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Worcester Ins. Co. v. Fells Acres Day School, Inc.

Supreme Judicial Court of Massachusetts, Middlesex

March 8, 1990 ; August 22, 1990

No Number in Original


 [*395]  [**962]   Pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), a judge of  [***5]  the Superior Court has reported to us, without decision, eight questions (see Appendix) concerning whether certain insurance policies provide coverage for damage claims arising from sexual abuse allegedly perpetrated at the Fells Acres Day School (school). Two of the eleven consolidated cases before us are declaratory judgment actions brought by insurance companies 2 seeking a judgment that the injuries sustained by the tort plaintiffs in the nine underlying tort actions are not covered by various policies of insurance. The other nine cases are the underlying tort actions, brought by parents individually and as next friends of their children, against one or more of the tort defendants, seeking damages incurred as a result of sexual abuse that the children are alleged to have suffered while they were attending the school. We allowed the insurance companies' joint application for direct appellate review.

 [***6]  The parties' stipulation of agreed facts is substantially as follows. Fells Acres Day School, Inc. (Fells Acres), is a duly organized, for-profit Massachusetts corporation that operated the school, a group day care facility. The school enrolled as many as 48 children, ranging in age from fifteen months to five years. At all relevant times, the directors, officers, and shareholders of Fells Acres were Violet Amirault (Violet),  [*396]  Gerald Amirault (Gerald), and Cheryl Amirault LeFave (Cheryl). Fells Acres employed up to seven staff members in addition to Violet, Gerald, and Cheryl. It maintained books and accounts as a corporation, paid Federal and State taxes and F.I.C.A. contributions as a corporation, maintained a corporate checking account from which expenses were paid, and filed annual reports of condition with the Office of the State Secretary.

Violet was the holder of a license to operate the school, issued by the Office for Children of the Commonwealth of Massachusetts. Operation of the school was subject to regulations promulgated by the Office for Children, 102 Code Mass. Regs. § 7.00 (1987). At all relevant times, Violet was a salaried employee of Fells Acres,  [***7]  holding the title of "director" of the school. As such, pursuant to Office for Children regulations, Violet was responsible for staff supervision and training. Gerald, Violet's son, was a salaried employee of Fells Acres, employed as the school's "program coordinator." For at least one year before the revocation of Violet's license to operate the school and the school's closing in 1984, Gerald also held the title "assistant director." Gerald was responsible for setting up and monitoring programs at the school and for assisting Violet in the administration of the school's programs. Cheryl, Violet's daughter, also was a salaried employee of Fells Acres, employed as an "assistant director" and a teacher. Cheryl was responsible for assisting Violet in the administration of the school's programs. Cheryl's husband, Albert LeFave (Albert), was not employed by Fells Acres.

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408 Mass. 393 *; 558 N.E.2d 958 **; 1990 Mass. LEXIS 386 ***

WORCESTER INSURANCE COMPANY v. FELLS ACRES DAY SCHOOL, INC., & others 1 (and ten consolidated cases)

Subsequent History:  [***1]  As Amended September 4, 1990. As Corrected October 4, 1990.

Prior History: CIVIL ACTIONS commenced in the Superior Court Department on October 19, 1984; February 1, 1985; May 2, 1985; May 6, 1985; May 13, 1985; November 27, 1985; February 21, 1986; August 1, 1986; August 31, 1987; September 17, 1987; and September 25, 1987.

Questions of law were reported by Hiller B. Zobel, J., on a stipulation and statement of agreed facts.

The Supreme Judicial Court granted a request for direct review.

Disposition: So ordered.


coverage, assault, battery, sexual, occurrence, consortium, homeowner's, vicarious, rape, carrier, impute, molestation, indecent, warranty, intentionally, reckless

Insurance Law, Commercial General Liability Insurance, Coverage, Accidental Injuries, Criminal Law & Procedure, Sexual Assault, Abuse of Children, Elements, Exclusions, Intentional Acts, Sex Crimes, General Overview, Rape, Torts, Employers, Scope of Employment, Vicarious Liability, Agency Relationships, Intentional Torts, Activities & Conditions, Standards of Care, Special Care, Common Carriers, Transportation Law, Carrier Duties & Liabilities, Transportation Torts, Motor Vehicles, Particular Actors, Circumstances, & Liabilities, Motor Carriers, Business & Corporate Law, Shareholder Duties & Liabilities, Piercing the Corporate Veil, Arson, Simple Arson, Arson & Intentional Loss, Insured Corporations, Criminal Offenses, Directors & Officers Liability Insurance, Wrongful Acts, Intentional Torts, Family Law, Family Relationships & Torts, Real Property Law, Torts, Elements, Duty, Bodily Injuries, Types of Losses, Loss of Consortium, Policy Interpretation, Ambiguous Terms, Construction Against Insurers, Claim, Contract & Practice Issues, Exclusions