Opinion
No. CV-03-0829154-S
April 17, 2007
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This is an action brought by the plaintiff Stephen Clinch, (also hereafter called "Clinch"), against the defendant insurance carrier, Generali-U.S. Branch a/k/a Assicurazioni Generali (also hereafter called "Generali") for said defendant's refusal to defend its insureds in the plaintiff's action against Waterfront Restaurants, Inc., Southern Ties, Inc., Harbor Park Associates Limited Partnership, all doing business as America's Cup Restaurant in Middletown, Connecticut (hereinafter also "America's Cup"), as well as Uokuni Connecticut, Inc., Ventry, Inc., John O'Callahan, Richard Vasile and Frank Gionfriddo. On March 26, 2003, the court entered judgment in said underlying case in favor of the plaintiff against the defendant's insureds, America's Cup and Frank Gionfriddo, an employee of the defendant's insureds, in the amount of $320,609.85 plus costs in the amount of $674.70. The plaintiff claims that because that judgment was not satisfied within thirty days after its date, the plaintiff became subrogated to all the rights of the defendant's insureds and that the plaintiff now has a right of action against the defendant pursuant to Conn. Gen. Stat. § 38a-321 to recover the judgment entered against the defendant's insureds including costs and the statutory interest due thereon pursuant to Conn. Gen. Stat. § 37-3b. By motion dated February 6, 2006, the plaintiff moved for summary judgment against Generali. By motion dated April 24, 2006, the defendant filed a cross motion for summary judgment. The parties filed memoranda of law with their motions for summary judgment, opposing memoranda and reply memoranda. This court held a hearing on said motions on January 29, 2007. The Court's decision is contained in a memorandum of decision dated January 31, 2007 in which this Court found that as to the allegations in Count One of the underlying complaint against Harbor Park et al. the issue was whether the punching of the plaintiff in the bar at Harbor Park was intentional because the assailants who did the punching were clearly under the influence of alcohol. Being under the influence of alcohol could mean that there was no intent to assault the plaintiff. The Court held that whether or not the inebriation of the assailants was a factor in not being an intentional assault was an issue of fact, and it denied summary judgment to the defendant. However, the assault which took place in the parking lot, which was far more serious as to the injuries to the plaintiff was clearly an assault because in the second count the allegations state in effect that an employee of Harbor Park struck the plaintiff causing the serious injuries. There was no allegation that the Harbor Park Employee who did the punching and striking was under the influence of alcohol. Intent was clearly there, and the Court concluded that the actions in the parking lot constituted assault which is excluded from the defendant's coverage, and entered summary judgment for the defendant on the second count. Subsequently both parties filed motions to reopen, reargue and/or reconsideration and a hearing was held thereon on March 21, 2007 in which the Court asked the parties to provide briefs. The plaintiff claimed that the circumstances of the first count meant that the Court should enter judgment for the plaintiff on his summary judgment motion. The defendant has responded by claiming that intent was not a necessary element of assault and battery so whether the assailants were drunk or not is irrelevant. This court ordered briefs primarily on the issue of whether an assault has to be intentional. The parties then filed briefs, the last of which arrived on April 9, 2007.
The facts in the underlying complaint against Harbor Park which was dated July 9, 1999 and was successfully prosecuted against Harbor Park et al. are essentially what is stated hereafter.
FACTS
On or about September 20, 1997 at approximately 12:15 a.m. and for some period of time prior thereto, the plaintiff was a customer and business invitee of the America's Cup. At said time and date America's Cup and its employees carried a general liability insurance policy and a liquor liability insurance policy issued by the defendant. At said time, date and place the plaintiff was confronted inside America's Cup by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside America's Cup by one of these males. After this altercation developed inside America's Cup Restaurant, America's Cup, through its agents, servants or employees, ejected the plaintiff, his companions and the three males from its restaurant into the parking area of same, and the verbal altercation resumed in the parking lot area. The plaintiff was struck in the back of his head causing him to fall and strike his head on the ground suffering further injuries. The lawsuit against America's Cup et al. as aforesaid was commenced by complaint dated, July 9, 1999 in two counts. The first count sounded in negligence claiming that the negligence and carelessness of America's Cup et al., inter-alia, was in failing to maintain the restaurant in a reasonably safe condition, failing to properly protect the plaintiff, failure to properly train its employees, failure to properly supervise and control its restaurant and the parking lot area. The second count sounded in claims of willful, wanton and reckless conduct by America's Cup, their agents, servants or employees. The defendant claims that its refusal to defend its insureds is based upon an exclusion provision in the general liability policy for assault and battery which exclusion reads as follows:
In consideration of the reduced premium charge, it is agreed and understood that this insurance does not apply to bodily injury, or property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.
Furthermore, there is no coverage for assault and/or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.
The liquor liability policy includes similar language in its exclusion.
In consideration of the reduced premium charge, it is agreed and understood that this insurance does not apply to bodily injury, or property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.
Furthermore, there is no coverage for assault and/or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.
