KENNETH M. ROMINES, J.
Factual and Procedural Background
On 8 March 2007, Appellant was convicted by a jury of Abuse of a Child — Serious Emotional Injury, a B felony. § 568.060. The case stems from abuse inflicted on A.M., Appellant's son, by Appellant and her boyfriend. Appellant and boyfriend beat A.M. with sticks, switches with thorns, electrical cords, shoes, hands, and a plastic stick used to open blinds. Additionally Appellant abused A.M. by forcing him to kneel on wooden board covered in bottle caps, and locking A.M. in a room with no lights and no food for hours at a time. Appellant was sentenced to twelve years in prison per the jury's recommendation. This Court affirmed Appellant's direct appeal of her conviction and sentence. State v. Morales, 254 S.W.3d 903 (Mo.App. E.D. 2008).
All statutory references are to RSMo 2000, unless otherwise noted.
On 3 September 2008, Appellant filed a Motion to Vacate, Set Aside or Correct Judgment or Sentence pursuant to Rule 29.15 of the Rules of Criminal Procedure. Appellant raised three points of error in her motion. On 24 April 2009, the motion court denied Appellant's motion without an evidentiary hearing. We Affirm.
Discussion
This Court reviews the findings and conclusions of the motion court under Rule 29.15 for clear error. Supreme Court Rule 29.15. The motion court's findings and conclusions are clearly erroneous only if review of the record as a whole leaves this Court with the firm and definite impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997). On review, the motion court's findings of fact and conclusions of law are presumptively correct. Wooldridge v. State, 239 S.W.3d 151, 154 (Mo.App. E.D. 2007).
Appellant is entitled to an evidentiary hearing on a Rule 29.15 motion only if: 1) the motion alleges facts, not conclusions, warranting relief; 2) the alleged facts are not refuted by the; record; and 3) the matter complained of resulted in prejudice against the movant. Supreme Court Rule 29.15; Dickerson v. State, 269 S.W.3d 889, 892 (Mo. banc 2008). With respect to a claim for ineffective assistance of counsel, Appellant must allege facts that: 1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and 2) that movant was prejudiced by that failure. Dickerson v. State, 269 S.W.3d at 892 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Movant is prejudiced if, but for counsel's poor performance, there is a reasonable probability the outcome of the proceeding would have been different. Jackson v. State, 205 S.W.3d 282, 285 (Mo.App. E.D. 2006). It is presumed that counsel acted professionally and any challenged action was part of counsel's reasonable trial strategy. Id.
I
In her first point on appeal, Appellant claims that trial counsel was ineffective for failing to object to the certification of State's witness Dr. Levin. Dr. Levin is a psychologist who examined A.M. at the request of the: State. Dr. Levin diagnosed A.M. with post-traumatic stress syndrome resulting from child abuse. His diagnosis was based on I.Q. and personality tests he had administered to A.M.
Appellant's point fails the first prong of the Strickland test. Counsel is not ineffective for failing to make a non-meritorious objection. Storey v. State, 175 S.W.3d 116, 132 (Mo. banc 2005). The record shows that there is an overwhelming likelihood Dr. Levin would have been allowed as an expert even if Appellant's trial counsel had objected. To qualify as an expert, a witness needs to have some knowledge or skill from education or experience that will aid the trier of fact. State v. Blakey, 203 S.W.3d 806, 816 (Mo.App. S.D. 2006). The extent of the expert's training or experience goes to the weight the testimony should be given, not the admissibility. Id. Dr. Levin's background demonstrates his competency as an expert witness in this field. He has been a clinical psychologist for 16 years, has conducted over 1700 psychological evaluations where there have been questions of abuse or neglect and has testified over 100 times as an expert witness. Additionally, this Court, on direct appeal, found that Dr. Levin was qualified as an expert witness. State v. Morales, 254 S.W.3d 903 (Mo.App. E.D. 2008).
