Marculetiu v. Safety Insurance Co.

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19-P-1407 Appeals Court

COSMIN MARCULETIU vs. SAFETY INSURANCE COMPANY & others.1

No. 19-P-1407.

Middlesex. June 11, 2020. - October 2, 2020.

Present: Rubin, Milkey, & Massing, JJ.

Insurance, Coverage, Insurer's obligation to defend,
Construction of policy. Contract, Insurance. Rape. False
Imprisonment. Negligence. Employment, Sexual Harassment.
Practice, Civil, Dismissal, Declaratory proceeding.

Civil action commenced in the Superior Court Department on
January 25, 2016.

Motions to dismiss were heard by Rosemary Connolly, J., and
Salim Rodriguez Tabit, J.; motions for reconsideration were
considered by them; and the entry of judgment was ordered by
Bruce R. Henry, J.

James E. Grumbach for the plaintiff.
Sharon S. Angelino, of Connecticut, for National Casualty
Insurance Company.
Tanya T. Austin for Safety Insurance Company.

1 National Casualty Insurance Company, International Ballet
Academy of Norwell, Inc., doing business as New England Movement
Arts, and L.C.
 2

MILKEY, J. When their paths first crossed in 2013, Cosmin

Marculetiu and L.C. were ballet dancers at markedly different

points in their respective careers. Marculetiu, then forty-

four, had become a dance instructor of international renown.

L.C., then twenty-three, had just completed college and hoped to

make a career out of being a professional dancer. L.C. took

some classes at a dance studio in Burlington operated by

Marculetiu's company, International Ballet Academy of Norwell,

Inc. (IBAN), and she appeared in performances of a ballet

produced by IBAN. Any professional relationship between L.C.

and Marculetiu ended in 2014 after she accused him of raping her

during a trip to Romania for an international ballet

competition. The following year, L.C. filed a multi-count civil

action in Superior Court against Marculetiu and IBAN.

Marculetiu denied L.C.'s allegations and counterclaimed for

defamation, intentional interference with advantageous

relations, and abuse of process. Both L.C.'s tort action

(underlying case) and Marculetiu's counterclaims remain pending.

The appeal before us involves insurance coverage related to

the underlying case. In 2016, Marculetiu filed a declaratory

judgment action against National Casualty Insurance Company

(National), which was IBAN's comprehensive general liability

(CGL) insurance carrier, and Safety Insurance Company (Safety),

his own homeowner insurance carrier. He alleged that both
 3

insurers had a duty to defend the underlying action, as well as

a duty to indemnify him should he be held liable for damages in

that action. Based principally on the fact that the underlying

action involved allegations of rape and other intentional sexual

assaults, each insurer filed a motion to dismiss claiming that,

as a matter of law, it had no duty to defend or indemnify

Marculetiu. The motions were allowed by separate judges, and

judgment entered for the defendants. Marculetiu's motions for

reconsideration also were denied, and Marculetiu appealed. For

the reasons that follow, we affirm, albeit on different grounds

than relied upon by either judge.

Background. 1. The claims set forth in the underlying

action. Because the complaint in the underlying action provides

the touchstone of whether the insurers had a duty to defend

Marculetiu, we begin by summarizing the allegations set forth

there.

According to her complaint, L.C. first met Marculetiu in

August of 2013 when she attended a dance class at IBAN's studio

in Burlington. The context of the meeting was that one of

Marculetiu's students needed a new dance partner, and L.C. was

trying out for that role. L.C. alleges that Marculetiu was

impressed with her dancing skills and that he wanted her to

dance under his tutelage and to perform in various productions

with which he was associated. She began attending classes at
 4

the Burlington studio, during which -- she alleges -- Marculetiu

sometimes touched her in a manner that made her uncomfortable.

Together with her new partner, L.C. danced in performances of

the Nutcracker Suite that IBAN produced. She also agreed to

serve as a substitute dance instructor at the Burlington studio,

although her services in that capacity apparently were never

utilized. L.C. alleges that Marculetiu used his position of

authority to gain her "trust and confidence."

According to the complaint, Marculetiu convinced L.C. to

compete in the "World Ballet Competition" to be held in Romania

in March of 2014. Marculetiu, who is originally from Romania,

co-founded the event and served as one of its judges. He told

L.C. that he would introduce her to many important people at the

event, and that her attending it would be a boost to her career

by "land[ing] her dancing contracts all over the country and

world."

L.C. alleges that on the plane flight over to the dance

competition, she awoke to find Marculetiu groping her with his

hands under her shirt and down her pants. According to her,

once they were in Romania, Marculetiu entered her hotel room (to

which he had his own key), professed his love for her, "then

forcibly removed her clothes and pushed her onto the bed, where

he sexually assaulted her." Over the next several days, she

alleges, he "repeatedly raped and sexually assaulted her" in her
 5

room. The complaint alleges that she was in an especially

vulnerable position given that she was traveling alone in a

foreign country where she did not speak the native language.

According to L.C., after four days of sexual assaults, she

told Marculetiu that she did not want to have sex with him and

had pretended to be in love with him only because she was scared

of what he might do to her, including potentially not letting

her return to the United States. She alleges that he initially

was remorseful to hear this but then renewed his sexual assaults

of her. She claims that on one occasion he raped her after he

must have put a drug in her drinks, because -- after consuming

six drinks -- she "could barely walk by herself or see

straight." Marculetiu denies that he had any form of sexual

contact with L.C. or that he ever made any sexual advances

toward her.

