Bucci v. Essex Insurance Co.

United States Court of Appeals
For the First Circuit

No. 04-1619
No. 04-1664

BENJAMIN A. BUCCI, Individually and as Assignee of
N.E.C.N., Inc. d/b/a The Industry,

Plaintiff, Appellant/Cross-Appellee,

v.

ESSEX INSURANCE COMPANY,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

James D. Poliquin, with whom Thomas S. Marjerison, Lance E.
Walker, and Norman, Hanson & DeTroy, LLC were on brief, for
Benjamin A. Bucci.
Jonathan M. Dunitz, with whom Michelle Allott and Friedman,
Gaythwaite, Wolf & Leavitt were on brief, for Essex Insurance
Company.

January 5, 2005
 LYNCH, Circuit Judge. Benjamin Bucci was injured in an

attack outside a Portland, Maine nightclub called The Industry. In

state court, he sued the club and then settled with it, taking an

assignment of the club's claims against its insurer, Essex

Insurance Company ("Essex"). A stipulated judgment was entered

against The Industry. Before settling with Bucci, the club had

asked Essex to defend and to indemnify it; Essex declined both

requests. Essex disclaimed coverage, based on an exclusion in the

policy for "any claim, suit, cost or expense arising out of assault

and/or battery" ("assault/battery exclusion").

Bucci, individually and as assignee of The Industry, then

sued Essex in a state case; the case was removed to federal court.

Bucci won on his claim that Essex had a duty to defend on a motion

for partial summary judgment. After a bench trial, Bucci lost on

the claim that Essex had a duty to indemnify. Each side appeals.

Essex's appeal from the award on breach of its duty to

defend primarily involves whether Maine has adopted a "but for"

interpretation of an assault/battery exclusion, and whether Bucci

was properly awarded attorney's fees for being forced to bring the

claim for breach of the duty.

Bucci's appeal from the denial of his indemnity claim

raises interesting issues under Maine law and a subsidiary federal

evidence law issue. The first has to do with whether under Maine

law an insurer that has violated its duty to defend is limited in

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presenting a defense that it nonetheless had no duty to indemnify.

Bucci argues that he was rendered unconscious instantaneously, and

absent evidence from a witness to the attack, the insurer, which

bears the burden on the exclusion, cannot prove there was a

battery, that is, a hitting with the intent to cause harm. In

support, Bucci also argues that the court erred under Fed R. Evid.

803(4) by considering evidence from Bucci's medical records.

We reject both parties' arguments. Each side was given

a conscientious and fair hearing by the district judge, who

committed no errors of law, and we affirm the judgment.

I.

The facts and the history of the proceedings are based on

the record and the district court's two opinions in this case,

Bucci v. Essex Ins. Co., 287 F. Supp. 2d 75 (D. Me. 2003) ("Bucci

I"), and Bucci v. Essex Ins. Co., 323 F. Supp. 2d 84 (D. Me. 2004)

("Bucci II").

On the night of December 22-23, 2000, Bucci was waiting

in line outside The Industry, a nightclub in Portland, Maine, when

an unknown assailant hit him on the back of the head. Bucci II,

323 F. Supp. 2d at 86. He remembers the first blow to the back of

his head, but then lost consciousness. Id. With the exception of

one split second in the ambulance, he has no memory of what

happened after that first blow until he arrived at the hospital.

Id. at 87. He cannot describe the assailant. Id. Bucci suffered

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significant injuries to his face and required reconstructive

surgery. His medical records from December 23, 2000 indicate that

he was "hit," "kicked," and "punched" in the face. Id.

In early 2001, Bucci notified The Industry that he

intended to sue it for his injuries. The Industry was insured at

the time under a standard commercial general liability ("CGL")

policy issued by Essex. Bucci I, 287 F. Supp. 2d at 77. The

Industry requested that Essex defend and indemnify it under the

terms of the CGL policy. Id. On June 29, 2001, Essex denied it

had any duty to defend or to indemnify The Industry based on the

assault/battery exclusion in the policy:

The coverage under this policy does not apply
to any claim, suit, cost or expense arising
out of assault and/or battery, or out of any
act or omission in connection with the
prevention or suppression of such acts,
whether caused by or at the instigation or
direction of any Insured, Insured's employees,
patrons or any other person. Nor does this
insurance apply with respect to any charges or
allegations of negligent hiring, training,
placement or supervision.

Id.

Bucci then filed suit against The Industry in Maine

Superior Court. In his complaint, Bucci alleged the following:

10. While waiting in line at the club, the
Plaintiff was viciously attacked by a person
known to agents and employees of the
Defendant.
11. The Plaintiff was repeatedly kicked in
the head by a person known to agents and
employees of the Defendant causing serious

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 permanent injuries that required surgery and
hospitalization.
12. Despite this vicious assault, employees
and agents of the Defendant failed to take
reasonable measures to assist the Plaintiff or
to prevent the assault on the Plaintiff.
13. Following this vicious assault, agents
and employees of the Defendant assisted the
individual who assaulted the Plaintiff by
telling him to run inside The Industry to
avoid the Portland Police Officers responding
to the assault.

The complaint asserted legal claims for negligence, negligent

security, negligent supervision and training, negligent infliction

of emotional distress, concerted action, spoliation of evidence,

and punitive damages. The Industry forwarded a copy of the

complaint to Essex and again requested defense and indemnity.

