General Star Indemnity Co. v. Millington

Full title: GENERAL STAR INDEMNITY CO. v. DARREN MILLINGTON ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: May 31, 2006

2006 Ct. Sup. 10275 (Conn. Super. Ct. 2006)

41 CLR 570

Opinion

No. CV01-0183908-S

May 31, 2006

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (NO. 115)

ALFRED J. JENNINGS, JUDGE.

The plaintiff General Star Indemnity Company ("General Star") is the issuer of a certain "Police Professional Liability Coverage" policy of insurance (the "Policy") to the Town of Trumbull. This is an action for a declaratory judgment originally brought seeking a ruling whether or not the policy obligates General Star to defend the defendants Darren Millington ("Millington"), a Trumbull police officer, Theodore Ambrosini ("Ambrosini"), the Trumbull Police Chief, and the Town of Trumbull in certain underlying actions¹ brought against them by persons, or their personal representatives, injured or killed by collision with a pickup truck which had been chased by a Trumbull Police cruiser operated by the defendant Officer Darren Millington. The basis for General Star's declaratory judgment action is that its insurance policy contained an exclusion for injuries arising out of the use of an automobile.

1 In the underlying complaints it is alleged that as a result of a high speed police pursuit the suspect lost control of her vehicle and crashed into a parked vehicle, killing the driver and injuring the passenger. It is further alleged that the impact of the crash caused the parked vehicle to collide with a moving vehicle, resulting in injuries to that vehicle's passenger.

Since this action was originally commenced, the three underlying actions² have been settled for a total slightly in excess of $2.9 million. As a result of this settlement, the issue of whether or not General Star has a duty to defend the Town and its employee defendants is moot.³ The sole remaining claim of the declaratory judgment action is whether or not General Star must indemnify the Town⁴ for a portion of the settlement. General Star has moved for summary judgment claiming that there is no issue of material fact and that it is entitled to judgment as a matter of law because the automobile exclusion⁵ of the Policy and, therefore, General Star was under no obligation to defend or indemnify the Town in the related actions. In support of its motion General Star has submitted the affidavit of its vice president of claims, a copy of the Policy, a copy if its reservation of rights letters with respect to the underlying actions, copies of the writs, summonses and complaints in each of the underlying actions, and a memorandum and supplemental memorandum of law. The Town has submitted its objection to the motion for summary judgment and a memorandum of law.

2 Mabel Cheatham, et al. v. Darren Millington, et al., Docket No. CV99-0362524S, Superior Court, Judicial District of Fairfield at Bridgeport; Michael Hearst, Administrator, et al. v. Darren Millington, et al., Docket No. CV99-0362467S, Superior Court, Judicial District of Fairfield at Bridgeport; and Raushiek Simpson, et al. v. Jennifer Brown, et al., Docket No. CV99-0362536S.

3 "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 79 Conn.App. 384, 390 (2003).

4 For convenience, all three defendants will be referred to as (the "Town").

5 Section I, subsection (2) of the insurance policy, affixed to General Star's supporting memorandum as exhibit 1, provides, in relevant part, that the "insurance does not apply to . . . (d) `[b]odily injury' or `property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, `auto' or watercraft owned or operated by or rented or loaned to any insured."

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Leisure Resort Technology Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006). The exhibits presented by the parties do not raise any genuine issue of material fact. The court must, therefore, decide if General Star is correct in its claim that it is entitled to judgment as a matter of law because the language of the insurance policy excludes coverage for the damages as alleged in the three underlying actions.

It is well established that an insurer's duty to defend is significantly broader then its duty to indemnify. "[A]n insurer's duty to defend . . . is determined by reference to the allegations contained in the [underlying] complaint . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 711-12 (2003). "If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." Internal quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409 (2000). "In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 48-49 (2002). Because the duty to defend is considerably broader then the duty to indemnify, "where there is no duty to defend, there is no duty to indemnify . . ." QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 382 (2001).

Because the related actions were settled before they went to trial, the court's determination of whether General Star is under a duty to indemnify a portion of the settlement can only be determined on this record by looking to whether the underlying allegations could have potentially fallen within the scope of coverage and given rise to a duty to defend. If the court determines that the allegations failed to give rise to a duty to defend, then it necessarily follows that there is no duty to indemnify. Id. It is appropriate to decide this issue on a motion for summary judgment, since the allegations made in the underlying cases and the language of the Policy are fixed and immutable, and this is therefore not a situation where either party could effectively benefit from pleading over. See, Larobina v. McDonald, 274 Conn. 394, 400-02 (2005).

"[T]he terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . [T]his rule of construction favorable to the insured extends to exclusion clauses . . . Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519 (2004).

