!
`
`COMMONWEALTH OF MASSACHUSETTS
`
`SUPERIOR COURT DEPARTMENT
`OF THE TRIAL COURT
`
`CIVIL ACTION NO. a» _ | 5 (7
`
`
`
`re
`————
`wrapsFICantATS
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`“ostaoeOURSac
`
`MAY 9 4 2023
`Fi;/LEGem |
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`5
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`MIDDLESEX,SS.
`
`FOREMOST INSURANCE COMPANY
`GRAND RAPIDS, MICHIGAN,
`Plaintiff,
`
`JOSEPH ZAGARELLA, DAVID STANIZZI,
`NATALIAE STANIZZI, THOMAS OGDEN,
`TRACEY DAVIS OGDEN, TJ OGDEN
`COMPANY,INC. and PAUL COSTELLO,
`PERSONAL REPRESENTATIVE OF THE
`ESTATE OF ETHAN COSTELLO,
`Defendants
`
`COMPLAINT FOR DECLARATORY RELIEF —
`
`Foremost Insurance Company Grand Rapids, Michigan (hereinafter “Foremost
`Insurance”), pursuant to Mass.R.Civ.P., Rule 57 and G.L. c. 231A,et. seq. hereby alleges as
`
`follows:
`
`I. PARTIES
`
`1,
`
`2.
`
`3.
`
`4,
`
`5.
`
`The Plaintiff, Foremost Insurance, is an insurance company authorized to do business in
`Massachusetts with a principal office at 5600 Beech Tree Lane, Caledonia, Michigan.
`
`The Defendant, Joseph Zagarella, is an adult individual currently incarcerated at the
`Middlesex County House of Corrections, 269 Treble Cove Road,Billerica,
`Massachusetts.
`
`The Defendant, David Stanizzi, is an adult individual residing at 35 Rolling Meadow
`Road, Tewksbury, Middlesex County, Massachusetts.
`The Defendant, Nataliae Stanizzi, is an adult individual residing at 35 Rolling Meadow
`Road, Tewksbury, Middlesex County, Massachusetts.
`
`The Defendant, Thomas Ogden,is an adult individual residing at 346 Boylston Street,
`Lowell, Middlesex County, Massachusetts. Thomas Ogdenis an interested party.
`
`1
`
`

`

`The Defendant, Tracey Davis Ogden,is an adult individual residing at 346 Boylston
`Street, Lowell, Middlesex County, Massachusetts. Tracey Davis Ogdenis an interested
`party.
`
`The Defendant, TJ Ogden Company,Inc. (“TJ Ogden”), is a Massachusetts Corporation
`with a principal office at 17 Catherwood Road, Tewksbury, Middlesex County,
`—
`Massachusetts. TJ Ogden ownsand/or controls the premises at 358 Boylston Street,
`Lowell, Massachusetts and is an interested party.
`
`The Defendant, Paul Costello, Personal Representative of the Estate of Ethan Costello’s
`Estate, with an address of Five Sullivan Parkway, Tewksbury, Middlesex County,
`Massachusetts.
`
`Il.
`
`GENERAL ALLEGATIONS
`
`10.
`
`11.
`
`12.
`
`13.
`
`14.
`
`15.
`
`16.
`
`Foremostrealleges and repleads paragraphs 1 through 8 above,as if set forth fully herein.
`As of October 28, 2016, David and Nataliae Stanizzi, husband and wife, owned the
`premises located at 35 Rolling Meadow Road, Tewksbury, Middlesex County,
`Massachusetts.
`
`As of October 28, 2016, Joseph Zagarella, the nephew of Davidand Nataliae Stanizzi,
`resided at 35 Rolling Meadow Road, Tewksbury, Middlesex County, Massachusetts with
`theStanizzi’s.
`.
`
`Asof October 28, 2016, 35 Rolling Meadow Road, Tewksbury, Middlesex County,
`Massachusetts was insured by a Foremost Classic CL HomeownersInsurance Policy,
`(hereinafter “the Homeowners Policy”) issued by Foremost Insurance with David and
`Nataliae Stanizzi listed as the named insureds.
`
`Foremost Insurance is authorized to sell Homeowners insurance in Massachusetts.
`
`The HomeownersPolicy issued to David and Nataliae Stanizzi by Foremost Insurance
`provided, among other coverages, Comprehensive Personal Liability Coverage of
`$500,000.00 per accident and Medical Payments Coverage of $5,000.00 each person.
`
`On October 28, 2016, Joseph Zagarella attended a birthday party at the home of Thomas
`and Tracey Davis Ogden, 346 Boylston Street, Lowell, Middlesex County,
`Massachusetts, arranged by the Ogdensfor their daughter, Samantha Ogden (16 years old
`at the time).
`
`On October 28, 2016, Mr. Zagarella, while at the Ogdens’ homeat 346 Boylston
`Street, Lowell, Middlesex County, Massachusetts, assaulted and battered Ethan
`Costello, causing serious injuries, eventually resulting in Ethan’s death, two days
`later, on October 30, 2016.
`
`

