exclusion clause in Massachusetts

2013Cf. Roche v. Roche, 22 Mass. App. Ct. 306, 311 (1986) (“There would be something anomalous about giving a defendant the benefit of claim preclusion when that defendant took steps calculated to assure the exclusion of the claim from the prior litigation”).

1998“There would be something anomalous about giving a defendant the benefit of claim preclusion when that defendant took steps calculated to assure the exclusion of the claim from the prior litigation.” Roche v. Roche, 22 Mass. App. Ct. 306, 311 (1986), citing Restatement (Second) of Judgments § 26 comment j (1982).

2000Co. v. Talhouni, 413 Mass. 781, 785-86 (1992) (“[E]vidence of vol untary intoxication is relevant to determining the presence or absence of intent with reference to an exclusion clause”).

1994Distasteful as the proposition may be, it is, however, the rule in Massachusetts: “[Efyidence of voluntary intoxication is relevant to determining the presence of absence of intent with reference to an exclusion clause.” Hanover Insurance Co. v. Talhouni, 413 Mass. 781, 787 (1992).

2023See id. at 244-245 .

1995There, the court reaffirmed that severability clauses, such as the one in Hanover’s policy, generally operate to limit the meaning of the term “insured party” in an exclusion clause to the party actually seeking coverage. 398 Mass. at 40 .

2012In the Beckford decision, the court held that the plain and ordinary meaning of the exclusion clause applied to the factual circumstances presented, whereby a general contractor retained another contractor “to perform work on real property owned by [the owner that] necessarily was for the benefit of [the owner].” Id.

2012Moreover, the court interpreted the exclusionary provision in the Beckford decision to “clearly contemplate^ that a contractor could be retained by a party other than the insured on the insured’s behalf.” Id.

2026Avalos, 454 Mass. at 7 , quoting Commonwealth v. LaVelle, 414 4 Mass. 146, 154 (1993).

2015See Julian v. Randazzo, 380 Mass. 391 , 396 & n.1 (1980) (civil suit against police officers; jury properly charged regarding limits on officer’s use of deadly force in making arrest in accordance with Model Code of Pre-Arraignment Procedure § 120.7 [1975]); Commonwealth v. Klein, 372 Mass. 823, 829-830 (1977) (similar limitations applied in criminal case against civilian who used deadly force in citizen’s arrest; jury properly charged in accordance with Model Penal Code § 3.07).

2015See Terry v. Ohio, 392 U.S. 1, 27 (1968). 6 The Commonwealth’s argument for the exclusion of this defense was essentially that the defendant used deadly force against the victim, and that such force is authorized for the purpose of effecting an arrest only when the arrest is for a felony and the crime for which the arrest is made involved conduct *584 including the use or threatened use of force, or there is a substantial risk that the person to be arrested will cause death or serious bodily harm if he or she remains at large.

2015See Julian v. Randazzo, 380 Mass. 391 , 396 & n.1 (1980) (civil suit against police officers; jury properly charged regarding limits on officer’s use of deadly force in making arrest in accordance with Model Code of Pre-Arraignment Procedure § 120.7 [1975]); Commonwealth v. Klein, 372 Mass. 823, 829-830 (1977) (similar limitations applied in criminal case against civilian who used deadly force in citizen’s arrest; jury properly charged in accordance with Model Penal Code § 3.07).

2008See Commonwealth v. Woods, 419 Mass. 366, 370-371 (1995). c.

2003The Court denied the motion based on the exclusion from immunity set forth in §10(j) (3) for “any claim based upon negligent maintenance of public property." Thereafter, RCC moved for reconsideration directing the Court’s attention to the decision of the Supreme Judicial Court in Brum v. Dartmouth, 428 Mass. 684, 697 (1999).

2000See Preferred Mutual Insurance Co. v. Gamache, 42 Mass.App.Ct. 194 , 199 n.7, affirmed, 426 Mass. 93, 95 (1997) (noting that the term “intentional" and the phrase “intentional act” do not have a fixed legal meaning and can be understood to refer to conduct that is ‘accidental" within the meaning of that term in an insurance policy).

2000See Preferred Mutual Insurance Co. v. Gamache, 42 Mass.App.Ct. 194 , 199 n.7, affirmed, 426 Mass. 93, 95 (1997) (noting that the term “intentional" and the phrase “intentional act” do not have a fixed legal meaning and can be understood to refer to conduct that is ‘accidental" within the meaning of that term in an insurance policy).

1993Koiser v. Continental Insurance Co., 299 Mass. 601, 604 (1938).

1993See e.g., Steigler v. Insurance Company of North America, 384 A.2d 398, 400 (Del. 1978).

1986See Dwight v. Dwight, 371 Mass. 424, 430 (1976); Restatement (Second) of Judgments § 26 comment j (1982).

1986See Dwight v. Dwight, 371 Mass. 424, 430 (1976); Restatement (Second) of Judgments § 26 comment j (1982).

1984Co., 262 Mass. 522, 526 (1928). 3 The Appeals Court appears to have equated the definition of “expected” with that of “intended” for purposes of determining whether an incident falls within the exclusion clause.

1984See Community Nat’l Bank v. Dawes, 369 Mass. 550, 554 (1976); Mass. R.

1979See LeBlanc v. Commonwealth, 363 Mass. 171, 173-174 (1973). 10 As the Supreme Court of Pennsylvania said in rejecting an instruction given in a case much like ours, "the jury must be fully aware that the finding of malice requires the exclusion of the defense of self-defense”; an instruction is erroneous if it "fail[s] to explain the relationship between malice and evidence of self-defense [and] it indicates that both malice and self-defense may be legally established in a murder prosecution, when in fact the two are mutually exclusive.” Commonwealth v. Heatherington, 477 Pa. 562, 568, 569 (19