Essex again denied the request on August 29, 2001.

On July 17, 2002, Bucci and The Industry, each

represented by counsel, settled the underlying action and

stipulated to a judgment of $200,000. Id. In consideration for an

agreement by Bucci not to execute $193,000 of the judgment against

The Industry, The Industry assigned its rights under the insurance

policy to Bucci. Id. Thus, The Industry paid Bucci only $7,000.

The Industry also incurred $8,800 in attorney's fees for its

defense of the action. On July 23, 2002, the state trial court

entered judgment pursuant to the parties' stipulations.

Bucci also successfully put in a claim to the Maine

Victim's Compensation Board, asserting he was the victim of a

violent crime.

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 On March 6, 2003, Bucci filed a complaint in Maine state

court against Essex, alleging that Essex was in breach of its

contract with The Industry by violating its duties to defend and to

indemnify The Industry against Bucci's suit, and that Essex had

engaged in unfair settlement practices. Bucci sought to recover

$200,000, the amount of the stipulated judgment entered against The

Industry, plus attorney's fees, costs, and interest. On April 7,

2003, Essex removed the case to the U.S. District Court for the

District of Maine.1

Bucci and Essex each moved for partial summary judgment

on the issue of whether Essex violated its duty to defend. On

October 23, 2003, the district court granted Bucci's motion for

partial summary judgment and denied Essex's motion. Bucci I, 287

F. Supp. 2d at 76. The district court determined that the

assault/battery exclusion did not exclude claims for bodily injury

resulting from conduct occurring after an alleged assault. Id. at

79. Because Bucci's complaint in the underlying action included

allegations of The Industry's conduct which purportedly caused

Bucci injury after the alleged assault, the district court held

that Essex did violate its duty to defend The Industry under the

insurance policy. Id. The posture of the case at that point was

1
Federal diversity jurisdiction under 28 U.S.C § 1332 exists
in this case since Bucci is a citizen of Maine and Essex is a
Delaware corporation with its principal place of business in
Virginia, and the amount in controversy exceeds $75,000.

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that if there were a duty to indemnify, it had to arise from

conduct by The Industry after the assault. The court left for

trial the determination of whether Essex violated the separate duty

to indemnify and the amount of damages for the violation of the

duty to defend. Id. at 80.

At the half-day bench trial conducted on December 5,

2003, the central issue was whether all of Bucci's injuries

resulted from the attack and so fell within the policy's

assault/battery exclusion. Brian Hanson, the president of The

Industry, testified about the history of the law suit by Bucci

against The Industry and Essex's refusal to defend the suit.

Kimberly Payne, a senior claims examiner at Essex, testified that

she denied the request to defend after she received the notice of

claim and spoke with Hanson's counsel, Hanson himself, and Bucci's

counsel on June 29, 2001. From the information contained in the

notice of claim and the conversations, she determined that Bucci's

injuries were precluded from coverage by the assault/battery

exclusion in the policy. She also testified that after Bucci

commenced the suit against The Industry, The Industry sent a copy

of the complaint to her. And on August 29, 2001, after consulting

local counsel, she again denied coverage based on her determination

that the assault/battery exclusion precluded coverage. She

testified that while Essex did not have an official definition for

the terms "assault and battery" used in the exclusion, she

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understood it to mirror the civil definition for the tort of

"assault and battery" in the state in which the claim arises, that

is, "an intentional hitting or striking or harm in some way"

(emphasis added).

Bucci also testified, describing in detail the nature of

his injuries, the medical treatment he required, and what he could

remember of the events on the night of December 22-23, 2000. Bucci

replied "no" when asked if he was disputing that he was assaulted

outside The Industry. Bucci testified that he remembered being hit

"[i]n the back of the head" by the unknown assailant. He also said

that he knew he lost consciousness and that the ambulance crew

"tr[ied] pretty hard to get [him] awake and [he] remember[ed] a

split second being in the ambulance." Bucci testified that after

he woke up in the hospital, he "knew that [his] face was broken. .

. . [He] was in shock and [he] was severely cold and [he] needed

blankets and [was] extremely confused as to what happened." He

explained that his face "was caved in and everything over here was

pushed in, everything over here and on this side was broken."

Bucci testified that his jaw was broken and he could not eat

anything or talk. Bucci testified that he could not tell whether

the physical injuries he suffered resulted from the assault. He

testified that he had never told a health care provider that his

injuries were caused by anything other than the assault.

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 On April 8, 2004, the district court issued its rulings.

See Bucci II, 323 F. Supp. 2d at 86. The district court found that

all of Bucci's injuries resulted from the attacker's actions, and

not from later conduct by The Industry. Id. at 91-92. Thus, the

district court held that Essex did not violate its duty to

indemnify The Industry because the entire stipulated judgment in

the underlying state tort action was based on injuries for which

coverage was excluded. Id. at 92. In addition, the court awarded

$7,000 to Bucci (as The Industry's assignee) as damages for Essex's

violation of its duty to defend, as well as "reasonable attorney

fees" attributable to his claim for Essex's violation of the duty

to defend.2 Id.

Both parties filed timely appeals to this court. We

address them in turn.

II. Essex's Appeal

A. Essex's Violation of the Duty to Defend

Essex contends that the district court erred when it held

that Essex violated the duty to defend the underlying action

because the complaint contained claims for injuries resulting from

The Industry's conduct after the attack. See Bucci I, 287 F. Supp.

