CITY OF NEWTON vs. NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY, intervener, (and a companion case).

DREBEN, J. After a fire caused extensive damage to the Meadowbrook Junior High School in Newton, the city brought an action against three young persons who, it alleged, had started a fire or fires in the school. The insurer of one of the defendants intervened and also brought an action seeking a declaration that its homeowner's policy did not provide coverage.

The actions were consolidated for trial. In response to special questions, a jury found that the insured, Eric R. Krasnigor, had "intended to start a fire or fires" at the school. Because the jury also found that Krasnigor neither "specifically intended to cause the substantial damage which was ultimately sustained" at the school nor "was substantially certain that his actions at the [school] would result in the substantial damage which was ultimately sustained," the trial judge, relying on

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Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984), declared that the activities of the insured were not excluded by the policy. The policy provided coverage for property damage "for which the insured is legally liable" but excluded "property damage . . . which is expected or intended by the insured." The insurer appeals from judgments entered against it in both actions.

The insurer urges us to decide that Abernathy does not require the insured to intend the precise injury which results for the exclusion to apply. Rather, the insurer asserts, the exclusion is also in effect when the insured intends to cause some damage (here property damage) but not necessarily the severity of damage that actually occurs. The city contends that Abernathy has answered this question against the insurer. While we consider the construction urged by the insurer correct and not barred by Abernathy, we affirm because the distinction now argued on appeal was not brought to the attention of the trial judge.

In Abernathy, a teenager threw a piece of "blacktop" at a car driven by Ellen Abernathy. The rock shattered the car's side window, injuring Ellen and her daughter. Id. at 82. The insurer claimed that a clause providing that the policy "does not apply . . . to bodily injury or property damage which is either expected or intended from the standpoint of the Insured" foreclosed coverage. In reversing a summary judgment in favor of the insurer and remanding for further proceedings, the court held that two critical issues remained for resolution: "whether [the teenager] intended, by his volitional act, to cause injury to the Abernathys or whether he knew to a substantial certainty that such injuries would ensue from his actions." Id. at 87. Portions of the remainder of the court's discussion appear in the margin. [Note 1]

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The city relies on the following language of Abernathy:

"This court consistently has stated that the resulting injury which ensues from the volitional act of an insured is still an `accident' within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur. See Sheehan v. Goriansky, [ 321 Mass. 200, 204-205 (1947)]; Sontag v. Galer, 279 Mass. 309, 312-313 (1932). Cf. Bohaker v. Travelers Ins. Co., 215 Mass. 32, 33-34 (1913)." Id. at 84. [Note 2]

Taken out of context, the city's reading is plausible. When, however, the focus of the opinion, the cases to which the court cites, and the authorities elsewhere are considered, we think the foregoing quotation does not require the city's construction and that Abernathy does not preclude the construction sought by the insurer: namely, that the exclusion may be invoked by a showing of a deliberate setting of a fire by the insured with the intent of causing some property damage. [Note 3] Cf. Terrio v. McDonough, 16 Mass. App. Ct. 163, 169 (1983). The following cases, involving similar exclusions, support the insurer's position. See United Servs. Auto. Assn. v. Elitzky, 358 Pa.

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Super. 362, 373-375 (1986) ("clause excludes only injury and damage of the same general type which the insured intended to cause"). See also, e.g., United States Fid. & Guar. Co. v. American Employer's Ins. Co., 159 Cal. App. 3d 277, 289-291 (1984); Butler v. Behaeghe, 37 Colo. App. 282, 287-288, (1976); Hartford Fire Ins. Co. v. Spreen, 343 So.2d 649, 651 (Fla. Dist. Ct. App. 1977); Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (1982); Farmers Ins. Group v. Sessions, 100 Idaho 914, 918 (1980); Aetna Cas. & Sur. Co. v. Freyer, 89 Ill. App. 3d 617, 620 (1980); Home Ins. Co. v. Neilsen, 165 Ind. App. 445, 451 (1976) ("A defendant may assert the rock was accidentally released or was not aimed at the victim, but he will not be heard to say he intended to throw the rock softly."); Willis v. Hamilton Mut. Ins. Co., 614 S.W.2d 251, 252-253 (Ky. Ct. App. 1981); Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn. 1978); Mutual Serv. Cas. Ins. Co. v. McGehee, 219 Mont. 304, 307-308 (1985); State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 252 (1973); Lyons v. Hartford Ins. Group, 125 N.J. Super. 239, 246 (App. Div. 1973); Oakes v. State Farm Fire & Cas. Co., 137 N.J. Super. 365, 367 (1975); Pachucki v. Republic Ins. Co., 89 Wis.2d 703, 714 (1979). Contra MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 459 (1984). See State Farm Ins. Co. v. Trezza, 121 Misc.2d 997, 1003 (N.Y. Sup. Ct. 1983); Miller v. Fidelity-Phoenix Ins. Co., 268 S.C. 72, 75 (1977). See generally Keeton, Insurance Law Section 5.4(b) (1971); Annot., 31 A.L.R. 4th 957 (1984).

Although not foreclosed by Abernathy, the insurer is nevertheless precluded from raising this issue on appeal as it did not adequately apprise the trial judge of its claims. None of the following documents: the insurer's complaint, [Note 4] its requests for instructions, [Note 5] its motion for a directed verdict, its

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proposed special questions, [Note 6] or its objections to the judge's charge, indicated to the judge its present contention that if its insured intended to cause any property damage by burning, the policy exclusion would apply. The insurer never informed the judge that it sought to direct the jury's attention to the question whether Krasnigor intended to cause any property damage at all to the school or its contents.

Only after the jury, in the midst of their deliberations, had submitted a question as to intent, did the insurer hint that the youth did not need to intend the extensive damage which had occurred. The entire colloquy of the judge and counsel for the insurer is reproduced in the margin. [Note 7] We do not think the insurer's

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argument was sufficiently precise or timely to change the basis on which the case had been presented to the jury. The focus was once again a plea for the use of the term "resulting" damage which counsel for the insurer had sought throughout the trial as opposed to the terms "substantial" and "ultimate." See notes 4, 5 and 6, supra. See Brighetti v. Consolidated Rail Corp., 20 Mass. App. Ct. 192, 197-198, and notes 5 & 7 (1985). See also Huff v. Holyoke, 386 Mass. 582, 583 n.2 (1982); MacCuish v. Volkswagenwerk A.G., 22 Mass. App. Ct. 380, 397 (1986), S.C., 400 Mass. 1003 (1987).

Judgments affirmed.