Henry Andrade, Jr., was a police officer in New Bedford, Massachusetts, in September 1991. He and another officer were sent to the scene of a fight and found James Gamache standing on the grass and bleeding from an injury to his head. Another man was lying on the ground. Andrade and the officer with him said that Gamache yelled and swore at them as they approached, and attempted to keep them at bay by swinging his arms and kicking his feet. As Andrade prepared to handcuff him, Gamache grabbed him, causing Andrade to lose his balance. As he fell, he twisted his left knee, causing injuries.

In January 1993, Andrade filed a civil action against Gamache for the injuries to his knee, alleging that he was injured by the "negligent, reckless and/or wanton conduct" of Gamache. The trial court in that action entered judgment for Andrade for $75,000. An attempt was then made to recover from Preferred on its HO policy issued to Gamache's parents, and it filed this action for declaratory judgment, contending that its policy excluded "bodily injury . . . which results directly or indirectly from...an intentional act of an insured."

The trial court entered summary judgment in favor of Preferred, stating that despite Gamache's apparent drunkenness, no fair-minded jury could have concluded that Gamache's resisting arrest and grabbing Andrade, causing him to fall, was not intentional conduct.

In an appeal by Andrade and Gamache, the court noted that Gamache's mental capacity to form the requisite intent was a material issue. In this case, the complaint in the underlying action brought by Andrade alleged the injuries were caused by Gamache's "negligent, reckless and/or wanton conduct." No intentional injury was alleged, and negligent conduct cannot be intentional conduct. Preferred had a duty to defend Gamache. (The higher court noted that a stipulation which was made a part of the record in the original action was disregarded since it apparently was included to ensure coverage under the policy.)

Since there was a genuine issue of material facts in this case, the summary judgment entered in favor of Preferred was vacated and the action remanded for further proceedings to determine whether Preferred had a duty to indemnify Gamache.

Preferred Mutual Insurance Company v. James G. Gamache and another--No. 95-P-685-Appeals Court of Massachusetts, Bristol--February 5, 1997--675 North Eastern Reporter 2d 438.