`

`17.
`
`18.
`
`19.
`
`20.
`
`Mr. Zagarella was arrested and subsequently indicted on two charges:(1)
`Manslaughter (M.G.L. c. 265, §13); and (2) Assault & Battery with a Dangerous
`Weapon causing Serious Bodily Injury (M.G.L. c. 265, §15.A(c)(i)).
`The criminal proceeding against Mr. Zagarella wasinitially commenced in the
`Lowell District Court but after he was indicted, it was transferred to the
`Middlesex Superior Court (Docket No. 1781CR00481) in 2017.
`
`The criminal case against Mr. Zagarella was delayed many years due to a number
`of issues, including Covid-19.
`
`The criminal matter wastried, beginning on June 14, 2022, before a jury and after
`a seven-daytrial, Mr. Zagarella was found not guilty of Manslaughter, but guilty
`of a lesser included offense, Assault & Battery Causing Serious Bodily Injury
`(M.G.L. c. 265, §13A(b)()).
`
`21.
`
`M.G.L. c. 265, §13A(b)(i), Assault & Battery Causing Serious Bodily Injury,
`providesin pertinentpart:
`
`(b) Whoever commits an assault or an assault and battery:
`
`(i) upon another and by such assault and battery causes serious
`bodily injury;
`
`To be convicted of assault and battery in Massachusetts, theprosecution must prove
`beyond a reasonable doubtthat the defendant intentionally committed, “a harmful or
`offensive touching of the victim, without justification or excuse.” Commonwealthv.
`Oberle, 476 Mass. 539 (2017).
`
`Moreover,“[c]onviction of assault and battery requires finding of intentional
`striking of victim.”” Commonwealth v. Chasson, 383 Mass. 183.(1981).
`
`Mr. Zagarella was sentenced to two years and six months in the Middlesex
`County House of Corrections and he did not appeal the conviction.
`
`On April 9, 2018, Paul Costello (as the personal representative of Ethan’s Estate),
`filed a wrongful death action (seeking personal injury, conscious pain and
`suffering and death damagesas well as punitive damages) against Mr. Zagarella,
`the Ogdens and TJ Ogdenin the Middlesex Superior Court (Docket No.
`1881CV01002).
`With respect to Mr. Zagarella, the Wrongful Death Complaint alleges that he was
`negligent and/or grossly negligent in causing Ethan’s death by causing him “to
`strike his head.”
`
`The docket for the Wrongful Death Complaintindicates that Mr. Zagarella was
`served a Summons, Complaint, Civil Action Cover Sheet, Tracking Order, First
`3
`
`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`27.
`
`