Appellant's argument that Dr. Levin would not have been certified as an expert had counsel objected rests on the fact that Levin had most often been certified as an expert in family court. Appellant argues that because the standard of proof for conviction is lower in family court then in criminal court, the standard for certifying experts is lower, and as such, the court would not have considered Levin pervious certifications in family court in deciding whether he was qualified to testify in this case. Appellant confuses the standard for conviction with the standard to qualify as an expert witness. The standard of proof for conviction is irrelevant when certifying an expert. The sole question is whether the witness satisfies the test articulated above, i.e. knowledge/skill that will aid the trier of fact. Dr. Levin was more than qualified under that test. Point denied.
II
On her second point, Appellant claims that trial counsel was ineffective for failing to object to hearsay and speculative statements made by Dr. Levin. As to hearsay, Appellant doesn't preserve this issue for appeal because she fails to identify any statements in the legal file or transcript that violate the rule against hearsay. To preserve an issue for review, Appellant must provide specific page references in the legal file or transcript. McMullin v. Borgers, 806 S.W.2d 724, 730 (Mo.App. E.D. 1991). Failure to do so is fatal. Id.
As to the speculative statements, Appellant argues that trial counsel was ineffective for failing to object to statements made by Dr. Levin about his "gut feeling" and his "best guess." Appellant fails to identify any meritorious objection counsel might have made. Simply using the word "guess" doesn't not make the testimony of an expert useless. Moore v. Quality Dairy Co., 425 S.W.2d 261, 268 (Mo.App. 1968). Such testimony is still admissible and the jury may rely on it. Id. Counsel would not have prevailed on an objection to these statements as they were matters of opinion within the witness' area of expertise.
Appellant also claims that counsel was ineffective for failing to object to Dr. Levin's conclusion that A.M. was abused because Levin did not state that his opinion was to a reasonable degree of medical or psychological certainty. § 556.061(27) requires that a finding of "serious emotional injury" be established by testimony of a qualified expert to a "reasonable degree of medical of psychological certainty." In determining whether the expert's opinion is rendered with the required degree of certainty, the court should look at the testimony as a whole. The trial court found that Dr. Levin's testimony was logical and necessary. Since Appellant would not have prevailed on an objection to Dr. Levin's conclusion, she was not prejudiced by counsel's failure to make such an objection.
Appellant fails to allege facts that her counsel acted unreasonably or that those actions changed the outcome of her trial, she was not entitled to an evidentiary hearing. Point denied.
III
Appellant's final argument is that appellate counsel was ineffective for failing to argue that the trial court erred in allowing Brenda Mueller to testify regarding A.M.'s serious emotional injury. Brenda Mueller was A.M.'s foster mother. At trial Appellant objected to her testimony. The prosecutor argued that A.M.'s behavior in the foster home needed to be included to show the continuing effects of the abuse A.M. suffered. The trial court overruled Appellant's objection and allowed Mueller to testify.
Appellate counsel need not raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). A trial court has broad discretion to admit or exclude evidence at trial. State v. Dennis, 315 S.W.3cl 767, 768 (Mo.App. E.D. 2010). If reasonable persons can disagree about the propriety of the trial court's ruling, the trial court did not abuse its discretion. Id. Appellant argues that Mueller should not have been allowed to testify regarding A.M.'s emotional sufferings because § 556.061(27) requires that emotional suffering be proven by expert testimony. Serious emotional injury "s hall be established by testimony of qualified experts upon the reasonable expectation of probable harm to a reasonable degree of medical or psychological certainty." § 556.061(27). While this statute requires emotional injury to be established by experts it does not preclude the testimony of a non-expert on the topic. Mueller's daily interaction with A.M. as his foster parent was not "highly prejudicial" as appellant claims.
Even if Mueller's testimony was improperly admitted, in order to warrant reversal the admitted evidence must be so prejudicial that it is outcome determinative. State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000). Evidence is only outcome determinative when it so influenced the jury that, when considered with and balanced against all the properly admitted evidence, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence. State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001). There was ample expert testimony for the jury to convict Appellant. Any claim Appellate counsel might have raised on direct appeal regarding Mueller's testimony would not have required reversal. Point denied.
Conclusion
The motion court did not clearly err in denying Appellant's Rule 29.15 request for post-conviction relief. We affirm.
ROY L. RICHTER, C.J., and STEPHEN K. WILLCOX, Sp., J., concur.
