Home ALLAN LIPSON vs. QUEEN INSURANCE COMPANY OF AMERICA.

2 Mass. App. Ct. 901

December 12, 1974

The plaintiff, the insured under a so-called "Massachusetts Homeowners Policy" issued by the defendant, has appealed from a final declaratory decree adverse to his contention that the defendant had been obligated to defend him in an action of tort brought against him by one Barbara Lipson (Barbara). The policy afforded coverage against liability for "damages because of bodily injury" but specifically excluded from that coverage "bodily injury . . . caused intentionally by . . . the [i]nsured." The allegations (never amended) of the single count of Barbara's declaration against the plaintiff accused him of a violent and vicious assault and battery on her, conduct clearly excluded from the coverage of the policy. Compare Sontag v. Galer, 279 Mass. 309 , 312-313 (1932); Bowen v. Lloyds Underwriters, 339 Mass. 627 , 629 (1959); see Sabatinelli v. Butler, 363 Mass. 565 , 567-568 (1973). The defendant, upon receipt of a copy of the declaration, properly disclaimed liability under the policy. Fessenden School, Inc. v. American Mut. Liab. Ins. Co. 289 Mass. 124 , 130 (1935). Magoun v. Liberty Mut. Ins. Co. 346 Mass. 677 , 681 (1964). Vappi & Co. v. Aetna Cas. & Sur. Co. 348 Mass. 427 , 430 (1965). Massachusetts Turnpike Authy. v. Perini Corp. 349 Mass. 448 , 457 (1965). The record is devoid of evidence which would support an inference that the plaintiff ever advised the defendant, at any time prior to the settlement of the action brought by Barbara, of his present (and still somewhat inarticulate) contention that his conduct toward Barbara had been other than intentional. Indeed, no real effort was made, even in these proceedings, to provide factual support for such a dubious contention. Final decree affirmed.

Home ARTHUR ARRUDA vs. STEPHEN A. VINCENT & another.

2 Mass. App. Ct. 901

December 12, 1974

The defendants have appealed from a final decree of the Superior Court which establishes the dollar amount of their liability to the plaintiff for his share of the assets of a family partnership. The plaintiff withdrew from the partnership in 1951 but delayed until the end of 1971 to file the present bill for an accounting. 1. The defendants' principal argument before us is that such a delay necessarily amounted to laches (which was pleaded) because it extended beyond the period of the statute of limitations (which was not pleaded). We do not believe the law supports any such contention. Although there are cases in which the period of limitations has been one of the factors considered in determining the presence or absence of laches (See, e.g., Calkins v. Wire Hardware Co. 267 Mass. 52 , 69

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[1929]; Norton v. Chioda, 317 Mass. 446 , 452 [1945]), it would appear that the court has always looked to the question of possible disadvantage or prejudice to the defendant (either actual or necessarily inferred from the circumstances), even in those instances in which the delay in bringing suit has extended beyond the period of limitations. See Chandler v. Lally, 308 Mass. 41 , 44-45 (1941); Whitaker v. Boston & Maine R.R. 343 Mass. 684 , 685 (1962); Travers v. Grossman, 352 Mass. 182 , 184-185 (1967). 2. We would not be justified on this record in holding that there was laches as matter of law. The master's ultimate finding that the plaintiff was not barred by laches is supported by and not inconsistent with any of his subsidiary findings. The existence of the partnership and the plaintiff's aliquot share therein were admitted by the pleadings; the date of the plaintiff's withdrawal from the partnership was not seriously in dispute. The amount awarded to the plaintiff (without interest) in the final decree was based on an estimate of the fair market value of the net assets of the partnership at the time of withdrawal which was given by one of the partners who, it had been agreed, would keep the books of the partnership. The suggestions of disadvantage or prejudice to the defendants are faint at best.

Decrees affirmed.