`

`Set of Interrogatories and First Request for Production of Documents athis last
`and usual place of abode, 35 Rolling Meadow Road, Tewksbury, Massachusetts,
`on June 11, 2018.
`
`Mr. Zagarella did not answer the Complaint or otherwise respond.
`Accordingly, on September 12, 2018, the Middlesex Superior Court defaulted Mr.
`Zagarella and orderedthe Plaintiff to either file a Motion for an Assessment of
`Default Judgment or a Request for a Default Judgment by October 12, 2018.
`
`On September 28, 2018, Counsel for the Plaintiff in the Wrongful Death lawsuit,
`filed correspondence requesting a stay in any Assessment of Damagesuntil a later
`date or at the timeoftrial.
`
`The docket for the Wrongful Death action does not reflect a formal order
`regarding the Plaintiff’s request for a stay of the Assessment of Damages hearing
`and/or an entry of Default Judgment against Mr. Zagarella.
`
`Foremost Insurance did not become aware of the Wrongful Death Complaint until
`April 13, 2022.
`
`Uponreceiving notice of the Wrongful Death Complaint, Foremost Insuranceretained
`counsel, Jeffrey A. Novins, Esq. of Howd & Ludorf, LLC, to defend Mr. Zagarella and
`Counsel is continuing his efforts to vacate the default, which wasinitially denied without
`prejudice on December7, 2022.
`
`Underthe Definition Section of the Homeowners Policy issued by Foremost Insurance to
`David and Nataliae Stanizzi, “you, your and yours meansthe person namedonthe
`Declarations Page and that person’s family member.”
`
`Underthe Definition Section of the HomeownersPolicy, “Family member” means a
`person whoresides in your household andis related to you by blood, marriage or
`adoption [and includes] a wardora foster child.”
`
`Mr. Zagarella resided in David and Nataliae Stanizzi’s household as of October 28, 2016
`and wasrelated by blood.
`
`The Homeowners Policy issued by Foremost Insurance to David and Nataliae Stanizzi, in
`effect as of October 28, 2016, provides Comprehensive Personal Liability Coverage for
`bodily injury caused by an “accident.”
`
`The Homeowners Policy issued by Foremost Insurance to David and Nataliae Stanizzi, in
`effect as of October 28, 2016, provides Medical Payments to Others Coverage for a
`person off the insured premisesif the Bodily Injury arising out of an “accident”is
`“caused by youractivities.”
`
`28.
`
`29.
`
`30.
`
`31.
`
`32.
`
`33.
`
`34.
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`35.
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`36.
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`37.
`
`38.
`
`

`

`39.
`
`40.
`
`41.
`
`Theword “accident” is not defined in the HomeownersPolicy but SectionII of the
`Policy, entitled, “Exclusions,” does allow Foremost Insurance to disclaim Bodily Injury
`and Medical Payment to Others claims,“[r]esulting from any act or omissionthatis
`intended by any of you to cause any harm or that any of you could reasonably expect to
`cause harm ... whether or not any of you:
`
`a.
`
`Intended or expected the result of his or her act or omission so
`long as the resulting injury or damage was natural consequence
`of the intended act or omission.”
`
`The Homeowners Policy further excludes bodily injury “[r]esulting from an act
`committed by any of you in the course ofor in furtherance of any crimeor offense
`of a violent nature.”
`
`The Homeowners Policy provides that Foremost Insurance be “promptly ... [sent] any
`demand, notice; summonsor other legal papers you receive.”
`
`42.
`
`The HomeownersPolicy further provides:
`
`You will be required to cooperate with us in our effort to
`investigate the accidentorloss, settle any claims against you and
`defend you. If you fail to cooperate, we havethe right to deny you
`coveragein this policy.
`
`43.
`
`44.
`
`44,
`
`45.
`
`COUNT I
`. REQUEST FOR DECLARATORY RELIEF v. ALL DEFENDANTS
`
`Foremost Insurancerealleges, repleads and incorporates by reference paragraphs 1
`through 42 above,asif set forth fully herein.
`
`Foremost Insurance brings this Count for declaratory relief pursuant to Mass. R. Civ.P.,
`Rule 57 and G.L. c. 231A et. seq.
`
`There exists an actual case in controversy between Foremost Insurance and PaulCostello,
`Personal Representative of the Estate of Ethan Costello, as to whether the Estate is
`entitled to recover Personal Liability Coverage benefits from a HomeownersPolicy
`issued to David and Nataliae Stanizzi, arising out of the assault and battery of Ethan
`Costello on October 28, 2016.
`
`There exists an actual case in controversy between Foremost Insurance and Paul Costello,
`Personal Representative of the Estate of Ethan Costello, as to whether the Estate is
`entitled to recover Medical Payments to Others Coverage benefits from a Homeowners
`Policy issued to David and Nataliae Stanizzi, arising out of the assault and battery of
`Ethan Costello on October 28, 2016.
`
`