< class="paragraph"> Evanston issued a renewal EPLI policy (No. EP-261249) to Jasmine for the period April 28, 2005, to April 28, 2006.
See McDonough Aff. ¶ 2. On January 3, 2006, Jasmine cancelled the policy and purchased Extended Reporting Period coverage for claims made and reported during the thirty-six months following the effective date of the cancellation. Consistent with the terms of the policy, the Extended Reporting Period endorsement required that any claims made during the period arise out of a Wrongful Employment Practice alleged to have been committed between the Retroactive Date of April 28, 1999
and the extended date of cancellation.
The policy also contained an "Intentional Acts Exclusion" barring coverage of any claim made against the Insured
based on conduct of the Insured or at the Insured's direction that is committed with wanton, willful, reckless or intentional disregard of any law or laws that is or are the foundation for the Claim, or with criminal or malicious purpose or intent; but this exclusion shall not apply to the strictly vicarious liability of any Insured for the wanton, willful, reckless or intentional disregard of another of any law or laws that is or are the foundation for the Claim.
Barnett Aff. — Ex. 1 at IV(1).
The policy defined the "Insured" in relevant part as follows:
Each of the following is an insured under this insurance to the extent set forth below:
1. The Named insured is herein defined as the individual, partnership or corporation named in the Declarations;
2. Any partner, officer, director, stockholder, or employee of the named insured solely while acting within the scope of his duties as such;. . . .
In May of 2006, Burgess complained to Lerner that she had been sexually harassed by Manganella. Lerner hired outside counsel to investigate Burgess's complaint. Manganella was placed on unpaid administrative leave. On June 22, 2006, Lerner terminated Manganella's employment citing a "Major Employment Breach" of the SPA — specifically that Manganella had sexually harassed four female Jasmine employees, including Burgess, and had downloaded sexually-graphic images on company computers.
A Major Employment Breach is "(ii) the willful refusal of the Shareholder to comply with any significant, lawful and proper policy, directive or decision . . . if not remedied within thirty days after receipt of written notice from the Company. . . ." Barnett Aff. — Ex. 7 (SPA) § 6.16(E).
Lerner claimed that Manganella's conduct had also violated Lerner's "Code of Business Conduct." Lerner demanded that Manganella forfeit $7 million of escrowed funds that were to be paid to him upon his satisfactory completion of performance under the SPA. Manganella was asked to sign a form waiving his right to the funds by June 29, 2006. Manganella refused to sign the waiver.
Lerner's Code of Conduct in relevant part provides:
Executive officers, Directors, and managers have the additional responsibility to lead by example, ensure that other Associates understand and comply with this Code, foster an environment that promotes compliance, and ensure that other Associates understand how to report concerns and understand that there will be no retaliation for doing so.
* * *
We are committed to maintaining a workplace entirely free from illegal discrimination or harassment. We will not tolerate harassment related to any individual's race, color, religion, gender, national origin, citizenship, age, disability, sexual orientation or marital status.
* * *
The term "harassment" may include unwelcome slurs and other offensive remarks, jokes and other verbal, graphic or unwelcome physical conduct. Harassment may also include unwelcome sexual advances, requests for sexual favors or unwelcome or offensive touching and other verbal, graphic or physical conduct of a sexual nature (such as obscene or lewd jokes, comments or displays or any inappropriate body contact).
Barnett Aff. — Ex. 12 at 9.
Under the terms of the SPA, $7 million of the $22.5 million cash component of the purchase price for Jasmine was placed in escrow to be returned to Lerner in the event of a Major Employment Breach. The escrowed funds were to be disbursed in July of 2006.
On June 29, 2006, Lerner invoked the arbitration clause of the SPA. The same day, Lerner turned to this court for an order enjoining the distribution of the escrowed funds. Manganella responded by filing suit against Lerner, also on June 29, 2006, in the Massachusetts Superior Court. Manganella's state court suit alleged that Lerner had breached the SPA by terminating his employment. On August 9, 2006, Manganella's counsel notified Evanston of the Lerner litigation, and asked for a defense and coverage in the arbitration proceeding.
