Opinion
No. CV 05-4013240-S
June 12, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is an action for a declaratory judgment brought by the plaintiff to have the Court decide that the plaintiff does not have to defend the named defendants in this case in a law suit brought in the United States District Court against them for actions/inaction committed by the defendants in this action. This Court has already ruled on the plaintiff's motion for summary judgment by Memorandum of Decision dated February 21, 2007 in which this Court held that the plaintiff is not entitled to judgment as a matter of law. That decision is attached hereto as Schedule A and incorporated herein for reference.
Since this Court has already found that the plaintiff is not entitled to judgment as a matter of law, it logically concludes that the defendants in this case are entitled to judgment as a matter of law. In the memoranda submitted by the parties in regard to the motions for summary judgment filed by James F. Daigle, Jr. dated April 13, 2007 and the motion for summary judgment filed by the City of Norwich, Louis Fusaro, the Police Department of the City of Norwich, Mark Lounsbury et al., (hereafter also "City defendants") Mr. Daigle has made a significant argument and cited the case of Breen v. Phelps, 187 Conn. 86, 99 (1982), which states: "Where a matter has previously been ruled upon interlocutorily, the Court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or over riding circumstance." As I am sure it is no surprise to the parties, this Court does treat its decision of February 21, 2007 finding that the plaintiff is not entitled to judgment as a matter of law, is the law of the case.
Editor's Note: Not reproduced herein.
However, there is an exception to that ruling. The plaintiff has raised in its memorandum of May 16, 2007 an opposition to James F. Daigle, Jr.'s motion for summary judgment, for the first time, the exclusion in Paragraph (h) on page three of the liability policy. This exclusion reads as follows:
h. Fraud or Violation of Law
Liability arising out of:
(1) Fraud committed by or at the direction of the insured with affirmative dishonesty or actual intent to deceive or defraud.
On May 29, 2007 the Court issued a memorandum requesting additional briefs on this issue; namely, whether or not this exclusion applied to Sargent Daigle and whether it applied to the City defendants.
The plaintiff in its June 8, 2007 memorandum states that "Daigle's deceit and/or fraud deprives him of coverage by means of exclusion (h). The Court would normally agree with that except that Sargent Daigle's June 8, 2007 memorandum vigorously denies that he either violated the law or utilized fraud in his conduct. The answer to this issue would appear to lie in the testimony of Sargent Daigle and the plaintiffs in the federal case. If the jury believes that he did use deceit, then the exclusion would apply. However, this appears to be a contested issue of fact. Therefore, Sargent Daigle's motion for summary judgment is denied.
As to the other defendants, additional language under Paragraph(h) states: "This exclusion applies only to the insured who committed or had knowledge of fraudulent or dishonest act or the violation of law." The plaintiff in its memorandum of June 8, 2007 states in pertinent part as follows: "2. The fraud exclusion does not bar defense of the other defendants." Additionally, in its May 16, 2007 memorandum in opposition to James F. Daigle Jr.'s motion for summary judgment, the plaintiff stated, in pertinent part on pages 3 and 4 as follows: "Paragraph 10 of the Affidavit of Chief Louis Fusaro, submitted by the Norwich defendants with their original objection and cited by the Court in this respect, refutes that any alleged child pornography ring, which Wilson and Earl contend induced one of their two photo sessions, was an operation of the Norwich Police Department. It is uncontroverted that the Norwich Police Department had no knowledge thereof. . . furthermore, even as to the `liquor sting' it is respectfully suggested that the Court's prior ruling went too far and Daigle seeks too much by his summary judgment motion. It is a matter of common sense that taking of nude or semi-nude photographs of 18-20 year old female volunteer operatives was without the police department's knowledge and was not a ` departmentally approved activity.' (Emphasis added.) In view of these admissions by the plaintiff in its June 18, 2007 and May 16, 2007 memoranda, the fraud exclusion does not bar defense of the City defendants. Based upon that, summary judgment should be entered for the City defendants on their motion for summary judgment."
1. To summarize the decision of February 21, 2007 this Court found that the defendants, James F. Daigle, Jr., Louis F. Fusario, the Chief of Police of the City of Norwich, Officer Mark Lounsbury and the City of Norwich are all insured under SECTION I — LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE AND/OR SECTION II — WHO IS AN INSURED.
2. The plaintiffs in the federal case have alleged personal and advertising injury by a wrongful act. James F. Daigle, Jr. (hereinafter also "Daigle") is accused in that case of committing wrongful acts which are the offenses described in Section V — Definitions.
3. Under exclusions, the first exclusion refers to Daigle and the other defendants mentioned for injuries they suffered. This is a liability policy, and the policy makes clear that these defendants cannot be compensated for their own injuries since they are not covered under the liability portion of the policy. Further, this Court has found that the plaintiffs in the federal case do not qualify as volunteer law enforcement persons.
4. The other exclusion is found under SECTION I — LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE PARAGRAPH TWO WHICH STATES THAT: `THIS INSURANCE DOES NOT APPLY TO SEXUAL ABUSE, BODILY INJURY, PROPERTY DAMAGE OR PERSONAL AND ADVERTISING INJURY ARISING OUT OF (1) THE ACTUAL OR THREATENED SEXUAL ABUSE OR MOLESTATION BY ANY ONE OF ANY PERSON WHILE IN THE CARE, CUSTODY AND CONTROL OF ANY INSURED, (Emphasis added) or. . ." The Court found in its decision of February 21, 2007 that the words care, custody and control of any insured were ambiguous and, therefore, in favor of the insured which means that that exclusion does not apply.
It should be noted that this Court in a case involving the same language "care, custody and control," found those words to be unambiguous in the situation involved. That was a case in which a four-year-old girl was being taught Tae Kwan Do by an individual who allegedly sexually assaulted her. She was clearly in the care, custody and control of that individual whereas in the case at bar, the plaintiffs in the federal case were all women in their late teens or twenties who were used by Officer Daigle for a sting operation with a liquor store and for some reason decided to mislead them by giving them a false reason for having them come to his home and taking nude pictures of them individually. This Court concluded that they were always free to leave and were, therefore, not in the care, custody and control of Officer Daigle.
That case is John Doe, et al. v. Patrick Lenarz and East-West Karate CT., LLC, J.D. of Hartford CV05-4012970-S (March 21, 2007, Rittenband, JTR).
4. Finally, the Court is persuaded that the plaintiff must reimburse or pay all damages found against these defendants in the federal case including punitive damages and attorneys fees.
For the reasons stated above, the motion for summary judgment of James F. Daigle, Jr. dated April 13, 2007 is denied because there is a contested issue of material fact. The motion for summary judgment by the City defendants dated April 13, 2007 is granted because the fraud exclusion, by plaintiff's admission, does not apply to the City defendants. The plaintiff is not entitled to judgment as a matter of law in regard to the City defendants, and the City defendants are so entitled. The plaintiff is ordered to defend and/or indemnify the City defendants.
See February 21, 2007 Memorandum of Decision on plaintiff's Motion for Summary Judgment attached hereto and made a part hereof.