The automobile exclusion to the Policy excludes claims for bodily injury or property damage (Coverage A) arising out of the ownership, maintenance, use or entrustment to others of any automobile owned by, operated by, or rented or loaned to any insured. Under the terms of the Policy, the Town of Trumbull Police Department is the named insured. Any Police Department employee acting with in the scope of his or her employment is also an insured. "In construing the policy language, [courts] are guided by the well established principle that the term `use' with reference to motor vehicles is to be interpreted broadly. The term `use' is the general catch-all of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition." (Emphasis in original; internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., supra, 261 Conn. 43. "[I]t is generally understood that for liability for an accident or an injury to be said to `arise out of' the `use' of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury `was connected with,' `has its origins in,' `grew out of,' `flowed from,' or `was incident to' the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile." Hogle v. Hogle, 167 Conn. 572, 577 (1975). In Hogle the court held that alleged injuries to driver's wife caused when his collie dog jumped from the back seat to the driver's seat striking the driver and causing him to lose control of the car and collide with a tree were not covered by the homeowners insurance policy which had an exclusion for the ownership, maintenance, or use of automobiles while away from the premises, the court saying: "It is sufficient to show only that the accident or injury `was connected with.' `had its origins in,' `grew out of,' `flowed from', or `was incident to' the use of the automobile in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile." Id. 167 Conn. at 577.

The Town argues that some of the plaintiff's claims in the underlying complaints are based on alleged facts other than the officer's use of the automobile which are the "efficient cause" of the alleged injuries, and that Connecticut recognizes the "concurrent cause doctrine" that when two or more concurrent causes or events take place, the efficient cause — the one that sets the other in motion — is the cause to which the loss is to be attributed. Under this analysis, the Town argues that the allegation that Officer Millington made no attempt after the collision to render aid to Cynthia Hearst, or Tammy Cheatham who were identifiable victims in imminent harm of death when he ran past them, and the allegations that the victims death or injuries were caused by the negligence of police Chief Theodore Ambrosini in that he, inter-alia, failed to properly supervise and train officer Millington with regard to regulations concerning high speed pursuits or failed to designate appropriate channels of communication or reasonable and prudent guidelines for the conduct of high speed pursuits state non vehicle-related negligence which was a substantial factor or the efficient cause of the collision which resulted in the injuries. The Town cites Frontis v. Milwaukee Insurance Company, 156 Conn. 492 (1968) for the proposition that Connecticut ascribes to the concurrent cause doctrine in determining whether or not a loss is covered by an insurance policy or excluded by an exception. Frontis involved a fire which had destroyed one four-story building which shared an undamaged party wall with another four-story building. Because of the loss of lateral support on the damaged side of the party wall, the Building Inspector of the City of New Haven had ordered the third and fourth floors of the undamaged building to be removed and the issue was whether or not the expense associated with removing those floors was a covered loss under the owner's fire insurance. The policy insured against "direct loss by fire" which the court construed to mean ". . . all losses which are the immediate consequences of fire or burning, or . . . all losses of which the fire was the proximate cause." (Emphasis added.) 156 Conn. at 496. The court found that the fire itself, and not the order of the building inspector was the efficient and proximate cause of the loss. The important point for purposes of this case is that the policy language itself in Frontis ("direct loss by fire") interjected the concepts of proximate cause and concurrent causes into the analysis. Frontis does not establish that a concurrent cause analysis is appropriate in considering every insurance coverage issue. Indeed in Hogle, supra, which involved an issue of an automobile exclusion provision very similar to the General Star policy exclusion involved in this case, the Court, which did not refer at all to Frontis, specifically said:

Aetna's obligation to pay the judgment rendered in favor of Mrs. Hogle does not depend on whether it was Mr. Hogle's negligent operation of the car or the activities of the dog inside the car which constituted the "proximate cause" of the accident . . . 167 Conn. 572, 578.

And, as previously pointed out, Hogle went on to hold that the "arising out of" language of an automobile exclusion provision requires only that the use of an automobile be "in some way `connected with'" the accident. 167 Conn. at 578.

Since this Motion for Summary Judgment was filed in December 2002, the Appellate Court has decided the case of United Services Automobile Association v. Kaschel, 84 Conn.App. 139 (2004), cert. denied, 271 Conn. 917 (2004), a case which strictly followed the holding in Hogle and is on point with the case at bar. The appeal in Kaschel arose out of a declaratory judgment action in which USAA sought to exclude coverage under its homeowners policy for an insured's failure to render aid to a victim following an automobile accident. The Kaschel policy contained an "arising out of" automobile exclusion similar to the one at issue in this case. The trial court had concluded that the allegations that the driver left the scene of the accident without rendering assistance were independent of the driver's use of his automobile and were not excluded under the homeowners policy. In reversing, the Appellate Court stated ". . . the term `use' with reference to motor vehicles is to be interpreted broadly" in accordance with "well established principle" [citing Hogle, supra] 84 Conn.App at 145. The Appellate Court held that the injuries alleged as a result of the insured's failure to render aid clearly arose out of the insured's use of his motor vehicle:

The motor vehicle accident was the operative event giving rise to the injuries alleged . . . and therefore those injuries were `connected with,' `had their origins in,' `grew out of,' `flowed from,' or were `incident to,' the use of the vehicle. This is not a case in which the allegations of the underlying complaint reveal that the injuries could have resulted only from the wholly independent act of failing to render aid. (Emphasis added.) (Internal quotation marks omitted.) 84 Conn.App at 146.