L.C.'s complaint included ten counts brought against

Marculetiu.2 Five of the counts allege various forms of sexual

assault: rape, assault and battery, indecent assault and

battery, assault with intent to rape, and drugging for sexual

intercourse. The remaining counts are for intentional

infliction of emotional distress, false imprisonment,

2 All ten counts were also brought against IBAN. In
addition, L.C. brought two counts against IBAN only, one based
on respondeat superior and another for negligent supervision and
retention.
 6

negligence, breach of fiduciary duty, and loss of consortium.

Further details regarding these counts are reserved for later

discussion.

As explained below, whether National owed Marculetiu any

duties under IBAN's CGL policy was resolved first, based only on

the allegations in L.C.'s complaint in the underlying action.

When the second judge addressed Safety's duties under the

homeowner's policy, he had before him some additional factual

materials that had been elicited in discovery. Then, after both

motions to dismiss had been allowed, Marculetiu filed a motion

seeking reconsideration of both rulings, and attached to that

motion were additional discovery materials, including deposition

transcripts. In particular, the transcripts of the depositions

of L.C., and of one of her therapists, provide illuminating

detail about what she specifically was alleging occurred during

the trip to Romania.3 For present purposes it suffices to note

the following. At least with respect to some of the sexual

encounters that L.C. alleged, certain statements that she made -

3 The deposition transcripts also included a deposition of
Marculetiu, who flatly denied that anything untoward happened
during the trip. Marculetiu also provided a markedly different
version of his professional relationship with L.C. He
characterized her as someone who occasionally took adult group
classes that were open to all, not as a promising dance student
whom he individually had taken under his wing. With respect to
his having hired L.C. for a lead role in the Nutcracker Suite,
he portrays this as a last-minute substitute for another dancer
who had to withdraw for medical reasons.
 7

- either directly in her deposition or to her therapist -- could

be taken by a fact finder as being in tension with her claims

that any actions taken by Marculetiu rose to the level of

forcible rape. For example, L.C. stated that she, at various

points, affirmatively took actions expressly designed to make

Marculetiu believe that she welcomed a sexual relationship with

him.4 At the same time, the deposition transcripts also suggest

that if L.C. acquiesced to any sexual advances that Marculetiu

might have made, she did so in the context of a mentor-mentee

relationship in which there was a significant imbalance of

power.

2. Relevant policy provisions. a. CGL policy. IBAN

purchased a CGL policy from National. The "coverage territory"

under the policy is defined to include not only the United

States, but "[a]ll other parts of the world if the injury or

damage arises out of . . . activities of a person whose home is

in [the United States], but is away for a short time on [the

insured's] business . . . ."

IBAN itself is the principal insured under the CGL policy.5

However, employees of IBAN are also insureds, "but only for acts

L.C. alleges that she did so at least in part out of fear
4

of reprisals from Marculetiu.

In fact, National provided counsel for IBAN in the
5

underlying action.
 8

within the scope of their employment by [IBAN] or while

performing duties related to the conduct of [IBAN's] business."

Similarly, IBAN's "'executive officers' and directors are

insureds, but only with respect to their duties as [IBAN's]

officers or directors."

Three types of coverage under the CGL policy potentially

apply. "Coverage A" applies to property damage and bodily

injury claims caused by an occurrence. "Occurrence" is defined

in the standard manner to "mean[] an accident." Various

exclusions apply to Coverage A, including one for injuries

"expected or intended from the standpoint of the insured."

"Coverage B" applies to "personal and advertising injury,"

which is defined to include claims for false imprisonment.

Various exclusions apply. One is for "'personal and advertising

injury' caused by or at the direction of the insured with the

knowledge that the act would violate the rights of another and

would inflict 'personal and advertising injury.'" Another

exclusion is for "'personal and advertising injury' arising out

of a criminal act committed by or at the direction of the

insured."

By separate endorsement, IBAN also purchased "professional

liability coverage for sports or fitness activities." This

coverage applied to claims for bodily injury or property damage

caused by a "wrongful act," which was defined to include "any
 9

breach of duty, neglect, error, omission, misstatement, or

misleading statement in the discharge of 'sports or fitness

activities.'" Various exclusions apply, including one for

"[a]ny claim or 'suit' arising out of either undue familiarity,

sexual abuse or licentious, immoral or sexual behavior intended

to lead to, or culminating in any sexual act, whether caused by,

or at the instigation of, or at the direction of, either known

or unknown by any insured or the customers or patrons of the

[n]amed insured."

In addition to the individual exclusions that apply to each

type of coverage, the CGL policy included a separate endorsement

entitled "SEXUAL ABUSE EXCLUSION -- ILLINOIS." The body of the

exclusion states that coverage "does not apply to any claim,

'suit' or cause of action, including defense of same, for any

person who actively participates in any act of sexual

misconduct, sexual molestation or physical or mental abuse of

any person." It further states that "[t]his exclusion shall

apply regardless of the legal form any claim may take by way of

negligence, breach of contract or assault."

b. Homeowner's policy. Marculetiu and his wife purchased

a homeowner's policy from Safety in connection with their home

in Quincy. Under "Coverage E," that policy covered personal

liability claims brought by third parties "for damages because

of 'bodily injury' . . . caused by an 'occurrence.'"
 10

"Occurrence" again is defined in the standard way to mean "an

accident."

Various exclusions generally apply to Coverage E. One is

for bodily injury that is "expected or intended by the

'insured.'" Another -- known commonly as the "business pursuits

exclusion" -- is for injury "[a]rising out of or in connection

with a 'business' engaged in by an 'insured.'" A third is for

injury "[a]rising out of sexual molestation, corporal punishment

or physical or mental abuse."