2d at 79. Specifically, the court applied the Maine rule of

2
According to the settlement agreement between Bucci and The
Industry, The Industry is entitled to the first $7,000 of any
amount that Bucci may recover from Essex to reflect The Industry's
payment of $7,000 to Bucci.

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construction that any ambiguity must be construed against the

insurer. Id. at 79. The court either found no ambiguity, and/or

ruled that assuming the exclusion was ambiguous, it must be read

against Essex. See id.

We review the district court's finding that Essex had a

duty to defend de novo both because it was resolved on summary

judgment and because under Maine law "[w]hether an insurer has an

obligation to defend its insured against a complaint is a question

of law." Elliott v. Hanover Ins. Co., 711 A.2d 1310, 1312 (Me.

1998) (citing N. Sec. Ins. Co. v. Dolley, 669 A.2d 1320, 1322 (Me.

1996)). Further, the question of whether there is an ambiguity in

the contract is itself a conclusion of law, reviewed de novo.

Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir. 2003); Geyerhahn v.

U.S. Fidelity & Guar. Co., 724 A.2d 1258, 1261 (Me. 1999).

Maine has consistently adhered to a pleading comparison

test to determine whether there is a duty to defend; that is, Maine

resolves the question of "whether there exists a duty to defend .

. . by comparing the complaint with the terms of the insurance

contract." Elliott, 711 A.2d at 1312; see Found. for Blood

Research v. St. Paul Marine and Fire Ins. Co., 730 A.2d 175, 177

(Me. 1999) ("It is black letter law in [Maine] that an insurer's

duty to defend is determined by comparing the allegations in the

underlying complaint with the provisions of the insurance

policy."). This is the case even when the undisputed facts show

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the injury in question was not covered by the policy. Elliott, 711

A.2d at 1312.

Under this comparison test, the insurer has a duty to

defend if the underlying complaint discloses a "potential or a

possibility" for liability within the policy's coverage. Id.

(emphasis added). Significantly, "[t]he duty to defend is broader

than the duty to indemnify, and an insurer may have to defend

before it is clear whether there is a duty to indemnify."

Commercial Union Ins. Co. v. Royal Ins. Co., 658 A.2d 1081, 1083

(Me. 1995). Maine requires that insurance policies be "interpreted

most strongly against the insurer." Baybutt Constr. Corp. v.

Commercial Union Ins. Co., 455 A.2d 914, 921 (Me. 1983), overruled

on other grounds, Peerless Ins. Co. v. Brennon, 564 A.2d 383 (Me.

1989). "Any ambiguity must be resolved in favor of a duty to

defend." Mass. Bay Ins. Co. v. Ferraiolo Constr. Co., 584 A.2d

608, 609 (Me. 1990).

Essex argues that the phrase "arising out of assault

and/or battery" in the policy should be read broadly and urges us

to adopt a "but for" test, since "but for" the attack, there would

have been no post-attack injuries. In essence, Essex argues that

even if the conduct of the employees of The Industry after the

attack caused identifiable injury separate in kind from the

injuries from the attack or a worsening of the injuries from the

attack, the exclusion applies because these injuries would not have

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occurred if there had been no battery. The theory is not frivolous

and Essex points to cases from elsewhere (or, as they would say in

Maine, "from away") which support its reading. See, e.g., Mark

McNichol Enters., Inc. v. First Fin. Ins. Co., 726 N.Y.S.2d 828,

829 (N.Y. App. Div. 2001).

Essex points to only one Maine case, Mallar v. Penn-Am.

Ins. Co., 837 A.2d 133 (Me. 2003). In Mallar, the court held that

where a pub patron witnessed the murder of the bartender and

obtained a judgment against the pub for negligent infliction of

emotional distress as a result of the incident, the pub's insurer

nonetheless had no duty to indemnify the pub under the policy's

"assault and battery exclusion" because "witnessing the murder was

unquestionably the cause-in-fact" of the patron's injury (as

opposed to the injury being independently caused by the bartender's

actions in getting herself killed). Id. at 135.

Essex argues that Mallar focused on the operative facts

which caused the injury to determine the insurer's obligation, and

here, the "operative fact" was the assault. Mallar cites to

Winnacunnet Coop. Sch. Dist. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, Pa., 84 F.3d 32, 37 (1st Cir. 1996), which applied New

Hampshire law to an assault/battery exclusion clause, and Essex

relies on that case to support its position. Winnacunnet, however,

involves the mirror image of this case. It stands for the

proposition that negligent activities before an assault which do

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not cause any injuries independent of the assault fall within an

assault/battery exclusion and are not covered by a policy that

contains such an exclusion. Id. at 35. Mallar explains

Winnacunnet as a case where "although the plaintiffs allocated

blame elsewhere, their alleged injuries nonetheless originated from

a murder." Mallar, 837 A.2d at 135. However, this case involves

allegations of negligent activities after an assault which

allegedly caused (or exacerbated) injuries independent of (or in

addition to) the assault. Mallar does not establish the reading

Essex urges.

In interpreting insurance contracts, Maine law does not

use the "but for" test advocated by Essex. See, e.g., Pelkey v.