`

`46.
`
`There exists an actual case in controversy between Foremost Insurance and Joseph
`Zagarella, David Stanizzi and Nataliae Stanizzi, as to whether Foremost Insurance has a
`duty to defendJoseph Zagarella in the Wrongful Death litigation, arising out of the
`assault and battery of Ethan Costello on October 28, 2016.
`
`WHEREFORE,Foremost Insurance Company Grand Rapids, Michigan, respectfully
`requests that this Honorable Court issue a judicial declaration that:
`
`a) Foremost Insuranceis not required to provide Personal Liability Coverage benefits to
`Paul Costello, Personal Representative of the Estate of Ethan Costello, pursuantto the
`HomeownersPolicy issued to David and Nataliae Stanizzi based on the following facts:
`
`i.
`
`il.
`
`Mr. Zagarella was a member of David and Nataliae Stanizzi’s household
`as of October 28, 2016 and therefore was covered for bodily injury to
`others caused by him in an “accident” under the HomeownersPolicy,
`subject to policy exclusions;
`
`The HomeownersPolicy issued by Foremost Insurance to David and
`Nataliae Stanizzi entitles Foremost to disclaim Personal Liability claims,
`resulting from any act or omission that was intended by Mr. Zagarella to
`cause any harm orthat he could reasonably expect to cause harm, whether
`he intended or expectedthe result of his act, as the resulting injury or
`damage was a natural consequenceofthe intendedact.
`
`ui.
`
`Mr. Zagarella was convicted,after a jury trial on the merits, of Assault and
`Battery causing Serious Bodily Injury;
`
`The jury in the criminal action determined, beyond a reasonable doubt,
`that Mr. Zagarella intentionally committed a harmful or offensive touching
`of Ethan Costello, withoutjustification or excuse; and
`
`Mr. Zagarella failed to cooperate with Foremost Insurancein its
`investigation of the October 28, 2016, incident, by failing to notify
`Foremost of the subject incident and that a Wrongful Death lawsuit had
`been served on him in 2018.
`
`b) Foremost Insurance is not required to provide Medical Payments to Others Coverage
`benefits to Paul Costello, Personal Representative of the Estate of Ethan Costello,
`pursuant to the Homeowners Policy issued to David and Nataliae Stanizzi based on the
`following facts:
`
`i.
`
`Mr. Zagarella’s activities off the insured premises on October 28, 2016
`were covered by the HomeownersPolicy issued by ForemostInsurance to
`David and Nataliae Stanizzi, subject to policy exclusions;
`
`

`

`The HomeownersPolicy issued by Foremost Insurance to David and
`Nataliae Stanizzi entitles Foremost to disclaim Medical Paymentsto
`Others Coverage claims, resulting from any act or omission that was
`intended by Mr. Zagarella to cause any harm orthat he could reasonably
`expect to cause harm, whether he intended or expected the result of his
`act, as the resulting injury or damage wasa natural consequenceofthe
`intendedact.
`
`ili.
`
`‘iv.
`
`Mr. Zagarella was convicted, after a jury trial on the merits, of Assault and
`Battery causing Serious Bodily Injury;
`
`Thejury in the criminal action determined, beyond a reasonable doubt,
`that Mr. Zagarella intentionally committed a harmful or offensive touching
`of Ethan Costello, without justification or excuse; and
`
`Mr. Zagarella failed to cooperate with Foremost Insuranceinits
`investigation of the October 28, 2016, incident, by failing to timely notify
`Foremost of the subject incident and that a Wrongful Death lawsuit had
`been served on him in 2018.
`
`c) Foremost Insuranceis not required to defend Mr. Zagarella in the Wrongful Death
`lawsuit (Docket No. 1881CV01002) based on the following facts:
`
`i.
`
`Mr. Zagarella failed to cooperate with Foremost Insurancein its
`investigation of the October 28, 2016, incident, by failing to timely notify
`Foremost Insurance of the subject incident and that a Wrongful Death
`lawsuit had been served on him in 2018.
`
`JURY DEMAND
`
`The Plaintiff demandsa trial by jury asto all issues triable to a jury.
`
`