By way of separate endorsement, the homeowner's policy also

included "personal injury" coverage under Coverage E. "Personal

injury" is expressly defined to include "injury arising out of

. . . [f]alse arrest, detention or imprisonment." The separate

endorsement providing such coverage states that "[e]xclusions do

not apply to 'personal injury.'" It then goes on, however, to

list six types of injury that are not covered. Among these is

"[i]njury caused by a violation of a penal law or ordinance

committed by or with the knowledge or consent of an 'insured.'"

Another such provision uses language identical to the business

pursuits exclusion generally applicable to Coverage E.

3. The Superior Court rulings. a. National's motion to

dismiss. In moving to dismiss Marculetiu's action, National

argued, inter alia, that coverage in any event was expressly

excluded by the endorsement entitled "SEXUAL ABUSE EXCLUSION --
 11

ILLINOIS." In a ruling entered in January of 2017, a Superior

Court judge (first judge) rejected that argument, because she

agreed with Marculetiu that the endorsement was ambiguous with

respect to whether it applied only in Illinois or more

generally.

The first judge nevertheless ruled in National's favor on

other grounds. She concluded that all of the counts in the

underlying action except for negligence and breach of fiduciary

duty "alleged intentional conduct (for example, false

imprisonment) or criminal conduct (for example rape, drugging

someone for the purpose of having sex, assault and battery)"

that were excluded by "clear policy language." With respect to

the counts alleging negligence and breach of fiduciary duty, she

concluded that while these nominally were brought against both

IBAN and Marculetiu, they "are directed to IBAN . . . and not to

[Marculetiu] himself." The judge did not address whether

Marculetiu's alleged actions were sufficiently related to his

various roles at IBAN as to entitle him to coverage under IBAN's

CGL policy as an executive officer, director, or employee.

b. Safety's motion to dismiss and Marculetiu's cross

motion. Safety eventually filed its own motion to dismiss.

Marculetiu opposed that motion and cross-moved for partial

summary judgment with respect to Safety's duty to defend.

Appended to Marculetiu's motion were certain limited discovery
 12

materials (not including the deposition transcripts referenced

above).

In August of 2017, a different Superior Court judge (second

judge) allowed Safety's motion to dismiss and denied

Marculetiu's cross motion for partial summary judgment. He

concluded that the underlying action alleged intentional sexual

misconduct for which no coverage would lie either because any

injury was not caused by an "occurrence" or because the injury

was excluded as "expected or intended" by Marculetiu. To the

extent the underlying action sought to bring a count against

Marculetiu based on negligence, the judge concluded that such a

"count is more properly construed as an intentional tort."

Similarly, the judge concluded that the count based on an

alleged breach of a fiduciary duty also was excluded because "it

was Marculetiu's alleged intentional conduct that breached the

duty."

With respect to the false imprisonment count, the judge

characterized the claim as "inseparable from the sexual assault

allegations," stating that it "relates directly to the

allegation that Marculetiu held [L.C.] down while assaulting

her." The judge separately ruled that "even assuming [the false

imprisonment count is] separate from the intentional torts and

[is] potentially covered under the personal liability section of

the policy, [it] would be specifically excluded as 'injuri[ies]
 13

caused by a violation of a penal law or ordinance committed by

or with the knowledge or consent of an "insured."'" The second

judge did not reach the question whether the business pursuits

exclusion applied.

c. Motion for reconsideration. Marculetiu filed a motion

for reconsideration of the allowance of National's and Safety's

motions to dismiss. As noted, Marculetiu appended to that

motion various deposition transcripts and other additional

factual material. The two motion judges denied their respective

portions of the motion. This appeal followed.

Discussion. 1. Legal framework and standard of review.

As noted, Marculetiu alleges that each insurer owed him both a

duty to defend and a duty to indemnify. We focus principally on

the duty to defend, because "[i]t is axiomatic that an insurance

company's duty to defend is broader than its duty to indemnify."

Boston Symphony Orch., Inc. v. Commercial Union Ins. Co., 406

Mass. 7, 10 (1989).

Although the insured bears the burden of demonstrating that

his insurer's duty to defend has been triggered, that burden is

satisfied by a showing of a mere "possibility" of coverage.

Billings v. Commerce Ins. Co., 458 Mass. 194, 201 (2010). The

question is whether the underlying allegations brought against

the insured "are reasonably susceptible of an interpretation

that states or roughly sketches a claim covered by the policy
 14

terms." Id. at 200. As Justice Kaplan put it almost four

decades ago, "the process is one of envisaging what kinds of

losses may be proved as lying within the range of the

allegations of the complaint, and then seeing whether any such

loss fits the expectation of protective insurance reasonably

generated by the terms of the policy." Sterilite Corp. v.

Continental Cas. Co., 17 Mass. App. Ct. 316, 318 (1983).

"The duty to defend is determined based on the facts

alleged in the [underlying] complaint, and on facts known or

readily knowable by the insurer that may aid in its

interpretation of the allegations in the complaint." Billings,

458 Mass. at 200, citing Boston Symphony Orch., Inc., 406 Mass.

at 10-11. An insured's denial of the underlying allegations has

no bearing on whether a duty to defend exists, because coverage

turns on the nature of those allegations, not on whether they

are true.

