Nonaka v. D'Urso

Mass., Middlesex County superior court, No, 90-5227-B, May 31, 1991

Nonaka, 30, went to D'Urso's house to complain about his barking dogs. While Nonaka was standing on the steps talking with D'Urso's wife and son, D'Urso went into the house and returned with a shotgun. As Nonaka fled D'Urso's property, D'Urso shot him in the back.

Nonaka underwent surgery to remove the shotgun pellets and a portion of his small intestine. About 150 pellets remain lodged in his body, presenting a danger of lead poisoning, intestinal obstruction, and pancreatis. He suffers post-traumatic stress disorder that requires therapy. He incurred about $32,700 in medical expenses. A computer science graduate student who had earned about $40,000 annually, Nonaka cannot return to work.

Nonaka sued D'Urso, alleging assault, battery, and negligence in handling a loaded shotgun.

D'Urso tendered defense of the action to his homeowner insurance carrier, which initially agreed to defend without reserving its rights. However, during the pendency of the underlying action, the insurer filed a declaratory judgment action against D'Urso and Nonaka, alleging that it was not liable for coverage because D'Urso had acted intentionally.

The jury in the underlying action awarded $900,000. The trial court, hearing the declaratory judgment action, ten found that the insurer had waived its right to disclaim coverage by undertaking defense of the action without reserving its rights. Merrimack Mut. Fire Ins. Co. v. Nonaka, Mass., Middlesex County Superior Court, No. 91-1588-B, June 10, 1991.

Plaintiff's Cousel: Roger A. Cox
Expert Witness for Plaintiff: Harold J. Bursztajn, MD
D'Urso's Counsel: Robert Bonsignore