`

`Respectfully submitted,
`For the Defendant,
`Foremost Insurance Company Grand Rapids,
`Michigan,
`
`Byits attorneys,
`
`BBO No. 551558
`Glenda H. Ganem,Esq.
`gganem@mhg-pe.com
`BBO No. 564374
`McGovern & Ganem,P.C.
`21 Merchants Row, 4th Floor
`Boston, MA 02109
`(617) 723-1444
`
`Date: May 18, 2023
`
`

`

`COMMONWEALTH OF MASSACHUSETTS
`
`MIDDLESEX,SS.
`.
`
`SUPERIOR COURT DEPARTMENT
`OF THE TRIAL COURT
`CIVIL ACTION NO.:
`
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`
`FOREMOST INSURANCE COMPANY
`GRAND RAPIDS, MICHIGAN,
`Plaintiff,
`
`Vv.
`
`JOSEPH ZAGARELLA, DAVID STANIZZI,
`NATALIAE STANIZZI, THOMAS OGDEN,
`TRACEY DAVIS OGDEN, TJ OGDEN
`COMPANY,INC. and PAUL COSTELLO,
`PERSONAL REPRESENTATIVE OF THE
`ESTATE OF ETHAN COSTELLO,
`Defendants.
`
`SHR fe fs fe es fe os os 2s 2s fe oe oe Ae fe os ois os fs fs ois 2 oe ois oie 2s ok fe oie fe ofc oh ie ok
`
`NOTICE OF APPEARANCE
`
`Please note the appearanceof Patrick M. Conran, Esq., as counsel for the Plaintiff,
`
`Foremost Insurance Company Grand Rapids, Michigan, in connection with the above-captioned
`
`matter.
`
`Respectfully submitted,
`Forthe Plaintiff,
`Foremost Insurance Company Grand Rapids,
`Michigan,
`Byits attorney,
`
`/s/ Patrick Conran
`Patrick M. Conran, Esq.
`pceonran@mhg-pce.com
`BBO No.: 551558
`McGovern & Ganem,P.C.
`21 Merchants Row, 4th Floor
`Boston, MA 02109
`(617) 723-1444
`
`Date: May 18, 2023
`
`

`

`The Superior Court
`COUNSEL CERTIFICATION FORM|2°CKETNUMBER Trial Court of Massachusetts ae
`
`
`Pursuant to SJC RULE 1:18 CASE NAME:
`
`,
`Foremost Insurance Company “* Joseph Zagarella et.al.
`
`Woburn, MA 01801
`
`Michael A. Sullivan
`Middlesex
`COURT NAME & ADDRESS
`Middlesex Superior Court
`200 Trade Center, 2nd Floor
`
`[=]cterk of Courts
`[=] County
`
`| am attorney of record for Foremost Insurance Company Grand Rapids, Michigan
`
`plaintiff
`
`[~] defendant in the above-entitled matter.
`
`| hereby certify that in accordance with Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule
`
`1:18), | have complied with the requirements of the rule requiring that | provide myclients with information about court-
`
`connected dispute resolution services and discuss with them the advantages and disadvantagesof the various methodsof
`
`dispute resolution.
`
`Dated: May 17, 2023
`
`
`
`Signature:
`Print name:Patrick M. Conran, Esa.
`Address: McGovern & Ganem, P.C.
`21 Merchants Row, 4th FL
`
`Boston, MA 02109
`
`BBO#:
`
`551558
`
`
`FILED
`INTHEOFCFOF THE
`,
`CLE!COL£ OES1 OF MIDDLESE
`
`#
`FOR T
`MAY 24 2023
`FHC"
`
`
`
`
`rev: 01/10/2023
`
`