As to both insurance policies here, the question we face is

whether each motion judge correctly determined that the

respective insurer had no duty to defend Marculetiu as a matter

of law. Our review of that question is de novo. See Pacific

Indem. Co. v. Lampro, 86 Mass. App. Ct. 60, 63 (2014); Norfolk &

Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass.

App. Ct. 40, 47 (2011) (Cleary). Strictly speaking, the two

halves of the case come to us in slightly different procedural
 15

postures, because the second judge had before him certain

factual material that the first judge did not, and the legal

issues raised were considered in part in the context of summary

judgment. In the end, those slight differences are not

material, and no party argues otherwise on appeal. As noted,

Marculetiu also brought additional factual material to the

judges' attention when he moved for reconsideration. Putting

aside whether the judges were required even to consider that

additional material, that material does not ultimately affect

the outcome of this case.

The dispute before us is relatively narrow. Marculetiu

makes no claim that either insurer has a duty to defend or

indemnify him with respect to L.C.'s core allegations that he

raped her or otherwise committed intentional sexual assaults

against her. Instead, he argues that the insurers' duties are

triggered by three other claims that L.C. brought: breach of

fiduciary duty, false imprisonment, and negligence.6 We examine

each insurer's duties regarding these counts in turn. With

respect to each policy, we first review the grounds on which the

judge relied in ruling in the insurer's favor, and then turn to

6 As a general rule, if an insurer has a duty to defend part
of an action, it must defend the entire action. See GMAC Mtge.,
LLC v. First Am. Title Ins. Co., 464 Mass. 733, 738-739 (2013),
and cases cited.
 16

the potential alternative grounds for affirmance that each

insurer has argued.

2. CGL policy. L.C.'s complaint names both Marculetiu and

IBAN as defendants with respect to her breach of fiduciary duty

claim (count IX). Nevertheless, the first judge ruled that this

count did not trigger National's duty to defend Marculetiu,

because she concluded that it effectively was directed only at

IBAN, not Marculetiu. We disagree. For the reasons that

follow, we conclude that the breach of fiduciary duty count

"roughly sketches" a claim against Marculetiu even without

applying the liberality that the cases mandate that judges

employ in assessing whether an insurer's duty to defend has been

triggered.

In count IX, L.C. alleges that Marculetiu (and IBAN) owed

her, as "a ballet student," a fiduciary duty that they breached.

She further alleges that Marculetiu (and IBAN) "were in a far

superior position of knowledge, authority, control and power

over [her], and given the circumstances she was placed in, [she]

was unable to protect herself alone against harm and abuses of

trust." Although not formally labeled as such, count IX sounds

in terms of a claim for sexual harassment against both

Marculetiu and IBAN. See G. L. c. 151B, § 1 (18) (providing

statutory definition of "sexual harassment"). See generally

Bagley v. Monticello Ins. Co., 430 Mass. 454, 458 (1999) ("It is
 17

the source from which the plaintiff's personal injury originates

rather than the specific theories of liability alleged in the

complaint which determines the insurer's duty to defend"

[emphasis and citation omitted]). Because the count alleging

breach of fiduciary duty is not directed only against IBAN, the

sole ground upon which the first judge relied in concluding that

it did not raise a possibility of coverage is untenable.

We also disagree with the first judge's reasoning that

L.C.'s count alleging false imprisonment raised no possibility

of coverage. The judge explained that this count did not

trigger coverage because it was an "intentional" act that in

some unidentified way was expressly excluded. Not only did IBAN

purchase personal liability coverage that expressly included

coverage for "false imprisonment," an intentional tort, but also

under the terms of such coverage the exclusion for "expected or

intended" conduct does not even apply.7

Although we disagree with the specific grounds on which the

judge relied, we can affirm the judgment on any grounds fairly

addressed by the record. See Gabbidon v. King, 414 Mass. 685,

7 Unlike count IX, alleging breach of fiduciary duty, count
VIII -- which alleges negligence nominally against both IBAN and
Marculetiu -- is directed almost entirely against IBAN.
Moreover, the complaint otherwise alleges that Marculetiu's
actions were intentional. Given our resolution of this appeal,
we need not resolve whether L.C.'s allegations could -- on the
margins -- make out a case of negligence against Marculetiu.
 18

686 (1993). We therefore turn to the additional arguments that

National raises.

National's lead argument for why there is no possibility of

coverage is that any injuries that L.C. suffered from

Marculetiu's alleged conduct could not be considered

"accidental" as a matter of law.8 The key question in resolving

that issue is not whether Marculetiu intended the alleged

actions that caused such injuries, but instead whether he

specifically intended to cause the injuries themselves. See

Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984)

("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").9 Accord Dorchester Mut. Ins. Co. v. Krusell, 485 Mass.

8 This argument goes to Marculetiu's efforts to seek
coverage under Coverage A, which requires the injury at issue to
have been caused by an "occurrence." As noted, IBAN purchased
separate professional liability coverage, but that coverage is
subject to an express exclusion for "undue familiarity, sexual
abuse or licentious, immoral or sexual behavior intended to lead
to, or culminating in any sexual act." Unsurprisingly,
Marculetiu is not claiming that National owes him duties under
the professional liability coverage.

9 In Quincy Mutual, the court reversed the allowance of
summary judgment in favor of an insurer with respect to
allegations that the insured intentionally had thrown a "large
piece of [asphalt]" at a car that injured the car's occupants.
393 Mass. at 82. The court concluded that a specific intent to
injure could not be inferred as a matter of law from the
 19

431, 436 n.11 (2020). Thus, the commission of an intentional

tort does not necessarily preclude the resulting injuries from

being considered "accidental" for purposes of assessing

insurance coverage.