The court granted the requested preliminary injunction on July 12, 2006.
In October of 2007, the Superior Court found on cross-motions for partial summary judgment that Lerner had justifiable grounds to terminate Manganella. However, prior to any ruling on the remainder of Manganella's claims, the parties settled the Superior Court case and filed a Stipulation of Dismissal.
On December 4, 2006, Evanston filed an action in this court against Manganella and Lerner (No. 06-CA-12175-PBS), seeking a declaratory judgment that Manganella was not entitled to coverage under the policy for the costs of the arbitration proceeding and various related actions, including the Superior Court litigation. The parties reported to Judge Saris at a May 2007 scheduling conference that the case had been settled.
After discovery, including the taking of the depositions of Burgess and the three other women who complained of sexual harassment by Manganella, the arbitration panel convened to hear evidence in November and December of 2006. Thirteen witnesses testified. On April 20, 2007, the arbitrators issued a twenty-page ruling, finding that while Manganella had willfully engaged in sexual harassment in breach of the SPA and Lerner's Code of Conduct, Lerner had failed to provide Manganella with the called-for notice and opportunity to "remedy" the violation. The arbitrators awarded Manganella the escrowed funds, together with $305,291.25 in interest and $2 million in attorneys' fees and costs.
Manganella's Application for Fees and Costs requested $2,221,712 in fees and expenses. Manganella asserts that, as a result of Evanston's denial of a complete defense, he (or his attorneys) amassed $221,712 in unreimbursed fees in connection with the arbitration. Evanston responds that the arbitrators expressly found that "an award of $2,000,000 for all of Respondent's attorneys fees and costs is fair and reasonable."See Barnett Aff. — Ex. 15 at 2.
The United States District Court for the Southern District of New York confirmed the arbitration award on August 8, 2007.
On March 19, 2007, Burgess filed a charge of discrimination against Manganella, Lerner, and Jasmine with the Massachusetts Commission Against Discrimination (MCAD). The charge alleged that Burgess had worked for Jasmine and Manganella from 1997 to 2006, and that "[t]hroughout her employment with JasmineSola, Manganella subjected Ms. Burgess to nearly constant physical and verbal sexual harassment." See Barnett Aff. — Ex. 20 (MCAD Charge ¶ 1, ¶ 3). Burgess also alleged that "Manganella intimidated [her] into engaging in sexual acts with him on the premises of JasmineSola and in other business locations on five occasions. . . ." Id. at ¶ 1. Manganella denied all of Burgess's allegations and moved to dismiss the charge on, among other bases, statute of limitations grounds. The MCAD denied the motion.
While inconsistent with her statements in the EPLI application, the affidavit filed in the Bawa case, the statements given to Lerner's investigator in May of 2006, and Burgess's MCAD charges parallel those she made in her deposition and in her testimony to the arbitration panel. Compare MCAD Charge ¶¶ 14-17 with Barnett Aff. — Ex. 10 at 876-879.
The MCAD issued a finding of probable cause on June 30, 2008.
On March 29, 2007, Manganella requested a defense and coverage under the EPLI policy in the MCAD proceeding. In a letter dated April 11, 2007, Evanston stated that it had compared the allegations of Burgess's MCAD charge with the provisions of the policy and with statements made in the policy applications. It denied Manganella coverage on grounds that the "Wrongful Employment Practice" had not occurred in its entirety between April 28, 2009 and the Extended Reporting Period. The letter also "call[ed] attention" to the Intentional Acts Exclusion of the policy.
In May of 2008, Manganella asked Evanston to reconsider the denial of coverage and provided Evanston with the testimony given by Burgess in the course of the arbitration proceeding. Evanston declined to reconsider. On January 16, 2009, Manganella renewed his objection to the denial of coverage, pointing out that in Burgess's 1998 Bawa affidavit, she had stated under oath that she knew of no other acts of sexual harassment and that this declaration was inconsistent with the allegation that she had been harassed "throughout" her employment with Jasmine, as stated in her MCAD charge. On January 27, 2009, Evanston again declined coverage. Manganella filed this lawsuit on July 19, 2009.