In reaching its holding of no coverage because of the automobile exclusion clause of the homeowners policy, the Kaschel court expressly disclaimed the concurrent cause doctrine advanced by the Town of Trumbull in this case: "The defendants urge us to apply the concurrent cause doctrine . . . We decline to do so because Hogle v. Hogle, supra, 167 Conn. 572 controls our analysis in the present case." Kaschel, supra at n. 7.

Based on the broad reading of automobile exclusion provisions in accordance with Hogle and Kaschel this court finds that there is no issue of material fact at issue and that all the bodily injury claims in the three underlying cases are clearly excluded from coverage by the automobile exclusion clause of the bodily injury coverage (Part A) of the General Star Police Professional Liability Policy. In all cases an automobile collision resulting from the police chase was the operative event of the injury sustained. Kaschel specifically applies the exclusion to the claims of failure to render aid. The reasoning applies equally to the claims of negligent supervision and negligent training. If there was not a motor vehicle accident there would not and could not be any claims based upon negligent supervision and training, which claims clearly "flowed from" and "had their origins in" the motor vehicle collisions. There are no facts pleaded which establish a claim that the injuries could have resulted wholly from the independent failures to train or supervise in the absence of the motor vehicle collisions. See, USAA Property Casualty Insurance v. McKeever, Docket No. CV925 1968S, Superior Court, Judicial District of Tolland at Rockville (Klaczak, J., August 9, 1995). (Automobile exclusion encompasses negligent supervision claim since the injuries sustained "flowed from" the ownership and use of a motor vehicle.)

That the bodily injuries sustained by the plaintiffs in the underlying cases arose from Officer Millington's operation of a Trumbull police cruiser is also established as the law of the case in this litigation by the ruling of Judge Wilson in holding that the claims of the underlying plaintiffs were excluded under coverage of another insurer, Hartford Casualty, because that policy excluded "injuries arising out of law enforcement activities". As Judge Wilson said: "It was, in fact, the car pursuit that allegedly caused the car accidents leading to the injuries." General Star Indemnity v. Millington, No. CV01 0183908, Superior Court, Judicial District of Stamford-Norwalk at Stamford (Wilson, J., October 25, 2004).

The Town argues that one claim alleged in the underlying litigation, the claim of bystander emotional distress made by Mabel Cheatham, the mother of Tammy Cheatham and Cynthia Hearst, is not a claim of "bodily injury" under Part A of the General Star Policy but is rather a claim of "personal injury" under Part B of the Policy which has no automobile exclusion clause. In the Sixth Count of the Cheatham v. Millington complaint, Mabel Cheatham alleges that she was standing on a sidewalk near the scene of the crash and observed the impact and consequent injuries to her daughters Tammy Cheatham and Cynthia Hearst which resulted in the death of Ms. Hearst shortly thereafter. As a result of witnessing this collision and the injuries to her daughters Mabel Cheatham claims that she has severe and substantial emotional anguish and distress resulting in sleeplessness, anxiety, and depression, and necessitating extensive counseling and therapy at her expense.

Under Part A of the Policy the term "bodily injury" is defined as ". . . bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Under Part B of the Policy, the term "personal injury" is defined as ". . . injury, other than `bodily injury' arising out of one or more of the following offenses: . . . j. humiliation or mental anguish. Provided that no offense shall be deemed to be or result in `personal injury' unless committed in the regular course of duty by the insured."