Notably, L.C. can make out a claim of sexual harassment

without alleging that Marculetiu's actions amounted to rape or

other forms of intentional sexual assault. She need claim only

that Marculetiu abused his position of power as her employer or

teacher by making unwanted sexual advances toward her.10 See,

e.g., Morrison v. Northern Essex Community College, 56 Mass.

App. Ct. 784, 785, 789-792 (2002) (student athletes asserted

sexual harassment claims under Title IX of Education Amendments

of 1972, 20 U.S.C. § 1681, and G. L. c. 151C, § 2 [g], by

alleging their coach made sexual comments towards them, touched

intentional act of throwing the asphalt. Id. at 87-88. See
Preferred Mut. Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 200-
201, S.C., 426 Mass. 93 (1997) (where underlying claim was that
insured had injured police officer's knee by forcibly grabbing
his belt, insured's intent to injure officer could not be
determined as matter of law).

10In the current appeal, no party has focused on whether
Marculetiu in fact qualified as L.C.'s employer or teacher for
purposes of maintaining a sexual harassment claim. See Lowery
v. Klemm, 446 Mass. 572, 580 & n.10 (2006). There is certainly
enough in L.C.'s complaint to "roughly sketch" that Marculetiu
served in such a capacity. Moreover, whether such a
relationship existed goes to whether Marculetiu has defenses
that he could raise to a sexual harassment claim, not whether
the insurers had a duty to defend him regarding such a claim.
The same would apply to other potential defenses to a sexual
harassment claim.
 20

them in inappropriate ways, and engaged in other sexually

harassing activities). She need not prove that Marculetiu's

actions amounted to rape or other forms of intentional sexual

assault. While it may well be that someone found liable for

sexual harassment specifically intended to injure the person

being harassed, we do not believe that a specific intent to

injure must be inferred as a matter of law. Indeed, as we

previously have noted in a case involving insurance coverage,

the statutes governing sexual harassment claims "provide that

sexual harassment may occur in the absence of an intent to

injure." Timpson v. Transamerica Ins. Co., 41 Mass. App. Ct.

344, 351 & n.4 (1996). See Maine State Academy of Hair Design,

Inc. v. Commercial Union Ins. Co., 1997 ME 188, ¶¶ 8-9 (bodily

injury incurred by victim of sexual harassment "was at least

potentially unanticipated," thus precluding decision that injury

was not accidental as matter of law). With regard to the

specific allegations that L.C. has raised, it is possible to

imagine a jury concluding that Marculetiu committed actionable

sexual harassment without possessing a specific intent to cause

her injury.11 Contrast Liberty Mut. Fire Ins. Co. v. Casey, 91

11Perhaps the strongest support for a jury to conclude that
Marculetiu may not have intended to harm L.C. when he allegedly
made sexual advances toward her is found in the deposition
transcripts. These were not before either judge when they
initially ruled on the motions to dismiss. However, even in her
 21

Mass. App. Ct. 243, 247, 252 (2017) (because it was "undisputed

that [insured] punched [victim] multiple times and kicked him

once in the face," insured's intent to injure victim established

as matter of law).

In claiming that an intent to injure L.C. must be inferred

as a matter of law even with respect to her breach of fiduciary

duty claim, National relies on two opinions from the Supreme

Judicial Court. See Doe v. Liberty Mut. Ins. Co., 423 Mass.

366, 369-371 (1996) (Doe); Worcester Ins. Co. v. Fells Acres Day

Sch., Inc. (Fells Acres), 408 Mass. 393, 398-403 (1990). In

Fells Acres, the insurers maintained that they had no duty to

defend or indemnify the insureds, who had been convicted of

molesting and raping children at a day care center. 408 Mass.

at 397-398. Specifically, the insurers argued that the injuries

suffered by the children were not "accident[al]" and therefore

did not result from an "occurrence[]." See id. at 399. For

essentially the same reason, the insurers also argued that the

injuries were "expected or intended from the standpoint of the

insured" and were therefore excluded from coverage in any event.

Id. at 398 & n.6. The court agreed, concluding that "an intent

to injure may be inferred as a matter of law from acts of child

molestation and rape." Id. at 401.

complaint itself, L.C. alleged that she had "pretend[ed] to be
in love with" Marculetiu.
 22

In Doe, the underlying allegations were that a junior high

school principal used his position to gain the trust of a

student whose breasts and genital area he then fondled. 423

Mass. at 367-368. Applying Fells Acres, the court concluded

that, as a matter of law, the insured's alleged actions are

presumed to have been carried out with an intent to injure the

student. Id. at 369-370. Accordingly, the court held that the

insurer had no duty to defend or indemnify the insured, and that

recasting the principal's alleged actions as constituting

negligence could not provide coverage because "[i]t is not

possible for intentional sexual misconduct also to be

negligent." Id. at 370, citing Fells Acres, 408 Mass. at 410.

National urges upon us a broad interpretation of Fells

Acres and Doe under which all forms of "intentional sexual

misconduct" are excluded from coverage, and under which the

three claims on which Marculetiu now relies effectively are

subsumed within the excluded claims. We are unpersuaded by

National's arguments regarding the breadth of those cases.