Gen. Elec. Capital Assurance Co., 804 A.2d 385, 387-89 (Me. 2002)

(An insurance policy which limited coverage to injuries due to

accidents "directly and independently of all other causes" did not

preclude coverage for injuries from an accidental fall, though "but

for" the contribution to the injuries from pre-existing disease,

the loss would not have occurred.). We see no reason to do so

here.

Under Maine law, "an insurer may have to defend before it

is clear whether there is a duty to indemnify," Commercial Union

Ins. Co., 658 A.2d at 1083. The lack of clarity referred to by the

Maine Law Court, in our view, involves lack of legal clarity as

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well as lack of factual clarity. See Found. for Blood Research,

730 A.2d at 177.

B. Award of Attorney's Fees Against Essex

Essex also appeals from the district court's award of

attorney's fees attributable to Bucci's being forced to prosecute

a claim against Essex for its failure to defend Bucci's underlying

action against The Industry.3

Under Maine law, although a trial court's award of a sum

for attorney's fees is reviewed for abuse of discretion, the

question of whether a trial court has authority to award attorney's

fees is a question of law reviewed de novo. Maine Mut. Fire Ins.

Co. v. Gervais, 745 A.2d 360, 362 (Me. 1999); Gibson v. Farm Family

Mut. Ins. Co., 673 A.2d 1350, 1352, 1354 (Me. 1996). Usually,

under the American Rule, attorney's fees are not awarded to the

winning party in a common law action. See Gibson, 673 A.2d at

1354. There is a common law exception which permits an award of

attorney's fees incurred in establishing an insurer's duty to

defend. See id.

Such an award is restricted to cases "when the duty to

defend is clear, pursuant to prevailing Maine law, from the policy

and the pleadings of the suit filed against the insured." Id. at

1355. It appears from Gibson that the issue of whether the duty

3
Essex does not contest the $7,000 award of contract damages,
which was based on its violation of the duty to defend.

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was clear is subject to de novo review. Id. Gibson also explained

that "[i]n determining whether a duty to defend is clear, the

insurer will be held to recognize Maine law prevailing at the time

of the insured's request for defense." Id. "Given the possible

existence of any legal or factual basis for payment under a policy,

an insurer's duty to defend should be decided summarily in favor of

the insured." Id. at 1352 (emphasis added).

Essex relies on Northland Ins. Cos. v. Coconut Island

Corp., 961 F. Supp. 20 (D. Me. 1997), to argue that there was no

clear duty. In Northland, the plaintiff in the underlying action

sued a guesthouse for injuries she sustained from a sexual assault

by an employee of the guesthouse who entered her room without her

consent. Id. at 21. The guesthouse's CGL policy contained an

exclusion for "bodily injury" that arises "out of an assault and

battery" and also provided no coverage for "personal injuries,"

defined as "injury, other than 'bodily injury,' arising out of . .

. wrongful entry into, or invasion of the right of private

occupancy of . . . a room, dwelling, or premises." Id. at 22. The

district court granted the insurer's summary judgment motion,

holding that the insurer had no duty to defend the underlying

action, because all of the plaintiff's allegations in the

underlying complaint were either bodily injuries that resulted from

the sexual assault or "personal injuries" caused by negligence,

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negligent hiring and supervision, or intentional infliction of

emotional distress. Id.

Northland is not helpful to Essex. To the extent that

Essex is arguing that some of Bucci's claims may be read to allege

"personal injuries," the argument fails because unlike the policy

in Northland, Essex's policy does provide coverage for "personal

injuries." Northland also cannot be read to state that Essex had

no duty to defend with respect to the post-attack allegations here.

We affirm the district court's award of attorney's fees.

III. Bucci's Appeal From Ruling that Exclusion Applies

A. Essex's Assertion of Nonconverage as a Defense After Violation
of Duty to Defend

Bucci argues, relying on language in two Maine cases,

that because Essex was in breach of its duty to defend, it could

not argue at trial that the injuries Bucci received were within the

assault/battery exclusion, and as a result, it could not argue that

it had no duty to indemnify The Industry. See Elliott v. Hanover

Ins. Co., 711 A.2d 1310, 1314 (Me. 1998); Marston v. Merchants Mut.

Ins. Co., 319 A.2d 111, 114 (Me. 1974).

Stated broadly, Bucci's argument is that an insurer which

is in breach of a duty to defend may not subsequently argue that

there was no duty to indemnify. As so stated, Maine law has flatly

rejected the argument. As the court said in Elliott, "An insurer

that breaches its duty to defend . . . is not estopped from

asserting noncoverage as a defense in a subsequent action brought

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by the insured or the insured's assignee." Elliott, 711 A.2d at

1313. The court observed that the argument would impermissibly

collapse the separate duties to defend and to indemnify into one

another:

[I]f an insurer who refuses to defend were
estopped from asserting the lack of coverage
as a defense in a subsequent action, then the
insurer's duty to indemnify would be
coextensive with its duty to defend. [The
Maine Law Court], however, ha[s] repeatedly
stated that an insurer's duty to indemnify is
independent from its duty to defend and that
its duty to defend is broader than its duty to
indemnify.

Id.