The Town argues that the term bodily injury in a liability policy does not include emotional distress unaccompanied by physical harm, citing Moore v. Continental Casualty Co., 252 Conn. 405 (2000). In Moore, the plaintiff had been sued by her sister claiming emotional distress damages on the allegation that the plaintiff had abused a power of attorney from their mother to mortgage a house jointly owned by the mother and the sister. The plaintiff was seeking a declaratory judgment that her homeowners insurance carrier owed her a defense under the bodily injury coverage of the policy. The Supreme Court disagreed, saying. ". . . the overwhelming majority of jurisdictions that considered this question have reached conclusions consistent with our interpretation of the insurance policy in question. The majority rule is that as a matter of law, the term bodily injury in a liability policy does not include emotional distress unaccompanied by physical harm." (Citations omitted.) Moore, supra 252 Conn, at, 411-12. Moore is clearly distinguishable from the claims of Mrs. Cheatham in this case. There was no physical injury or physical harm involved at all in Moore. The emotional distress damages claimed were based entirely on an alleged financial transaction. But the claims of Mrs. Cheatham against the Town in this case are clearly not "unaccompanied by physical harm". The physical harm to her daughters which she claims to have witnessed, is an essential part of her claim. Under Connecticut law, a claim for emotional distress is compensable only if it derives from the bodily injury to another. Galgano v. Metropolitan Property Casualty Insurance Company, 267 Conn. 512 (2004). (Insured father's claim for emotional distress of witnessing injuries to his son as passenger on a motorcycle operated by the father, "arose out of" bodily injury to the son and therefore covered by the son's $20,000 per person limit for bodily injury claims under uninsured motorist coverage.) Likewise, Mrs. Cheatham's claims of emotional distress "arise out of" the bodily injuries to her daughters, and would fall under the bodily injury coverage of Part A of the General Policy and would be barred by the automobile exclusion of Part A. Also, the damages claimed by Mrs. Cheatham, sleeplessness and depression have been held to be "bodily injuries". Peck v. Public Services Mutual Insurance Company, 363 F.Sup.2d, 137, 144 (D. Conn. 2005). In Peck, Judge Arterton, construing Connecticut law and citing Moore, supra, said:

With regular loss of sleep, therefore, the nervous system remains active and the body's powers are not being restored. Such a condition is not mental or emotional, but rather a physical condition directly relating to the body. Accordingly, this Court concludes that Public Service's policy covers" regular loss of sleep" as a "bodily injury". 363 F.Sup. at 145.

And finally, by using the word "offense" in the definition of "personal injury" under Part B, and qualifying that definition by the proviso that the offense must be "committed" in the regular course of duty of an insured, the Policy clearly contemplates that only intentional conduct or purposeful acts can constitute an act of "personal injury." Black's Law Dictionary defines "offense" as "an intentional unlawful act that causes injury to another and that gives rise to a claim for damages. This sense of offense is essentially the same as the common-law intentional tort." Black's Law Dictionary 1112 (8th Ed. 2004). The same authority defines "commit" as "to perpetrate (a crime)" Black's Law Dictionary 288 (8th Ed. 2004). Mirriam-Webster's Collegiate Dictionary defines "commit" as "to carry into action deliberately: perpetrate." Mirriam-Webster's Collegiate Dictionary 250 (11th ed 2003). In another context (pollution liability coverage) the Connecticut Supreme Court has held that ". . . personal injury provisions [of the plaintiff's general liability insurance policy] were intended to reach only intentional acts by the insured . . ." Buell Industries, Inc. v. Greater New York Mutual Insurance Company, 259 Conn. 527, 562 (2002). In reaching that conclusion the Buell court adopted the reasoning of the New York Court of Appeals in Columbia v. Continental Insurance Company, 83 N.Y.2d 618, 727-28, 634 N.E.2d 946, 612 N.Y.S.2d 345, (1994) that evidence that only purposeful acts were to fall within the purview of personal injury coverage is provided, in part by examining the types of torts enumerated in the coverage provision. Such an examination in this case shows that in addition to part j. of the definition relied upon by the Town ("Humiliation or mental anguish") the definition of "personal injury" in Part B of the General Star Policy includes: a. false arrest, detention or imprisonment; b. malicious prosecution; c, wrongful entry, invasion of the right of private occupancy, or denial of public occupancy; d. publication of slander or libel; e. violation of a person's right of privacy; f. assault and battery; g. erroneous service of process; h. violation of property rights; i. discrimination; and k. violation of civil rights — all clearly intentional, purposeful tortious acts, giving rise to the conclusion that item j was likewise intended to apply only to humiliation and anguish resulting from the insured's intentional or purposeful conduct. Since there are no allegations in the underlying complaint of Mrs. Cheatham of any intentional torts committed by Officer Millington, Chief Ambrosini or the Town of Trumbull, there is no claim stated that would fall under the "personal injury" coverage of part B of the Policy. This conclusion is consistent with the holding of the Supreme Court of Delaware, construing North Carolina law, in Liggett v. Ace Property Casualty Insurance Company, 798 A.2d 1024 (2002) ("personal injury" provisions of policy do not encompass negligence or products liability claims of smokers seeking damages for mental anguish).

Order.

Accordingly, the court finds that there is no material issue of fact and the plaintiff General Star is entitled to judgment as a matter of law. The plaintiff's motion for summary judgment is therefore granted.

So ordered. CT Page 10285