Although the court held that the alleged injuries in each case

could not have been "accidental," critical to the court's

reasoning was the fact that each case involved the intentional

sexual abuse of children. We do not interpret those cases, as

National would have it, as establishing a sweeping rule that an

insured who engaged in some form of volitional "sexual
 23

misconduct" with another adult necessarily must have intended to

injure that person.12

In sum, we are unpersuaded by National's argument that the

nature of L.C.'s breach of fiduciary duty claim precluded

coverage as a matter of law. For the same reason, National

cannot show that the harm from such a claim necessarily was

excluded as "expected or intended" by Marculetiu.

National next argues that the first judge erred in

concluding that the CGL policy was ambiguous about whether the

exclusion entitled "SEXUAL ABUSE EXCLUSION -- ILLINOIS" applied

outside of Illinois. According to National, the inclusion of

the reference to Illinois "merely reflects that the Illinois

version of the endorsement was included in the Policy."13

Assuming the provision can be read to that effect, this is not

12Injuries that L.C. suffered from Marculetiu's alleged
sexual advances would not be deemed "expected or intended" by
him even if he had acted with reckless disregard. See Fells
Acres, 408 Mass. at 411 ("Generally, injuries resulting from
reckless conduct do not fall into the category of 'expected or
intended' injuries, but are considered 'accidental' and thus are
covered under insurance policies").

13National suggests that the reference to Illinois is an
artifact of how IBAN obtained its coverage. Specifically,
National points out that IBAN obtained coverage through a master
policy purchased by an association of sports organizations to
which IBAN belonged, and that this association is based in
Illinois. This history may well explain why the word Illinois
came to appear in the heading, but it says next to nothing about
whether the resulting language is ambiguous.
 24

the only reasonable reading of it.14 We agree with the first

judge that the provision is ambiguous about whether the

exclusion applies outside of Illinois, and that -- in accordance

with black letter insurance law -- the ambiguity must be read in

favor of the insured. Dorchester Mut. Ins. Co., 485 Mass. at

437, citing Allmerica Fin. Corp. v. Certain Underwriters at

Lloyd's, London, 449 Mass. 621, 628 (2007). Cf. Assicurazioni

Generali, S.P.A. v. Clover, 195 F.3d 161, 165 (3d Cir. 1999) (in

choice of law case involving Pennsylvania vehicle accident,

court held "the parties at least implicitly and perhaps even

explicitly" selected Indiana law to govern where policy's

endorsement was titled "Indiana Changes").

We turn next to whether Marculetiu could claim coverage

under the CGL policy as an "insured," an issue that applies to

all of L.C.'s claims. Despite the threshold nature of this

14To be sure, as National points out, the language of the
body of the exclusion does not state that it is limited to
Illinois, but instead refers to "any" claim based on sexual
misconduct being excluded. However, the use of the word "any"
is not textually incompatible with Marculetiu's narrower
reading: the exclusion readily can be read as precluding
coverage for "any" sexual misconduct claim arising in Illinois.
Cf. Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 806
(2016) (in case where defendant argued for expansive reading of
phrase "any other services provided," to encompass services
provided before provision went into effect, "[t]he fact that
[the defendant's] preferred reading [wa]s linguistically
possible d[id] not make it a reasonable interpretation of the
parties' agreement").
 25

issue, National focused on other issues, and the first judge did

not address it.15

As noted, it was IBAN, not Marculetiu, that purchased the

CGL policy, and under the policy's terms, Marculetiu was

entitled to coverage as an insured only to a limited extent. As

an employee of IBAN, his coverage extends only to those actions

that are "within the scope of [his] employment by [IBAN] or

[taken] while performing duties related to the conduct of

[IBAN's] business." The question is whether his alleged conduct

during the trip to Romania could be said to fall within that

category.16

National initially did not press the issue whether
15

Marculetiu was an insured party. We requested supplemental
briefing from the parties on whether Marculetiu was an insured
party under National's CGL policy, as well as on the separate
issue whether the business pursuits exclusion in Safety's
homeowner policy applied. Citing to cases in which an
appellant's failure to brief an issue was deemed a waiver,
Marculetiu argues that National has waived the issue. However,
we can affirm a judgment on any grounds fairly raised by the
record, and an appellee has no duty even to file an appellate
brief. Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642
(2019). Where the insurance coverage disputes before us can be
resolved as a matter of law, and where both sides now have
briefed the two issues, we exercise our discretion to reach
them.

16IBAN's "volunteer workers" are also insured parties under
the CGL policy to the extent they are "performing duties related
to the conduct of [IBAN's] business." Marculetiu asserts that
while he was in Romania, he effectively served as "IBAN's
volunteer, 'goodwill ambassador.'" Since both paid employees
and volunteer workers are insured parties with respect to their
"performing duties related to the conduct of [IBAN's] business,"
 26

We faced an analogous situation in Timpson, 41 Mass. App.

Ct. at 344-345. The question raised there was whether the

insurer of the New England Patriots football team owed a member

of the team a duty to defend him against allegations that he

sexually harassed a female reporter in the locker room. Under

the applicable policy there, the player was an "additional

insured" only with respect to actions "within the scope of his

duties." Id. at 348. In examining whether the alleged

harassment fell within that scope, we applied a three-part test

drawn from Wang Labs., Inc. v. Business Incentives, Inc., 398

Mass. 854 (1986) (Wang).17 "Under Wang, the factors that

determine whether an employee's tortious conduct was within the

scope of his employment include whether (1) the conduct is of

we will not address separately the distinction between regular
employees and volunteers.

