Original civil complaint for declaratory judgement filed. June 10, 2022 (2024)

On June 10, 2022 aComplaint,Petitionwas filedinvolving a dispute betweenHomeowners Choice Property & Casualty Insurance Co.,andDelaney, Julie,Delaney, Sean,Delaney, William,Ropes, Jennifer,for Equitable Remediesin the District Court of Plymouth County.

 
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 6/10/2022 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. Homeowners Choice Property & Casualty Ins. Co., Plaintiff, Vv. Sean Delaney, William Delaney, Julie Delaney, and Brayden Ropes, Minor, by His Mother and Next Friend Jennifer Ropes, Defendants. COMPLAINT FOR DECLARATORY JUDGMENT 1 Plaintiff, HOMEOWNERS CHOICE PROP INSURANCE COMPANY, is a foreign corporation with a primary place of business in Tampa, Florida. Plaintiff is licensed to conduct business in the Commonwealth of Massachusetts. 2 Defendants Sean Delaney, William Delaney and Julie Delaney (hereinafter collectively “DELANEY”) are, or were at all relevant times, residents of 97 Flint Locke Drive, Duxbury, Plymouth County, Massachusetts. 3. Defendant Brayden Ropes, a Minor, by His Mother and Next Friend Jennifer Ropes (hereinafter “ROPES”) is, or was at all relevant times, a resident of 219 Chestnut Street, Duxbury, Plymouth County, Massachusetts. 4 Plaintiff insurer invokes the jurisdiction of G.L. c. 231A and seeks declaratory relief as a case in controversy exists between the parties. -1-\penior Court - Plymouthicket Number FACTUAL BACKGROUND 5 Plaintiff assumed a homeowner’s insurance policy originally issued by United Property & Casualty Insurance Company, Policy # UMH 4032903 08 20 (“Policy”). The Policy was issued to William and Julie Delaney for property located at 97 Flint Locke Drive, Duxbury, MA 02332. A copy of the Policy is attached hereto as Exhibit “A.” 6 Upon information and belief, Sean Delaney is the minor child of William and Julie Delaney and resides at the insured property. a On or about February 16, 2022, counsel for ROPES submitted a “Notice of Claim” alleging that Sean Delaney “punched Brayden [Ropes] in the face” on January 11, 2022. 8 A police report was included with the Notice of Claim. The police report include a statement by Brayden Ropes following the incident, wherein he alleged that Sean Delaney threw one individual to the ground then, when Mr. Ropes attempted to pull him off, Mr. Delaney “punched him in the face (specifically the nose area).” The police report also includes a statement from Mr. Delaney admitting that he punched Mr. Ropes. 9. Upon information and belief, Sean Delaney was charged with Assault and Battery as a result of the incident. 10. On or around March 2, 2022, Defendant ROPES filed suit against Sean Delaney in Plymouth County Superior Court, further identified as Civil Action No. 2283CV00159 (“Underlying Complaint”). 11. In the Underlying Complaint, ROPES alleges causes of action for Negligence and Negligence Infliction of Emotional Distress. ROPES alleges that he was “negligently struck in the face by the Defendant.” -2-eet stomber 12. The allegations in the Underlying Complaint directly contradict the “Notice of Claim” submitted by counsel for ROPES, as well as the police report and other information obtained during Plaintiff’s investigation of the claim. 13. DELANEY made a claim with Plaintiff under the Policy, requesting a defense and indemnification for the allegations of the Underlying Complaint. 14. A dispute now exists between Plaintiff and Defendants as to whether a duty to defend or indemnify exists under the Policy for the claims asserted Underlying Complaint. COUNT I- DECLARATORY JUDGMENT 15. Plaintiff re-alleges and re-adopts paragraphs one through fourteen above as if fully set forth herein. 16. Plaintiff asserts that the claims asserted against Sean Delaney in the Underlying Complaint do not fall within the scope of coverage under the Policy and/or are excluded from coverage. 17. The Policy provides, in pertinent part, as follows: HOMEOWNERS 3 - SPECIAL FORM DEFINITIONS AK 8. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. "Bodily injury"; or b. "Property damage". ee SECTION II - EXCLUSIONS kK E. Coverage E — Personal Liability And Coverage F — Medical Payments To Others -3-Coverages E and F do not apply to the following: 1. Expected Or Intended Injury "Bodily injury" or "property damage" which is expected or intended by an "insured", even if the resulting "bodily injury" or "property damage": a. Is of a different kind, quality or degree than initially expected or intended; or b. Is sustained by a different person, entity or property than initially expected or intended. ae 7. Sexual Molestation, Corporal Punishment Or Physical Or Mental Abuse "Bodily injury" or "property damage" arising out of...physical or mental abuse; 18. The conduct complained of in the Underlying Complaint does not fall within thescope of coverage provided by the Policy. Specifically, the underlying incident does notconstitute an “Occurrence” as the conduct was intentional. 19. Additionally, the underlying incident is subject to the exclusions for “Expected orIntended Injury” and “Physical Abuse,” outlined above. 20. Thus, coverage is not triggered and Plaintiff has no duty to defend or indemnifyDELANEY. WHEREFORE, Plaintiff respectfully requests that this Honorable Court make adeclaration of its rights and obligations under the policies of insurance referenced above relatingto the allegations of the Underlying Complaint. Specifically, Plaintiff seeks a determination withrespect to: (i) Whether or not the above-cited Policy provisions, definitions and other grounds, as well as other provisions of the Policy, preclude coverage under the Policy for any alleged damages or liability arising from the incident(s) alleged by the Underlying Complaint; 24s\penor Court - Plymouthicket Number (ii) Whether or not Plaintiff is obligated under the Policy to defend or indemnify DELANEY, for any alleged damages or liability arising from the incident(s) alleged by Underlying Complaint. (iii)And for such other relief as this Court deems proper. PLAINTIFF REQUESTS A JURY CLAIM AS TO ALL ISSUES SO TRIABLE. Respectfully Submitted, Homeowners Choice Prop. & Cas. Ins. Co., By Its Attorneys, /s/ Andrew A, Labbe Groelle & Salmon, P.A. Andrew A. Labbe, Esq. BBO# 692655 39 Milford Drive Pembroke, MA 02359 (P) 617.322.8201 (F) 813.849.7201 alabbe@gspalaw.com DATED: June 10, 2022 William Delaney 97 Flint Locke Drive Duxbury, MA 02332 Julie Delaney 97 Flint Locke Drive Duxbury, MA 02332 Sean Delaney 97 Flint Locke Drive Duxbury, MA 02332 Brayden Ropes, a Minor, by His Mother and Next Friend Jennifer Ropes 219 Chestnut Street Duxbury, MA 02332 -5- 

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