A Massachusetts court ruled that kidnapping and rape were excluded from coverage by a CGL policy's assault and battery exclusion in Fuller v. First Financial Ins. Co., No. SJC-09677, 2006 WL 3615392 ( Mass. Dec. 14, 2006).
Jane Doe went to visit a friend at an apartment building. While entering the building, she was approached from behind by Elwood Furrowh. Furrowh put a knife to her back, forced her off the premises and to his own apartment, raped her, and tried to kill her. Doe escaped and reported the incident to the police. Furrowh was arrested and plead guilty to aggravated rape, assault by means of a dangerous weapon, assault with intent to maim, assault and battery, and kidnapping.
Doe filed suit against Robert Fuller, the owner of the apartment building, stating that he was responsible for the attack due to negligence in providing security at the building. Fuller carried a general liability policy on the building issued through First Financial, which declined to defend Fuller from Doe's claims based on the exclusion for assault and battery.
Fuller settled with Doe for $2 million, of which $1 million was attributable to the physical beating, stabbing and attempted murder, and $1 million attributable to the rape and kidnapping.
Doe conceded that the physical beating, stabbing, and attempted murder portion was excluded by the assault and batter exclusion, but she argued that rape and kidnapping should not be excluded. She alleged that “rape is a specific and independent crime that differs significantly from assault and battery” and that “kidnapping consists of any restraint on a person's liberty and need not involve any particular showing of force.”
First Financial, though, said that “under Massachusetts law, every rape necessarily includes an assault or a battery or both.”
The court found the policy language to be unambiguous. It also said that “Doe's rape and kidnapping would not have occurred absent the initial assault and battery.” The court, then, found that the exclusion applied.