A confidentiality order issued in conjunction with the arbitration proceeding prevented Manganella from discussing the case or earlier providing Evanston with the Burgess deposition transcript or Lerner's investigative report. See Pl. Mem. at 16; Pl. Reply Mem. at 6; Rosenfeld Aff. ¶ 4.
DISCUSSION
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A `genuine' issue is one that could be resolved in favor of either party, and a `material fact' is one that has the potential of affecting the outcome of the case."Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986).
"[T]he initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions: if the allegations of the complaint are `reasonably susceptible' of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense." Great Am. Ins. Co. v. Riso, Inc., 479 F.3d 158, 160 (1st Cir. 2007), quoting Sterilite Corp. v. Cont'l Cas. Co., 17 Mass. App. Ct. 316, 318 (1983). See also Cont'l Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146 (1984). The scope of an insurer's duty to defend is "based not only on the facts alleged in the complaint but also on the facts that are known or readily knowable by the insurer." Desrosiers v. Royal Ins. Co. of Am., 393 Mass. 37, 40 (1984). Nonetheless, when the allegations in the underlying complaint "lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate" or to defend the claimant. Terrio v. McDonough, 16 Mass. App. Ct. 163, 168 (1983); see also Metro. Prop. Gas, Co. v. Fitchburg Mut. Ins. Co., 58 Mass. App. Ct. 818, 820 (2003) (no duty to defend a claim specifically excluded from coverage).
An insured bears the initial burden of proving coverage under a policy. Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) (applying Massachusetts law). If the insured demonstrates the existence of coverage, the burden shifts to the insurer to prove that an exclusion applies. Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 231 (1997) ("[W]here the exception is in another separate and distinct clause of the . . . contract . . . then the burden is upon the party relying on such exception").
Manganella claims that the allegations of Burgess's MCAD charge, read liberally in his favor as the insured, are "reasonably susceptible" of an interpretation that they state a claim within the coverage of the policy. This is because a finder of fact could determine that Manganella's conduct did not occur or did not constitute sexual harassment, or they could find that while his conduct was illegal, it occurred in its entirety after the Retroactive Date. Manganella adds that Evanston also had information extrinsic to the MCAD charge that militated in favor of a duty to defend, namely Burgess's 1998 Affidavit in the Bawa case. Finally, Manganella contends that Evanston breached its express contractual obligation to investigate the basis of coverage. "Simply put, Evanston ignored all of the rules governing an insurer's conduct when evaluating its defense obligations . . . to avoid its duty to fund Manganella's defense of complicated sexual harassment claims." Pl. Mem. at 3.
Evanston relies on the statement in Burgess's charge that the harassment occurred throughout her employment with Jasmine (which began in 1997), that is, that it commenced prior to the April 28, 1999 Retroactive Date. Evanston also points to the Intentional Acts Exclusion of the policy and argues that two prior adjudications (the arbitration proceedings and Superior Court case) have established both that Manganella's harassment of Burgess was willful and that it was committed with knowledge that it was unlawful.
The court agrees with Manganella that a material dispute of fact exists as to whether the alleged Wrongful Employment Practice occurred entirely within the insured period, that is, from April 28, 1999, to April 28, 2006. While Burgess stated in her MCAD charge that she began working for Jasmine in September of 1997, and that "Manganella subjected [her] to nearly constant physical and verbal sexual harassment," she specified no dates — only that Manganella harassed her "throughout her employment." Moreover, Evanston had in its file the initial EPLI application in which Burgess stated that, with the exception of the Bawa complaint, as of November 10, 1998, she personally was unaware of any other actual or alleged Wrongful Employment Practices at Jasmine. Moreover, Burgess had filed a sworn statement in the Bawa case in November of 1998, attesting that she was privy to "office gossip" and "at no time ha[d she] ever witnessed or heard from anyone associated with the company including Ms. Bawa that Mr. Manganella committed any acts of sexual harassment directed towards Ms. Bawa or others." Barnett Aff. — Ex. 4 (Burgess Aff. ¶ 3) (emphasis added). At a minimum, Evanston had a duty to investigate the inconsistency between its own records and Burgess's MCAD charge before choosing the version of facts that justified a denial of coverage, while ignoring another under which coverage attached. Given this material dispute of fact, Evanston's denial of a defense and coverage on grounds that Manganella's conduct could not have occurred entirely within the covered period was improper.
