court cannot conclude as matter

of law that Cohne’s actions toward Maltacea were within the

scope of his employment, this Court declines to grant summary

judgment for Cohne regarding Navigators’ duty to defend in this

action.

Second, even if Cohne was within the scope of his

employment for the Maltacea incident, the Maltacea allegations

are excluded by item A of the Limitation’s section I. Although

Maltacea brought a negligence claim against Cohne, the facts

alleged point to an assault, see Maltacea Compl. ¶¶ 9-10.

Following the same rationale as detailed in the corresponding

part of the analysis of the Yianacopolus action, there is no

independent factual basis for the negligence claim.

Third, following the Court’s reasoning as to the

Yianacopolus action, Cohne does not qualify as a “Named

Insured,” so Section II of the Limitation does not bring

Maltacea’s allegations back under the Policy’s coverage.

In sum, Navigators does not owe a duty to defend Cohne in

the Maltacea action.

III. CONCLUSION

For the foregoing reasons, this Court DENIES Cohne’s motion

for summary judgment, ECF No. 25, and declares that Navigators

has no duty to defend Cohne in either the Yianacopolus or the

Maltacea action. As the parties requested, this case will be

administratively closed to await the outcome of those actions.

At that time, any party may reopen this action should further

proceedings appear necessary.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE