CITY OF NEWTON vs. ERIC R. KRASNIGOR & others [Note 1]; NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY, intervener (and a consolidated case [Note 2]).

LIACOS, J. On the night of August 15, 1981, three youths broke into the Meadowbrook Junior High School in Newton and started fires which resulted in extensive damage to the

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school. The city of Newton brought an action of tort for damages against the three youths, Eric R. Krasnigor, Michael Masterson, and Leslie Alberts. The Norfolk & Dedham Mutual Fire Insurance Company (Norfolk & Dedham), the insurer of the parents of Eric Krasnigor, intervened in that action and also brought an action seeking a declaration that its homeowners' policy did not provide coverage. The homeowners' policy covered property damage "for which the insured is legally liable" but excluded "property damage . . . which is expected or intended by the insured." [Note 3]

The actions were consolidated for trial. At trial, however, only the tort action for damages was tried to a jury. As to the declaratory judgment action, the judge stated that he would decide that action at the conclusion of the jury trial. The tort action was submitted to the jury on written questions for them to make written findings (special verdicts). See Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974).

The jury, in response to the written questions, found, among other things, that "Eric Krasnigor intended to start a fire or fires at the Meadowbrook Junior High School." It also found that Krasnigor's actions proximately caused damage to the school's science laboratory and to its library. The jury found further that Krasnigor did not "specifically intend[] to cause the substantial damage which was ultimately sustained" at the school and that he was not "substantially certain that his actions at the [school] . . . would result in the substantial damage which was ultimately sustained."

The trial judge, relying on Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984), declared that the exclusion in the insurance policy did not apply to the activities of Eric Krasnigor at the Meadowbrook Junior High School. [Note 4] Accordingly,

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he entered judgment against the insurance company in both actions.

The Appeals court affirmed the judgments. Newton v. Norfolk & Dedham Mut. Fire Ins. Co., 26 Mass. App. Ct. 202 (1988). The court agreed with the insurer's contention that "Abernathy does not require the insured to intend the precise injury which results for the exclusion to apply," and that "the exclusion is also in effect when the insured intends to cause some damage . . . but not necessarily the severity of damage that actually occurs." Id. at 203. However, the Appeals Court determined that the insurer did not adequately apprise the trial judge of its arguments and thus could not raise the issue on appeal.

The Appeals Court also stated the following: "We reject, however, the insurer's contention, made both to the trial judge in the declaratory judgment action and on appeal, that a deliberate intent to set a fire (as found by the jury's answer to the special question) as matter of law implies an intent to cause some property damage." Id. at 204 n.3.

We granted Norfolk & Dedham's petition for further appellate review. We hold that the jury's finding that Krasnigor deliberately intended to set a fire, in the circumstances of this case, implies, as matter of law, an intent to cause some property damage. We further hold that the exclusion for property damage "which is expected or intended by the insured" applies to Krasnigor's activities. Accordingly, we reverse the judgment against Norfolk & Dedham in the declaratory judgment matter and modify the tort judgment to delete the entry of judgment against Norfolk & Dedham.

We summarize the evidence before the jury, consistent with the jury's answer to the written questions. On the night of August 15, 1981, Krasnigor gathered with his friends, Michael Masterson and Leslie Alberts. He told them that he wanted to break into the Meadowbrook Junior High School and to start a fire. Krasnigor broke a window, entered the school, and opened the door for his friends. In the art room on the first floor of the school, Alberts and Masterson found an art board and set it on fire. In a hallway, Alberts started a fire in a trash

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barrel filled with paper, and, in the science laboratory, Alberts, Masterson, and Krasnigor burned files.

Krasnigor and Masterson proceeded to the school's library. Krasnigor brought some boxes of books together and pulled additional books from the shelves. He placed matches in the boxes, amongst the books, and set the books on fire. Masterson did the same. By the time Krasnigor and Masterson had completed their efforts, several separate fires were burning in the library. Krasnigor made no effort to extinguish the fires before he left the school. Shortly thereafter, when the police officers who had received a report of a fire at the school approached Krasnigor outside the school, they found a partially filled box of matches in his possession. The Meadowbrook Junior High School suffered 1.3 million dollars in damage as a result of the fires. Almost all of the damage was sustained in the library.

We agree with Norfolk & Dedham's argument that the jury's finding that Krasnigor intended to start the fires at the school implies, as matter of law, that he harbored the intent to cause some property damage, even though, as the jury found, he did not intend the "substantial damage . . . ultimately sustained" (emphasis supplied). In reaching this conclusion, we state that the policy's exclusion applies when there is a showing of a deliberate setting of a fire by the insured with the intent of causing some property damage. The insured need not intend to cause the exact extent of the injury which results, in order for the exclusion to apply. Thus, the Appeals Court was correct in its distinction of Quincy Mut. Fire Ins. Co. v. Abernathy, supra. See Newton v. Norfolk & Dedham Mut. Fire Ins. Co., supra at 204-205, and cases cited; Terrio v. McDonough, 16 Mass. App. Ct. 163, 169 (1983). [Note 5] See also, e.g., United States Fidelity & Guar. Co. v. American Employer's Ins. Co., 159 Cal. App. 3d 277, 289-291 (1984); Unigard Mut. Ins. Co. v. Spokane School Dist. No. 81, 20 Wash. App. 261, 264-265

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(1978); Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 523-525 (1986); State Farm Fire & Casualty Co. v. Muth, 190 Neb. 248, 252 (1973).

In Abernathy, we 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." Quincy Mut. Fire Ins. Co. v. Abernathy, supra at 84. The "resulting harm" concerns the type of harm inflicted -- whether personal injury or property damage -- and not the extent of the harm actually sustained.

Abernathy involved an exclusion of coverage similar to that included in the insurance policy at issue here. The inquiry which we required on remand in the Abernathy case [Note 6] concerned whether the youth in that case who threw a piece of blacktop either "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" (emphasis added). Id. at 87. In Abernathy, there had been no showing that the insured was even aware of the presence of the child who was injured by the piece of blacktop. Id. at 88. In order for the insurance exclusion to apply, there had to be "a showing that the insured knew to a substantial certainty that the bodily injury would result." Id. at 86. The crucial question, then, was whether the youth intended, or expected, to cause any personal injury, not whether he intended to cause the precise magnitude of the injuries sustained. [Note 7]

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In this case, in order for the exclusion to apply there must be a showing that Krasnigor intended, or expected, to cause property damage, not that he intended, or expected, to cause the exact damage which actually occurred. [Note 8] The jury found, in response to a written question, that "Krasnigor intended to start a fire or fires at the Meadowbrook Junior High School," and that his actions were the proximate cause of damage to the library and to the science laboratory.

Considering the facts of this case, we must conclude, as matter of law, that Krasnigor intended to cause some property damage to the school. If there had been evidence that Krasnigor "started a fire" for warmth, or to guide his way through the darkness, or for any other motive, we might conclude that the intent to cause some damage could not be inferred. [Note 9] But no evidence was presented to support such theories. Rather, Krasnigor broke into the school, placed matches in several boxes of

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books, lit those boxes of books, and left the school while several small fires were blazing. Given such facts, it is impossible not to conclude that Krasnigor intended, or expected, to cause some property damage. See Terrio v. McDonough, supra at 169. See also, e.g., Home Ins. Co. v. Neilsen, 165 Ind. App. 445, 450-451 (1975); Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn. 1978).

Accordingly, the provision excluding "property damage . . . which is expected or intended by the insured" applies to Krasnigor's actions. The judgments against the insurance company in both actions are reversed.

So ordered.