Evanston claims that it did not have access to this affidavit until recently as there was a confidentiality order issued as to certain exhibits filed with the arbitration panel. Evanston makes the conclusory and unpersuasive argument that the EPLI Policy application dated November of 1998 "does not cast any doubt on the fact that, in 2007, Ms. Burgess was in fact alleging harassment `throughout' her employment at Jasmine starting in 1997." Evanston Opp. at 9.
In the alternative, Evanston relies on the International Acts Exclusion of the policy. "Interpretation of the language of [an] exclusion presents a question of law. . . . In this interpretation, we are guided by three fundamental principles: (1) an insurance contract, like other contracts, is to be construed according to the fair and reasonable meaning of its words. . . . (2) exclusionary clauses must be strictly construed against the insurer so as not to defeat any intended coverage or diminish the protection purchased by the insured, . . . and (3) doubts created by any ambiguous words or provisions are to be resolved against the insurer." Camp Dresser McKee, Inc. v. Home Ins. Co., 30 Mass. App. Ct. 318, 323-324 (1991). On the issue of the application of a policy exclusion, the burden of showing the absence of coverage rests with the insurer. Great Sw. Fire Ins. Co. v. Hercules Building Wrecking Co., 35 Mass. App. Ct. 298, 302 (1993); Noseworthy v. Allstate Life Ins. Co., 40 Mass. App. Ct. 924, 927 (1996).
Manganella denies Burgess's allegations, contending somewhat unconvincingly that her charge does not allege that he "knew that the alleged conduct was unlawful at the time he committed it." Pl. Mem. at 18.
Evanston argues that in both the Superior Court case and the arbitration proceeding, the harassment charges were litigated and established as constituting intentional and deliberate conduct. In order for an adjudication to be binding on a party in a subsequent action, four elements must be met: (1) a valid and final judgment on the merits in the prior adjudication; (2) that the party against whom estoppel is asserted was a party or in privity with a party to the prior litigation; (3) that the issue in the prior adjudication is identical to the issue in the current litigation; and (4) the issue in the prior adjudication was essential to the earlier judgment. See Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2003). "An issue may be `actually' decided even if it is not explicitly decided, for it may have constituted, logically or practically, a necessary component of the decision reached in the prior litigation." Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30-31 (1st Cir. 1994).
The parties agree that the arbitration was a final judgment. It is also clear that privity is not in dispute. While the arbitrators took pains to preserve the anonymity of the female complainants, Manganella concedes that one of the complainants referenced in the arbitrators' decision was Burgess. Manganella, however, attempts to generate a dispute of fact over the issue of identicality. On this point, the arbitrators' decision is instructive. In relevant part, the arbitrators found as follows.
Manganella argues that because the Superior Court action was settled mid-course by a stipulation of dismissal with prejudice, that action cannot be deemed a "final" adjudication for preclusion purposes. But see United States v. Cunan, 156 F.3d 110, 114 (1st Cir. 1998) ("[A] voluntary dismissal with prejudice is ordinarily deemed a final judgment that satisfies the res judicata criterion."). See also Fed.R.Civ.P. 41(a)(1). Because of the preclusive effect of the arbitration decision, the court need not address the parties' arguments over the significance of the Superior Court ruling.
"A party invoking issue preclusion need not show that it was privy to the first proceeding. . . . It need only show that `the party against whom issue will be applied had a fair opportunity to litigate the issue fully.'" Monarch Life Ins. Co. v. Ropes Gray, 65 F.3d 973 (1st Cir. 1995), quoting Kyricopoulos v. Town of Orleans, 967 F.2d 14, 16 (1st Cir. 1992).
We find, despite his protestations to the contrary, that [Manganella] was well acquainted with the Company's policy on sexual harassment and other acts of inappropriate conduct. We find that he did not comply with the policy on sexual harassment and that his refusal was willful. The requirement of willful refusal was satisfied based on the evidence presented to the Panel in this proceeding.