Elliott adopted the rule articulated by the Massachusetts

Supreme Judicial Court in Polaroid Corp. v. Travelers Indemnity

Co., 610 N.E.2d 912, 922 (Mass. 1993) ("The statement made by some

courts that the insurer is estopped to deny liability is simply a

conclusion and fails to recognize that no estoppel is involved in

any traditional sense because, in refusing to defend a claim, an

insurer makes no misrepresentation on which the insured relies to

its detriment."). Elliott, 711 A.2d at 1313. Because Polaroid

treated the matter as one of contract law, the question of whether

contract damages should include the amount of the underlying

settlement became a question of whether the amount of the

settlement represented damages which "cannot be reasonably

prevented and arise naturally from the breach, or [which were]

reasonably contemplated by the parties." Polaroid, 610 N.E.2d at

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921 (quoting Delano Growers' Coop. Winery v. Supreme Wine Co., 473

N.E.2d 1066, 1075 (Mass. 1985)). Importantly, the Polaroid court

went on to say: "If an underlying claim . . . is not within the

coverage of an insurance policy, an insurer's improper failure to

defend that claim would not ordinarily be a cause of any payment

that the insured made in settlement of that claim (or to satisfy a

judgment based on that claim)." Id. We understand this to be the

approach Maine has adopted.4

The question of whether breach of an insurer's duty to

defend precludes the insurer from asserting a defense to indemnity

involves different approaches and interests. Other states have

decided this public interest question differently. See 22 Eric

Mills Holmes, Holmes' Appleman on Insurance § 136.8, at 56 (2d ed.

2003) ("Another consequence of the insurer's refusal to defend [in

some states] is that the insurer may be estopped from denying

coverage under the indemnification provisions of the policy. Thus

when the insurer refuses to defend, it is bound by the judgment

4
Indeed, when a federal district court, in 1998, read an
earlier Maine case, Cambridge Mut. Fire Ins. Co. v. Perry, 692 A.2d
1388 (Me. 1997), as creating a rule that an insurer's wrongful
failure to defend results in the insurer's waiver of the right to
subsequently litigate the indemnification issue, see Anderson v.
Va. Sur. Co., 985 F. Supp. 182, 189-90 (D. Me. 1998), the Maine Law
Court expressly disavowed that broad reading. See Elliott, 711
A.2d at 1314 n.3. In a post-Elliott case, a federal district court
perceptively recognized that Elliott's rejection of that broad
reading may be based in part on Maine's recognition that key facts
bearing on the duty to indemnity may well not have been resolved in
an earlier settlement. Boise Cascade Corp. v. Reliance Nat'l
Indem. Co., 99 F. Supp. 2d 87, 98 n.14 (D. Me. 2000).

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entered against the insured."). The cases expressing that

different policy cited in the treatise are often based on the

estoppel theory. See, e.g., Aetna Cas. & Sur. Co. v. Coronet Ins.

Co., 358 N.E.2d 914, 917 (Ill. App. Ct. 1976).

But Maine has expressly rejected that theory of waiver or

estoppel. Elliott, 711 A.2d at 1313. Rather, Maine has adopted

the view that an insurer who has wrongfully refused to defend is in

breach of contract and is subject to contractual remedies for the

breach. Id.

The rub is what the Maine Law Court meant when it said in

Elliott that the insurer "is also bound by the default judgment as

to any factual issues that might have been litigated in the

underlying negligence action." Id. at 1314. Elliott cites to

Marston, which said, "[A]t least . . . in any action in which there

is an allegation in the complaint which would establish liability

within the coverage of the policy even though there are other

allegations as to liability outside the coverage of the policy, a

general verdict with no special findings of fact is binding on the

insurer as to its liability under the insurance policy." Marston,

319 A.2d at 114. Both Elliott and Marston, unlike the case here,

involved default judgments entered below.

Bucci seizes on this language from Elliott to argue that

Essex could have raised its exclusion argument based on the battery

in the underlying case between Bucci and The Industry, and because

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it failed to do so, it is now precluded from doing so. Given the

complexity of the law in this area and the statement in Elliott

that an insurer which is in breach of its duty to defend is not

precluded from asserting noncoverage as a defense to an indemnity

action, Elliott, 711 A.2d at 1313, we very much doubt the sentence

in question can be read in the way Bucci urges. The area of law

concerning the preclusive effect on an insurer in breach of its

duty to defend is complicated, and the Maine Law Court has not been

presented with cases which have permitted it to resolve the

complexities.

Elliott made reference to the complexities. See Elliott,

711 A.2d at 1313. The insurance law treatises describe a variety

of contexts in which the issue of preclusive effect on an insurer

is raised and the variety of exceptions that exist even in courts

which follow such a rule of preclusion. See 14 Lee Russ and Thomas

F. Segalla, Couch on Insurance §§ 202:8-202:12 (3d ed. 1999). For

example, Couch lists exceptions to the rule binding insurers in

breach of a duty to defend to judgments in the underlying action

when, inter alia, (1) the underlying action has been settled or

there is a consent judgment and the settlement amount was not

reasonable, or not entered into in good faith, id. § 202:9, at 202-

35; (2) the underlying judgment was procured by fraud or collusion

of the insured and the injured party, id. § 202:12, at 202-42; (3)

the question of coverage turns on facts which were not essential to

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the underlying judgment of liability, id. § 202:12, at 202-43; (4)

there is a serious conflict of interest between the insurer and

insured, id. § 202:12, at 202-43; and (5) the insured cannot show

that it was worse off as to indemnity for breach of the duty to

defend, id. § 202:12, at 202-44.