17Wang was not a case involving insurance coverage, but
instead dealt with whether a corporation could be vicariously
liable under G. L. c. 93A for the actions of its employee. See
Wang, 398 Mass. at 859. See also Petrell v. Shaw, 453 Mass.
377, 383-384 (2009) (diocese could not be vicariously liable for
sexual misconduct by priest because alleged conduct not within
scope of his employment). As discussed further below, insurance
coverage issues are controlled by the language of the applicable
insurance contract, which may not necessarily be consistent with
principles of vicarious liability. Metropolitan Prop. & Cas.
Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass. App. Ct. 818, 820
(2003). However, where the acts in question plainly do not fall
within the scope of employment -- as that concept has developed
in the context of vicarious liability questions -- the employee
will need to identify additional policy language that affords
him coverage as an insured party.
 27

the kind he is employed to perform; (2) it occurs substantially

within authorized time and space limits; and (3) it is

motivated, at least in part, by a purpose to serve the

employer." Timpson, supra, citing Wang, supra at 859. We

further stated that where "an employee 'acts from purely

personal motives . . . in no way connected with the employer's

interests,' he is not acting within the scope of his

employment." Timpson, supra, quoting Pinshaw v. Metropolitan

Dist. Comm'n, 402 Mass. 687, 694-695 (1988). Applying these

factors, we held that even though the alleged harassment of the

reporter took place at the player's place of employment during

work hours, and even though the player's contract required him

to "cooperate with the media," the player's alleged actions

could not fairly be characterized as falling within the scope of

his duties. Id. at 349-350. We emphasized that the specific

actions that the player allegedly took were not of the sort he

was required to perform, nor did they constitute "the kind of

conduct that he ever would be legally employed to perform." Id.

at 349. In addition, we concluded that "it is difficult to

envisage how [his] alleged conduct . . . could ever be perceived

as serving his employer." Id. Cf. O'Connell v. Chasdi, 400

Mass. 686, 690 (1987) (claims for assault and battery and

intentional infliction of emotion distress based on sexual

harassment not barred by exclusivity provision of worker's
 28

compensation act, because intentional torts at issue were "in no

way within the scope of employment furthering the interests of

the employer").

The considerations we recognized in Timpson apply even more

forcefully here. Putting aside the extent to which IBAN itself

had any involvement in the trip to Romania, the actions that

L.C. alleges Marculetiu took there cannot fairly be

characterized as serving any of IBAN's interests. Rather, those

alleged actions self-evidently served only Marculetiu's

interests. Accordingly, these actions cannot reasonably be said

to fall within Marculetiu's scope of employment, and he

therefore cannot claim status as an insured party on that basis.

However, Marculetiu argues that the CGL policy includes language

that creates a broader universe of covered employees than the

policy at issue in Timpson. Specifically, Marculetiu points to

the fact that under the policy here, an IBAN employee can be an

insured party not only with respect to actions taken within the

scope of his employment, but also for actions taken "while

performing duties related to the conduct of [IBAN's] business."

Even if such language arguably applies to some employee conduct

that lies beyond the scope of that employee's employment, we are

unpersuaded that it was intended to include the alleged behavior

at issue here. Simply put, Marculetiu's engaging in any of the

alleged misconduct at issue here cannot reasonably be said to
 29

have been done while "performing duties related to" IBAN's

business. Therefore, we conclude that National had no duty to

defend Marculetiu in his capacity as IBAN's employee (or

"volunteer worker").18

To the extent that Marculetiu claims that National had a

separate duty to defend him in his role as an officer or

director of IBAN, we similarly are unpersuaded. Under the

express terms of the CGL policy, as an officer and director, he

is entitled to a defense only with respect to his duties as an

officer and director. IBAN's alleged negligent hiring and

supervision of Marculetiu is the only theoretical respect with

which his serving as an officer or director is implicated by

L.C.'s allegations. An employee who commits an intentional tort

cannot be liable for negligently hiring or failing to supervise

himself. See, e.g., DiSalvio v. Lower Merion High Sch. Dist.,

158 F. Supp. 2d 553, 560-561 (E.D. Pa. 2001) ("employee

wrongdoer . . . cannot be liable for negligent hiring, retention

or supervision of himself").19

18Our holding is not inconsistent with Cleary, 81 Mass.
App. Ct. at 48 (rejecting insurer's claim it had no duty to
defend sexual harassment claim). The issue in Cleary was
whether the company's insurer had a duty to defend it and its
president, not the person accused of the sexual harassment. Id.
at 41.

19Our conclusion that National had no duty to defend
Marculetiu in the underlying litigation should not be taken as
bearing on whether National had a duty to defend IBAN in that
 30

3. Homeowner's policy. We disagree with the second

judge's reasoning with regard to why Safety had no duty to

defend Marculetiu under his homeowner's policy. For the reasons

discussed above, L.C.'s claim for breach of fiduciary duty is

not excluded from coverage simply because it is based on

volitional conduct. In addition, as noted, the judge ruled

Safety had no duty to defend L.C.'s false imprisonment claim

primarily because of the judge's premise that the false

imprisonment claim was based solely on Marculetiu's allegedly

holding down L.C. during the sexual assaults.20 That premise

does not square with L.C.'s complaint, which sketches a more

action or on IBAN's potential liability to L.C. In addition, we
note that employers face potential liability for sexual
harassment by their employees even where the actions at issue
may be outside the scope of their employment. See, e.g.,
College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n
Against Discrimination, 400 Mass. 156, 167 (1987) (employer
liable for supervisor's sexual harassment of supervisee
employee).

