Opinion
No. FST CV 06 4008639 S
January 26, 2007
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Homesite Insurance Company ("Homesite") filed a declaratory judgment complaint against Victoria Koch, seeking a determination that Homesite does not have an obligation to defend or indemnify Koch in connection with a pending lawsuit initiated against Koch by Christopher Coughlin. To date, Coughlin has filed an application for prejudgment remedy ("PJR") in the underlying case. The proposed complaint attached to the PJR application alleges that in September 1997, Koch committed trespass when she established, without a valid easement, new subsurface lines for electric telecommunications, sewage and drainage pipes, which span the length of Coughlin's property. Coughlin further alleges that Koch's actions were "deliberate, arbitrary and capricious." Homesite argues, therefore, that because trespass is an intentional tort, Coughlin's action against Koch falls outside of Koch's Homesite policy, which specifically excludes coverage for bodily injury or property damage "which is expected or intended by the insured." In response, Koch argues that the exclusion does not apply and, therefore, Homesite has a duty to defend Koch in the underlying suit, as well as a duty to indemnify her for any liability she incurs.
In light of the statutory and case law, infra, this court is compelled to deny Homesite's motion for summary judgment as to both its duty to defend and its duty to indemnify Koch.
The Supreme Court has determined that the facts alleged in the complaint dictate whether the duty to defend is triggered. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins., 676, 274 Conn. 457, 463 (2005). Thus, "[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Internal quotation marks omitted.) Id. The court further stated that "[a]s a rule, this court construes broad policy language in favor of imposing a duty to defend on the insurer." Id., 466. Moreover, the duty to defend is broader than the duty to indemnify; R.T. Vanderbilt v. Continental Casualty Ins. Co., 273 Conn. 448, 470 (2005); and the burden is on the insurer to demonstrate that a claimed exception applies, so as to relieve the insurer of its obligation to defend. Id., 472 n. 28.
The mere allegation of trespass does not automatically bring the complaint within Homesite's intentional acts exclusion. Although trespass to land is an intentional tort; Robert v. Scarlata, 96 Conn.App. 19, 23 n. 1 (2006); Connecticut courts have held that the intent requirement applies only to the alleged trespasser's entry onto the land (or unlawful remainder upon the land). See, e.g., Vaillancourt v. Southington, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 01 0510816 (May 7, 2002, Aurigemma, J.) [ 32 Conn. L. Rptr. 191] ("[t]he intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question" (internal quotation marks omitted)). See also Jameson v. Newington, Superior Court, judicial district of Hartford, Docket No. CV 04 0832671 (February 27, 2006, Tanzer, J.) ( 40 Conn. L. Rptr. 803); Durkin Village Plainville v. Cunningham, Superior Court, judicial district of New Britain, Docket No. CV 03 0524079 (March 24, 2005, Dunnell, J.), aff'd in part, rev'd in part on other grounds, 97 Conn.App. 640 (2006).
"The essential elements of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916); 75 Am.Jur.2d., Trespass §§ 3, 8, 14, 25, 35." Anderson v. Clearview Investment Management, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4005191 (October 31, 2006, Beach, J.).
Thus, while a defendant can be liable in trespass, it is not necessary that he had the intent to bring about some injury to the land. See, e.g. Otley v. McArthy, Superior Court, judicial district of Hartford, Docket No. CV02 0816358 (December 11, 2003, Shapiro, J.) ("[o]ne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . . enters land in the possession of the other . . ." (internal quotation marks omitted)). Yet, Connecticut courts have held that for an intentional acts insurance exclusion to apply, the insured must have intended both the act and the result. See Amex Assurance Co. v. Horobin, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0258572 (June 15, 1998, Dorsey, J.T.R.) [ 22 Conn. L. Rptr. 280] ("[t]o show an intentional act within the exclusion of a policy two elements are necessary: (1) the insured must have intended to commit the act and (2) to commit the injury that resulted" (internal quotation marks omitted)). See also Markey v. Santangelo, 195 Conn. 76, 77 (1985) ("[n]ot only the action producing the injury but the resulting injury must be intentional" (internal quotation marks omitted)).