Indeed, the Couch treatise makes several observations.

Most pertinent is that "[t]he judicial decisions on this matter

generally reflect the principle that a court will not create

coverage in those situations where coverage does not exist." Id.

§ 202:12 at 202-45. Another is that "public policy considerations

. . . disfavor fraudulent or collusive settlements, such as those

in which an insured concedes liability in situations where it is

not liable, and in which the injured third party is effectively

awarded damages in excess of the value of actual injuries." Id.

§202:9, at 202-36. Maine has not yet explored all of these

questions, but certain principles guide the way.

First, to the extent Maine has any form of a rule binding

insurers in breach of a duty to defend to an underlying judgment,

there are, we conclude, limits to the binding effect under the

rule. Elliott limited the binding effect of the default judgment

to issues which were or "might have been litigated" in the

underlying action by the injured person for recourse to the policy.

Id. at 1314. We view this broad language in Elliott ("might have

been litigated") as likely limited by the rule articulated in Am.

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Policyholders' Ins. Co. v. Cumberland Cold Storage Co., 373 A.2d

247, 250-51 (Me. 1977), that where there is a duty to defend "the

indemnification obligation depends upon the theory under which

judgment is entered in the underlying damage actions." Id. at 251

(emphasis added). Further, we do not understand Maine law to

depart from the usual rule that any binding effect from an

underlying judgment is only as to facts which were essential to the

underlying judgment. See 14 Couch on Insurance, § 202:12, at 202-

41. That more limited understanding is articulated in the Polaroid

case, whose rule Elliott cited favorably. See Elliott, 711 A.2d at

1313; Polaroid, 610 N.E.2d at 921 n.20.

Second, it is also clear under Maine law that a non-

defending insurer in breach of its duty to defend may nonetheless

challenge, at the least, the reasonableness or good faith of the

underlying settlement. Cambridge Mut. Fire Ins. Co., 692 A.2d at

1391.

Third, Maine law allows declaratory judgment actions by

insurers who seek a determination that they have neither defense

nor indemnity obligations as to underlying actions against their

insureds. Am. Policyholders' Ins. Co., 373 A.2d at 250. Should

summary judgment be appropriate, the insurer may obtain a judgment

of no obligation to indemnify even before judgment has entered in

the underlying action. Id. at 250 n.2. Essex did not follow that

path here, nor is there a suggestion that it was required to do so.

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 Indeed, Maine law recognizes that a potential conflict of

interest between insurers denying coverage and insureds may be such

as to warrant refusing to let an insurer intervene in the

underlying action between the plaintiff and the insured. See Donna

C. v. Kalamaras, 485 A.2d 222, 225 (Me. 1984). The Maine Law Court

was explicit that an insurer need not intervene to protect itself

from the so-called Marston rule. Id. at 224-25. Thus Maine does

not seem to have adopted a rule that an insurer must bring a

declaratory judgment action or attempt to intervene in the

underlying action and is in peril of giving up an indemnity defense

if it fails to do so.

In the end, we conclude that the sentence in Elliott does

not assist Bucci for several reasons. First, the clear rule under

Elliott is that an insurer in breach of a duty to defend is not

prohibited from asserting noncoverage as a defense to an indemnity

action. Bucci's argument appears to us to be inconsistent with

that rule.

Second, we doubt Maine law would inflexibly adopt the

rule Bucci desires. Such a rule would encourage collusion (or even

fraud) between insureds and injured plaintiffs, as well as inflated

settlements, leaving an insurer without a defense of noncoverage.

See Airway Underwriters v. Perry, 284 N.E.2d 604, 607-08 (Mass.

1972) (noting an insurer may always avoid a judgment rendered

against the insured by showing it was procured by collusion or

-23-
fraud). All indications are that Maine would not want to encourage

collusion or fraud. See Cambridge Mut. Fire Ins. Co., 692 A.2d at

1391 ("An insurer is liable only if the settlement amount is

reasonable and is made in good faith.").

We draw some distinctions between collusion as to claims

of negligence and collusion as to claims on which an exclusion from

coverage is predicated. We do not suggest that there was no

reasoned basis for a conclusion that The Industry somehow

negligently violated a duty of care in not preventing or stopping

the assault; the record is simply too bare on the point to make any

such determination. Nor do we suggest that Bucci's injuries were

not serious; they were extremely serious and his damages were real.

There is nothing, nonetheless, in the record to support the

allegations contained in the complaint that post-attack actions by

The Industry caused or contributed to Bucci's injuries, and that

was the premise for Bucci's coverage argument. Bucci's refusal to

put on any proof in support of those coverage allegations is

telling. We see no reason why a court would not be free to

consider the lack of merit of the only allegations in the complaint

on which coverage could possibly be based in considering whether an

insurer is precluded from a defense on indemnity.

Third, the rule in Marston, referred to by the sentence

in Elliott, 711 A.2d at 1314, has a limited preclusive effect, as

we have described. There is a difference between the issue of

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whether the insured's negligence caused injury to plaintiff and the

issue of whether an exclusion (say, for assault and battery)

nonetheless precludes coverage even if there was negligence. Here,

the factual issue in the underlying action was whether The Industry

negligently caused Bucci's injuries. In the underlying tort

action, all that was required to be proven was negligence causing

injury; not that the touching causing injury was intentional. See

Cambridge Mut. Fire Ins. Co., 692 A.2d at 1390-91. It was not

necessary for the resolution of that underlying claim to determine

whether Bucci's injuries were caused by battery, the issue on which

insurance coverage turned.