* * *
As to Manganella's compliance with the [sexual harassment] policy, his denials of sexual advances were not established but rather what was established by the record is that he sexually propositioned several women employees and inappropriately touched and propositioned one of these employees.
* * *
What makes this proceeding difficult is the reprehensible nature of [Manganella's] conduct and his lack of forthrightness. He knew better and he owed the women who testified conduct associated with leaders. The women employees who testified in this proceeding were forthright,
courageous and wounded by [Manganella's] treatment of them. He failed terribly as a leader.
Barnett Aff. — Ex. 12 at 5, 12. Manganella argues that the decision established Manganella's intent — "that the arbitration did not decide whether Manganella intentionally harassed Burgess in violation of law. . . ." Pl. Reply at 8-9.
Although arguably not a final adjudication, the characterization by the Superior Court Justice of the arbitrators' findings in her summary judgment decision are worthy of note.
The findings are binding here if they were essential to the panel's decision. Manganella argues that they were not, because that decision turned on the lack of notice and opportunity to remedy. The argument ignores the crux of the dispute that was presented to the arbitrators. The company never disputed that it had failed to provide notice and an opportunity to remedy; its position was that it was excused from that requirement on the ground of futility, because Manganella's misconduct was so egregious that no remedy could be possible. To evaluate that claim, the panel had to determine whether the conduct occurred, and if so, how severe it was. The panel did exactly that, in that sequence, finding that the conduct occurred as alleged, and that it was severe, but that it did not so clearly preclude all possibility of remedy as to render any effort futile. The findings were essential to the outcome, and are therefore binding on the parties in this action. It follows that the arbitrator's decision establishes, beyond any genuine dispute, that the company terminated Manganella for cause as defined in [the employment agreement].
Id. — Ex. 18 at 20.
This argument is impossible to square with the arbitrators' finding that Manganella's harassing conduct was in willful violation of the terms of the SPA and Lerner's Code of Conduct. Willful has a well-established meaning in the law. An act is willful if it constitutes "a voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam). Cf. United States v. Andrade, 135 F.3d 104, 108-109 (1st Cir. 1998) (willfulness requires knowledge by a defendant that his acts are unlawful; it does not require specific knowledge of the provisions of the law that make them so). See also Commonwealth v. Welansky, 316 Mass. 383, 397-398 (1944) (willful means intentional by design or purpose in contrast to that which is thoughtless or accidental). Cf. Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 4 n. 2 (2001) (willfulness requires proof that the actor intended both the conduct and its harmful consequences).
Manganella presumably intends to draw a distinction between conduct that is intentional (which he concedes that his conduct was) and conduct that is undertaken in intentional "disregard of any law or laws that is or are the foundation for the Claim," as provided in the Intentional Acts Exclusion of the policy (which he denies his conduct was). On this issue, the arbitrators' finding of willfulness is conclusive. To pretend otherwise would be to torture the meaning of the term "willful" beyond recognition. As Judge Hand explained, "The word `willful,' even in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law." Am. Surety Co. v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925). Even assuming that the law would require more, that is, proof that Manganella knew that his harassment of Burgess was wrong (in the sense that it was condoned by Burgess), that proof is subsumed in the arbitrators' finding that he "inappropriately touched and propositioned" Burgess and that his denials of doing so were unworthy of belief. The Intentional Acts Exclusion of the policy therefore applies, and Evanston owes Manganella no further defense or coverage.
Manganella's final argument is that under federal "common law" preclusion is applied less generously than under Massachusetts law. This, of course, raises the issue whether under Erie R. Co. V. Tompkins, 304 U.S. 64 (1938), a federal court in a diversity action would treat preclusion as a rule of substantive or procedural law. Again, this is an issue that the court need not delve into as there are no relevant differences between federal and Massachusetts state law on the fundamental issue of identicality. See Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 390 (1994). See also Heacock v. Heacock, 402 Mass. 21, 23 (1988) ("The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action.").
ORDER
For the foregoing reasons, Manganella's motion for partial summary judgment is DENIED. Evanston's motion for summary judgment is ALLOWED. The Clerk will enter judgment accordingly and close the case.
SO ORDERED.