Therefore, because a question of fact remains as to whether Koch intended the injury that allegedly resulted to Coughlin's property, this court cannot find as a matter of law that Homesite has no duty to defend Koch in the underlying action. For this reason, summary judgment on the duty to defend issue is denied.
Koch's argument that Coughlin's trespass allegation could imply trespass on the case, rather that ordinary trespass, thus is unnecessary. It also is unpersuasive, because Connecticut courts regard trespass on the case as the antiquated predecessor to modern negligence actions.
Homesite has sought, additionally, a declaration that it need not indemnify Koch. This court, however, having decided that the insurer must defend, cannot go on to declare that the carrier need not indemnify. This is so, because further evidence may well clarify whether the indemnification burden is properly to be lifted. See DeCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 689 (2004) ("[i]n cases . . . in which the insurer's duty to defend has not been the subject of a successful challenge [by an insurer], there remains the possibility that the facts adduced in the underlying action will demonstrate that the insurer also has a duty to indemnity"). See also Vermont Mutual Ins. Co. v. Walukiewicz, Superior Court, judicial district of New London at Norwich, Docket No. 410133 (November 7, 2006, Hurley, J.T.R.) ("[b]ecause the court hereby denies [the insurer's] motion for summary judgment as to the duty to defend, the court must also deny the motion as to the duty to indemnify); Traveler's Property Casualty Co. v. Laticrete International, Inc., Superior Court, judicial district of Hartford, Docket No. CV 044002006 (July 27, 2006, Keller, J.) ( 41 Conn. L. Rptr. 679) ("[b]ecause this court holds that there is a possibility that [the insurer] has the duty to defend [its insured] in the underlying action, [the insurer's] motion for summary judgment as to its duty to indemnify must also be denied"). Accordingly, this court must deny Homesite's motion for summary judgment on the issue of its duty to indemnify Koch.
Furthermore, whether Homesite has a duty to indemnify depends on whether Koch's alleged trespass constitutes an "accident" or "occurrence" under the policy, as well as on whether the exclusionary clause applies. These are questions of fact, which remain unclear. The Homesite policy at issue defines "occurrence" as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results during the policy period, in . . . "[b]odily injury" . . . or . . . "[p]roperty damage." (Emphasis added.) Homesite argues that any damage to Coughlin's property occurred upon installation of the subsurface lines, several years prior to Homesite's coverage of Koch, and was not continuing in such a way that would fall within the policy period. The injurious event, however, (here, installation) need not necessarily occur with the policy period; rather, the result of the injurious event must occur during the policy period. It is possible that it was the repeated exposure to the subsurface lines which harmed Coughlin's property. Whether the harmful result arose during the policy period remains a genuine issue of material fact as to which Homesite has not produced evidence sufficient to allow this court to rule as a matter of law. Therefore, on this additional ground, summary judgment is inappropriate.
The policy does not define "accident."
According to Homesite, Koch's policy covered the period from June 28, 2005, through June 28, 2006.
Because this court hereby denies Homesite's motion for summary judgment both on the issue of Homesite's duty to defend and on the issue of its duty to indemnify, it is unnecessary that this court consider Koch's other arguments in objection to Homesite's motion for summary judgment. Specifically, Koch argues: (1) Coughlin's proposed complaint provides an insufficient basis for a declaratory judgment action against Koch; (2) Homesite improperly failed to join Paul Koch, Victoria Koch's husband, in the declaratory judgment action; (3) Homesite failed to attach a copy of the Coughlin complaint to its [Homesite's] complaint for declaratory judgment, thus depriving interested parties of sufficient notice.
In light of the foregoing, Homesite's motion for summary judgment is DENIED.