The trial court correctly rejected Bucci's argument.

B. Sufficiency of the Evidence

As the case between Bucci and Essex was framed for trial

after the partial summary judgment motions, the issue was whether

there was evidence that any of the injuries Bucci suffered were

outside the exclusion, as the complaint had alleged. See Bucci I,

287 F. Supp. 2d at 79. That is, the question was whether Bucci had

suffered any injuries not caused by the incident itself but by the

conduct of The Industry staff afterwards. At trial, Bucci offered

no evidence of any such injury resulting from conduct outside of,

and after, the incident; instead, he relied on the fact that the

insurer had the burden of proving the exclusion.

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 On appeal, Bucci's theory has subtly shifted. He now

argues that the insurer never met its burden of showing that the

injuries he suffered were from an assault and battery, because no

one can show that his unknown assailant acted intentionally. The

argument builds on several points: that the district court applied

the incorrect legal standard; that a fact finder could not

reasonably infer from the degree of injury that the injury was

intentionally inflicted; that the medical records (which supplied

details concerning the nature of the injury and the statements that

indicated he was hit in the face) were inadmissible under Rule

803(4) because the declarant was unknown; and that the error in

admitting the medical records was prejudicial. The arguments have

a certain air of unreality, especially given the allegations of the

complaint, which described Bucci as a victim of assault and

battery.5

5
The complaint in Bucci's civil suit against The Industry,
though not admitted into evidence for the truth of the matter
asserted therein, was nonetheless admissible as a party admission
and susceptible to judicial notice. See Rodi v. S. New Engl. Sch.
of Law, 389 F.3d 5, 19 (1st Cir. 2004) ("It is well-accepted that
federal courts may take judicial notice of proceedings in other
courts if those proceedings have relevance to the matters at
hand.") (quoting Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.
1990)). As an ordinary admission, these allegations in the
complaint are not rebutted by any evidence introduced by Bucci.
Litigants are under an obligation not to allege facts that
have no evidentiary support. See Gonzalez v. Walgreens Co., 918
F.2d 303, 305 (1st Cir. 1990) ("[A] pleading in one case is not a
conclusive judicial admission in a later one, [but] it is treated
as an ordinary admission which can be contradicted by other
evidence." (quoting United States v. Raphelson, 802 F.2d 588, 592
(1st Cir. 1986)) (alterations in Gonzalez); see also Fed. R. Civ.

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 As to the insufficiency argument, an appellate court

construes all evidence "in the light most hospitable to the

verdict" and the evidence will be deemed insufficient only if the

record, "viewed from this verdict-friendly perspective and without

regard to credibility or weight, is such that reasonable minds

could not differ as to the outcome." Muniz v. Rovira, 373 F.3d 1,

4-5 (1st Cir. 2004) (citations omitted).

Bucci's main argument is that there is no evidence that

Bucci's injuries were intentionally caused, and thus a battery.

The district court inferred the requisite intent from Bucci's

severe facial injuries, which were consistent with the theory that

he was hit with repeated and violent blows. The court found that

"Bucci was hit from behind and then punched or kicked in the face

until he sustained severe facial damage." Bucci II, 323 F. Supp.

2d at 91 n.6. That satisfied the court that "Bucci was the victim

of a battery." Id.

The district court applied the correct legal standard.

"At common law an unlawful touching of the person of another,

unpermitted and unprivileged, done with the intention of bringing

about a harmful or offensive contact, constituted an assault and

battery." Wilson v. State, 268 A.2d 484, 486-87 (Me. 1970).

Although there is no direct evidence of intent in this case, given

P. 8(e)(2) and 11(b)(3) (stating factual allegations in pleadings
should have evidentiary support or are likely to have such support
after investigation).

-27-
that the assailant could not be identified, Maine allows intent to

be inferred from the result of the attack. "Absent a rare

admission by the party, a party's intent can only be inferred from

his physical acts." Mut. Fire Ins. Co. v. Hancock, 634 A.2d 1312,

1313 (Me. 1993). Indeed, Maine has not been particularly receptive

to arguments that where a person is unable to recall what happened

to cause injury, a court may not infer from other evidence that

what happened was a result of intentional conduct. That was

exactly the argument the court was asked, and refused, to endorse

in Hancock. Id. at 1313 (inferring from evidence of multiple

violent blows to victim that the attacker intended to cause

injuries). The record supports the trial judge's finding that

Bucci was the victim of a battery.6

Bucci also testified at trial that he was not disputing

the fact that he was "assaulted" outside The Industry. Bucci

6
Bucci testified that he remembered being hit by the first
blow from behind. The emergency ambulance report noted that
Bucci's left cheek was swelling because he was "struck once in face
[with] a fist," and that a witness said that Bucci lost
consciousness for "approximately 1 min." The ambulance report also
noted that Bucci's lower lip was lacerated. The emergency
physician record from the night of December 23, 2000, when Bucci
was taken to the emergency room, notes that Bucci was "hit & kicked
in [the] face." Bucci's argument that these multiple, repeated
violent blows to his body were not intentional but "accidental" or
"reckless" is implausible and defies common sense. Cf. Hancock,
634 A.2d at 1313. Further, Bucci's answer to interrogatories,
admitted into evidence at trial, explained that he "was brutally
attacked within a short distance from Industry employees. . . .
[The employees] hid the attacker from the police." (emphasis
added).