STANDARD OF REVIEW
"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472, A.2d 257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marked omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
ISSUES AND FINDINGS
The Court will note that it has already granted summary judgment to the defendant on the second count.
1. As to the first count, the central dispute between the parties is whether or not the allegations in the complaint describe an assault. Plaintiff cites DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594-95 (1985). "A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another." (Emphasis added.) "We adopt the view of the majority of jurisdictions which have interpreted the word, `assault,' in similar contexts. That view is that an `assault' by an insured must be more than a simple assault or more than a negligent infliction of harm; it must be the kind of serious conduct which would justify a victim in using deadly force in self-defense against the insured." Defendant challenges this holding claiming that assault does not necessarily have to be intentional, and that DeWitt v. John Hancock Mutual Life Ins. Co., supra, is not applicable because it involved a life insurance policy.
"[I]n this state an actionable assault and battery may be committed willfully or voluntarily, and therefore intentionally; when done under circumstances showing a reckless disregard of consequences; or one committed negligently." (Emphasis added.) Markey v. Santangelo, 195 Conn. 76, 78 (1985). Further, in Kelly v. Figueiredo, 223 Conn. 31 (1992), the Court found that the exclusion clause in the subject policy applied to all assaults and batteries. There are several other Superior Court cases cited by the defendant to the effect that assault and battery may be caused by negligence, it applies to both active and passive negligence and a finding that allegations of assault and battery based on negligent conduct fall within the scope of assault and battery exclusions. The Court is persuaded by these cases aforementioned and finds that assault does not have to be intentional. Therefore, the finding in the memorandum of decision of January 31, 2007 that assault has to be intentional to be excluded from coverage is in error. Even if the plaintiff were punched in the bar negligently, it would still constitute assault. Therefore, the summary judgment granted to the plaintiff is now vacated.
These cases are Supreme Court cases and Kelly is later than DeWitt v. John Hancock, 5 Conn.App. 590 (1985), supra.
2. Should the Court grant summary judgment to the defendant?
The short answer is " yes."
The Court is convinced that it must read the complaint as a whole. In Deming v. Nationwide, Ins. Co., 279 Conn. 745 (2006), the Court stated: "In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the balance of rational comprehension." (Emphasis added.) Further, in analyzing whether a single paragraph of a pleading is subject to a motion to strike, Connecticut Courts have held that it is generally improper to attack specific paragraphs of a pleading on a motion to strike. Most trial courts in Connecticut follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense. This Court, therefore, concludes that it should read the first count in the case at bar in its entirety and apply it in its entirety for the purposes of the motion for summary judgment.
In doing so paragraph 5 of the first count states that the plaintiff was struck and hit inside the defendants' restaurant by one of the assailants previously mentioned. The Court no longer considers that the assailants were under the influence of alcohol where intent is not required to prove assault, and paragraph 5 clearly, then, includes allegations of assault and battery and falls within the exclusion of the defendants' insurance policy.
As for paragraph 6 regarding what happened in the parking lot after the plaintiff and the others were ejected from the restaurant it is sufficiently general in that it does not allege that the plaintiff was struck. It merely says that because of the failure to properly protect the plaintiff from the dangers to which he was exposed, he was caused to suffer severe and painful injuries in the parking lot. One would ordinarily believe that paragraph 6 does not allege assault and, therefore, the plaintiff still has a good cause of action.
However, in reading the complaint as a whole, the Court must look at paragraph 8.
That paragraph states, in pertinent part, "As a result of the negligence and carelessness of the defendants, their agents, servants or employees, as aforesaid, the plaintiff was caused to be punched and struck inside the defendants' restaurant and in the parking lot area of the restaurant . . ." (Emphasis added.) Here, the plaintiff clearly alleges an assault of the plaintiff in the parking lot in that he was caused to be punched and struck there.
Accordingly, this Court finds that because of the allegations in paragraph 5 and paragraph 8, the plaintiff was caused to suffer as a result of assault and battery in the bar of the restaurant and in the parking lot. The Court further finds that the exclusion as cited above in the insurance policy clearly excludes assault or battery and assault and/or battery claims against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual. There is no question that the exclusion applies in this case based upon the allegations of the complaint and, therefore, summary judgment should be entered on behalf of the defendants.
This Court did grant the motions to reargue and for reconsideration. The Court has reconsidered both motions for summary judgment, and has vacated the summary judgment previously awarded to the plaintiff and now grants summary judgment on the defendants' motion for summary judgment.
Even if the defendant had defended the underlying case with a reservation of rights, it is clear that the defendants in that case, particularly the one who struck the plaintiff on the head in the parking lot, committed assault. The Court did not take into consideration the second count because it had already granted summary judgment on that count in favor of the defendant. However, it appears to this Court from the facts that are alleged that a trier of fact in the underlying case would conclude that the plaintiff suffered from assault and/or battery. If that is so, then the exclusion would apply, and the defendant would not be liable for any judgment in the underlying case.