The Supreme Judicial Court has not specifically addressed the issue of whether public policy precludes coverage for punitive damages. In the context of underinsured motorist coverage, however, the court held that underinsured coverage did not apply to punitive damages, reasoning that punitive damages are designed to punish the wrongdoer and that enabling the insured to pass this on to the insurer would not serve this purpose. See Santos v. Lumbermens Mut. Cas. Co., 408 Mass. 70 (1990). Courts in other jurisdictions that have decided the issue have reached varying results.
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"Bodily Injury" is usually defined in insurance policies as follows: "Bodily Injury' means bodily injury, sickness or disease sustained by a person, including death, resulting from any of these." "Bodily injury" in the context of an insurance policy means "actual physical injuries to the human body and the consequences thereof." Richardson v. Liberty Mut. Fire Ins. Co., 47 Mass.App.Ct. 698, 702 (1999).
It is well settled in insurance law that "bodily injury" and "personal injury" are not synonyms and that these phrases have two distinct definitions. "Personal injury" is broader and includes not only physical injury but also any affront or insult to reputation or sensibilities of person, while term "bodily injury," by comparison, is a narrower term and encompasses only physical injuries to the body and consequences thereof. Allstate Ins. Co. v. Diamant, 401 Mass. 654, 656 (1988).
Thus, a policy covering losses for "bodily injury" will not cover purely emotional damages without some accompanying physical harm. Id. A personal claim for negligent infliction of emotional distress and a representative wrongful death claim are subject to same "per person" limit of liability coverage under a standard personal automobile insurance policy. See McNeill v. Metropolitan Property and Liability Ins. Co., 420 Mass. 587, 590 (1995).
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Insurance polices ordinarily include coverage for liability for "property damage" caused by an occurrence. The comprehensive general liability policy defines property damage as "injury to or destruction of tangible property." See e.g. Hamilton Die Cast, Inc. v. United States Fidelity & Guar. Co., 508 F.2d 417, 419-420 (7th Cir. 1975).
Property damage under an insurance policy does not require actual physical damage but can include intangible damage such as the diminution in value of tangible property, provided that the loss is caused by an occurrence during the policy period. See Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147-50 (1984).
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The term "occurrence" is typically defined as an "accident, including continued or repeated exposure to conditions which results in bodily injury or property damage," or substantially similar language. The resulting bodily injury or property damage must be fortuitous. There must be an "occurrence" within the policy period to trigger a coverage obligation. Generally, each occurrence triggers a separate policy limit. In determining whether there is coverage during a particular policy period, the courts will look to a triggering event. Under a property damage case the courts will often look to the happening of the actual property damage, and not the causative act, as to the event triggering coverage under an occurrence-based policy. Trustees of Tufts University v. Commercial Union Ins.Co., 415 Mass. 844, 616 N.E.2d 68 (1993).
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A homeowners policy generally covers any consortium injury that is not itself subject to a policy exclusion. See Worcester Ins. Co. v. Fells Acre Day School, Inc., 408 Mass. 393, 414 (1990). The Courts have further held that pursuant to a homeowner's policy, consortium claims are not derivative of coverage for the underlying bodily injury. Thus, it is an independent injury, explicitly included in the policy coverage through the policy's definition of bodily injury.
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Liability policies generally exclude coverage for bodily injury or property damage that is "expected or intended" by the insured. In claims involving sexual assault on minors, intent to cause harm has been inferred as a matter of law. See e.g. Worcester Ins. Co. v. Fells Acre Day School, Inc., 408 Mass. 393 (1990). In Doe v. Liberty Mutual Ins. Co., 423 Mass. 366 (1996), the Supreme Judicial Court reaffirmed this principle, holding that coverage was excluded under the "intentional act" exclusion for a minor plaintiff's claims against the insured alleging unlawful sexual contact.
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Commercial General Liability policies typically contain exclusions intended to preclude coverage for property damage to the insured's own product or work arising out of the insured's products or work. Exclusions relating to faulty workmanship have been upheld in Massachusetts. See Lusalon, Inc. v. Hartford Acc. and Indem Co., 400 Mass. 767 (1987) (holding that an exclusion for faulty workmanship barred coverage for claim against insured/subcontractor for damage to a door and window frame caused by the insured's alleged unworkmanlike cleaning of frames). See also Dorchester Mutual Fire Ins. Co. v. First Kostas Corp., Inc., 49 Mass.App.Ct. 651 (2000) (holding that exclusion in policy for property damage to impaired property arising out of a "defect, deficiency, inadequacy . . ." in the insured's work precluded duty to defend and indemnify where damages alleged in underlying suit arose from poor workmanship by painter); Donovan v. Commercial Union Ins. Co., 44 Mass.App.Ct. 596 (1998) (ruling that exclusion for faulty workmanship in general liability policy prevented coverage for defectively constructed wall).
CGL policies do, however, generally provide coverage for consequential damages such as damage to persons or other property arising from the insured's work. See generally Commerce Ins. Co. v. Betty Caplette Builders, Inc., 420 Mass. 87, 90 (1995).
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