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attempts to minimize this by arguing that he was a layman and did

not understand the legal distinction between a "criminal assault"

(which may be premised on recklessness alone) and a "civil assault

and battery" (which requires intentional acts). The argument is

disingenuous: the common, everyday definition for assault is "a

violent physical or verbal attack." Merriam Webster's Collegiate

Dictionary 69 (10th ed. 1993).

Bucci next argues that the district court erred by

allowing into evidence Bucci's medical records for the purpose of

determining the nature of Bucci's injuries, and inferring from the

nature of the injuries that they were intentionally caused. We

review a trial court's evidentiary rulings for abuse of discretion.

Walton v. Nalco Chem. Co., 272 F.3d 13, 24 (1st Cir. 2001).

At trial, the district court admitted the medical records

de bene, noting Bucci's hearsay and foundation objections. In its

opinion, the district court explained that it excluded the portions

from those records that characterize the incident as an "assault,"

but it admitted descriptions of the specific contacts that caused

Bucci's injuries under the statements for medical treatment or

diagnosis exception to the hearsay rule, Fed. R. Evid. 803(4).

Bucci II, 323 F. Supp. 2d at 87 n.3. Rule 803(4) provides for the

admission of: "Statements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general

-29-
character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment." Fed R. Evid.

803(4).

Under Rule 803(4), there are three requirements for the

admission of out-of-court statements: "(1) the statements must be

made for purposes of diagnosis or treatment (2) about (i) medical

history (ii) or past or present symptoms, pain, or sensations or

(iii) about the inception or general character of the cause or

external source thereof (3) insofar as they are reasonably

pertinent to diagnosis or treatment." Danaipour v. McLarey, 386

F.3d 289, 297 (1st Cir. 2004) (footnote omitted). There is no

requirement, either in the text of the Rule, or the case law, that

the speaker be the patient himself. Id.; see also 4 Stephen A.

Saltzburg et al., Federal Rules of Evidence Manual § 803.02[5][d]

(8th ed. 2002) ("[S]tatements by bystanders, family members, and

others, made for the purposes of treating an injured person and

pertinent to that treatment, have often been admitted under Rule

803(4)."). In general, under Rule 803(4), "the declarant's motive

to promote treatment or diagnosis is the factor crucial to

reliability." Danaipour, 386 F.3d at 298.

Sometimes, when the declarant of an out-of-court

statement is unknown, there is less certainty that the statement

was made for the purpose of treating or diagnosing the patient, and

the statement itself may not bear the indicia of that purpose.

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See, e.g., Stull v. Fuqua Indus., Inc., 906 F.2d 1271, 1273-74 (8th

Cir. 1990) (A statement in the medical record that "[a]pparently,

[the plaintiff] . . . jumped off the lawn mower and got his left

heel under the law mower" was not admissible under Rule 803(4)

because "the word 'apparently' in the hospital record indicates

that the statement . . . may not have been made by [the plaintiff];

it may instead represent conjecture on the part of the person

filling out the record.").7

Here, some statements in the medical records were clearly

made by Bucci or a witness to the attack for purposes of medical

treatment.8 For some of the other statements, the identity of the

7
See Cook v. Hoppin, 783 F.2d 684, 690 (7th Cir. 1986)
(Statements from unknown declarant relating to an alleged
"wrestling match" in medical records were not admissible under Rule
803(4) because they "were not of the type medical personnel
generally rely on in making a diagnosis and providing treatment.");
see also Petrocelli v. Gallison, 679 F.2d 286, 288-91 (1st Cir.
1982) (Statements from unknown declarant in medical records
regarding a nerve allegedly severed six months earlier were not
admissible under "business records" exception in Fed. R. Evid.
803(6) because there was no indication where this information came
from and statements were not diagnostic.).
8
For example, in the emergency ambulance report, which was
filled out by the ambulance crew that transported Bucci to the
hospital, is the following: "Patient complained of [neck] pain
after struck once in face [by] a fist. Witness [said] patient
[suffered] loss of consciousness [for] approximately 1 minute.
Patient denies spine pain, denies shortness of breath." The
witness who provided a description to the ambulance crew clearly
did so for purposes of Bucci's medical treatment. These statements
were made within minutes of the call for help after the attack,
adding to the likelihood that they were reliable: the ambulance
crew received the emergency call at 1:36 AM, arrived at the scene
of the attack at 1:40 AM, and transported Bucci to the hospital at
1:58 AM.

-31-
declarant cannot be discerned, but it is nonetheless clear that the

statements were made for purposes of medical treatment and were

admissible.9

The district court carefully and fairly heard Bucci's

case. The court's conclusion is unimpeachable.

IV.

The district court's judgment is affirmed. No costs are

awarded.

9
For example, in the emergency physician record for Bucci
dated December 23, 2000, under the heading "context," the word
"direct blow" was circled and the statement "hit & kicked [in the]
face" was written underneath; in the triage report filled out by
the triage nurse at 2:00 AM on December 23, 2000, the following
statement appears under the heading of "primary assessment":
"Punched in [left] side of head." It is helpful for a doctor to
know this information in evaluating injuries.

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