20The judge also found the false imprisonment claim as
necessarily falling outside the scope of coverage on the ground
that it was barred by the exclusion for "violation[s] of . . .
penal law." He did not explain what criminal laws would have
been broken. We note that Marculetiu has not faced any criminal
charges related to L.C.'s allegations. See Metropolitan Prop. &
Cas. Ins. Co. v. Morrison, 460 Mass. 352, 353 (2011) ("a guilty
plea does not negate an insurer's duty to defend, even where the
duty to defend would be negated by a criminal conviction after
trial, because a guilty plea is not given preclusive effect and
is simply evidence that the insured's acts were intentional and
criminal").
 31

broadly based claim.21 Nevertheless, for the reasons that

follow, we again hold that the insurer is entitled to a judgment

in its favor based on a ground the judge did not reach.

As noted, the coverage that Marculetiu seeks is subject to

a business pursuits exclusion under which Safety bears no

liability for "[i]njury arising out of or in connection with a

'business' engaged in by the 'insured.'" As we observed in a

case construing the scope of the business practices exclusion,

"[t]he terms 'arising out of' and 'in connection with' are not

to be construed narrowly but are read expansively in insurance

contracts." Metropolitan Prop. & Cas. Ins. Co. v. Fitchburg

Mut. Ins. Co., 58 Mass. App. Ct. 818, 820-821 (2003). Accord

Nguyen v. Arbella Ins. Group, 91 Mass. App. Ct. 565, 568-569

(2017). Moreover, it bears remembering that "the manifest

design of homeowners' insurance is to protect homeowners from

risks associated with the home and activities related to the

home." Metropolitan Prop. & Cas. Ins. Co., supra at 823,

quoting Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245

(1986).

21At oral argument, Safety's counsel notably did not seek
to defend the second judge's premise that the factual
allegations underlying L.C.'s false imprisonment claim were
confined to the rapes themselves. Instead, she argued that the
actions that Marculetiu allegedly took to confine L.C.
constituted one of the means through which he allegedly induced
her to submit to his sexual advances.
 32

It is uncontested that any injuries suffered by L.C. from

Marculetiu's alleged acts occurred out of the country on a work-

related trip. Under these circumstances, we agree with Safety

that regardless of whether Marculetiu's alleged actions were

motivated by personal or business reasons, any resulting

injuries arose out of or in connection with Marculetiu's

business pursuits, and thus are excluded. See Metropolitan

Prop. & Cas. Ins. Co., 58 Mass. App. Ct. at 820. See also Fells

Acres, 408 Mass. at 412. Contrast Dorchester Mut. Ins. Co., 485

Mass. at 446 (objectively reasonable insured would not interpret

exclusion in homeowner's policy for "physical abuse" as

precluding coverage for pushing third party he had just met).

With regard to any sexual harassment claims, our conclusion is

reinforced by the fact that any liability that Marculetiu faces

depends on his having been L.C.'s employer or teacher. Lowery

v. Klemm, 446 Mass. 572, 580 & n.10 (2006). See Zimmerman v.

Safeco Ins. Co. of Am., 605 N.W.2d 727, 731 (Minn. 2000)

("sexual harassment of an employee falls within the general

business pursuits exclusion of the [homeowner's] policy because

by definition it occurs in the workplace"). See also Greenman

v. Michigan Mut. Ins. Co., 173 Mich. App. 88, 94 (1988) (sexual

harassment claim falls within business pursuits exclusion where
 33

it "could not, by definition, exist outside of the employer-

employee relationship").22

Conclusion. Because we conclude that neither insurer had a

duty to defend Marculetiu with respect to the underlying action,

we affirm the judgment.23 We similarly affirm the orders denying

Marculetiu's motions for reconsideration.

22Our holding is consistent with Preferred Mut. Ins. Co. v.
Vermont Mut. Ins. Co., 87 Mass. App. Ct. 510 (2015) (Preferred).
There, a party was injured after the homeowners' son had failed
to secure the railing on the home's second floor deck. The son
both lived at the home (which made him an additional insured
under his parents' homeowner's policy) and had his own
commercial insurance for his contracting business. Id. at 511.
We ruled that the homeowners' insurer had failed to prove that
the business pursuit exclusion negated the insurer's duty to
defend the son. In reaching this conclusion, we concluded that
"determining when an activity arises out of or in connection
with the insured's business" should be done in accordance with
"a two-prong functional test." Id. at 514. "The first element
of the test is 'continuity' -- that is, the activity in question
must be one in which the insured regularly engages as a means of
livelihood; the second element is 'profit motive' -- that is,
the purpose of the activity must be to obtain monetary gain."
Id. However, in applying that two-pronged test to the case
before us, the question is not whether the alleged acts of
sexual misconduct met that test, but whether such acts arose out
of business activities that met the test. See Nguyen, 91 Mass.
App. Ct. at 569-570 (distinguishing Preferred). Because
Marculetiu's alleged actions occurred in the context of a work-
related relationship on a work-related trip far from home, this
is not a close question. Contrast Wilkinson v. Citation Ins.
Co., 447 Mass. 663, 668-669 (2006) (insurance coverage did lie
under homeowner's policy with respect to damage to property
related to insured's hobby caused by fire at insured's home).

23The judgment did not declare the rights of the parties,
as Marculetiu's complaint had requested, but instead simply
dismissed his complaint. Marculetiu has not challenged the form
of the judgment as constituting separate error, and we therefore
 34

So ordered.

need not address the issue. See Buffalo-Water 1, LLC v.
Fidelity Real Estate Co., 481 Mass. 13, 18-20 (2018).