Opinion
No. HHB-CV-08-5007513
November 3, 2009
MEMORANDUM OF DECISION RE AMBASSADOR'S MOTION FOR SUMMARY JUDGMENT — #123 LINCOLN GENERAL'S CROSS MOTION FOR SUMMARY JUDGMENT — #127
I. Nature and history of the Proceedings:
On January 24, 2008, Raymond Rodriguez, as administrator of the estate of his father, Ramon Rodriguez, filed a wrongful death action against Ambassador Wheelchair Services, Inc. (Ambassador). That action is currently pending in the Hartford Judicial District. At the time of the decedent's death on January 25, 2006, the various vehicles owned by Ambassador, which operated a medical livery service, were insured by Lincoln General Insurance Company (Lincoln).
HHD-CV-085016954 Raymond Rodriguez, Administrator v. Ambassador Wheelchair Services, Inc.
Lincoln has filed a suit against the estate and Ambassador in this judicial district, claiming that there is no coverage for the allegations of negligence levied against Ambassador by the estate under the commercial automobile policy (#PTA4001405) which Lincoln issued to Ambassador and which was in effect at the time of the decedent's death. Lincoln asserts in this action seeking a declaratory judgment, that it has no obligation to defend and no obligation to indemnify Ambassador relative to the wrongful death action pending in Hartford. Lincoln has filed this action in four counts. In the first count Lincoln alleges that the heart attack and death suffered by the decedent on January 25, 2006 did not result from the "ownership, maintenance or use" of a covered vehicle. In the second count Lincoln asserts that there is no coverage due to Ambassador's failure to comply with the "prompt notice" provision contained in an endorsement to the policy, as Lincoln did not receive notice until two years from the decedent's death. In the third count, Lincoln claims that the policy exclusion of the failure to provide any "medical or professional services" applies to the circumstances of the decedent's heart attack and death, as any failure to act in this regard by the driver would not be covered by the policy. Count four follows the format provided in Practice Book sections 17-54, et seq., relative to declaratory judgments.
On March 20, 2009 Ambassador filed its motion for summary judgment (#123) claiming that Lincoln has a duty to defend Ambassador in the Hartford wrongful death action. That motion was accompanied by a 16-page memorandum and four exhibits, including the policy. On June 10, 2009, Lincoln filed an objection to Ambassador's motion and its own cross-motion for summary judgment (#127), which was supported by a 20-page memorandum with six exhibits. On July 17, 2009, Rodriguez filed his objection to Lincoln's motion for summary judgment, accompanied by a 21-page memorandum and three exhibits. On July 20, 2009, Ambassador filed its objection (#129) to Lincoln's cross-motion with four additional exhibits and a 16-page memorandum of law. On August 7, 2009, Lincoln filed its reply to that objection. (#131.) Finally and somewhat belatedly, on October 29, 2009 Lincoln filed its reply to Rodriguez's objection (#132). In reaching its decision to grant Ambassador's motion for summary judgment and to deny Lincoln's cross motion seeking the same, the court has reviewed all of the above documents and many of the cases cited by the parties.
II. The Hartford J.D. Complaint
In the wrongful death action pending in Hartford, the plaintiff alleges that on January 25, 2006, between 7:00 and 8:00 a.m., Ambassador caused a wheelchair van, a covered vehicle, to be dispatched to the decedent's apartment at 181 Hillside Ave in Hartford in order to transport the decedent, who was ambulatory, for his weekly dialysis treatment. Shortly thereafter, the decedent while walking down the driveway to meet the defendant's van, which was parked in the street, fell to the ground and was assisted into the van by the driver, however, the decedent then suffered a heart attack and began "thrashing around" in the van. The administrator alleges that the driver then waited for nearly thirty-five minutes before contacting his supervisor, who thereafter summoned emergency medical personnel to the scene, however, by the time of their arrival, the decedent had expired.
The administrator alleges that the decedent's death, was the result of the negligence of the Ambassador and its driver in that he failed to appreciate the severity of the decedent's condition and to take action to save the decedent's life and in that Ambassador failed to properly train, educate and supervise its employees as to the proper protocol to follow in the event of an emergency. Insofar as this declaratory judgment action is concerned, in this court's view, the most significant allegations are contained in paragraph 11(c) and (d) of the Hartford complaint:
(c) in that it (Ambassador) failed to appropriately or timely contact or summon emergency medical personnel to the scene when it knew or should have known of the plaintiff's decedent's emergency medical condition, as aforesaid;
(d) in that the van operator chose to park the wheelchair van on the street, a considerable distance from the plaintiff's decedent's apartment, despite previous repeated requests by plaintiff's decedent that the van operator park on the driveway adjacent to the decedent's apartment to avoid a long walk to the van, due to the plaintiff's decedent's medical condition.
Relevant also is paragraph 12, which states: "As a direct and proximate result of the defendant's failure to exercise due care through its agents, servants and/or employees as described above, plaintiff's decedent's true medical condition was not finally detected, or appreciated or treated, thereby causing the death of the plaintiff's decedent . . ."
III. Claims of the Parties A. As to Ambassador's Motion For Summary Judgment
Ambassador asserts that Lincoln has a duty to defend as the allegations in the Hartford complaint fall within the parameters of the commercial automobile policy issued to it by Lincoln. A broad interpretation of the word "use" is required as, based upon the allegations in the underlying complaint, the decedent's heart attack and death was related to the use of the wheelchair van. Ambassador asserts that there was a causal connection between the use of the van and the decedent's death, due to the driver's choice to park on the street, which required the decedent to walk a longer distance from his apartment to the driveway than usual, which then caused him to fall and precipitated the heart attack and due to the driver's inordinate delay in summoning assistance and failing to call 911, while the decedent was slumped over in the van suffering a heart attack. Ambassador places heavy reliance on the holdings of our Supreme Court in Board of Education, Bridgeport v. St. Paul Fire and Marine Insurance Co., 261 Conn. 37 (2002) and U.S. Automobile Association v. Kaschel, 84 Conn.App. 139 (2004) in support of its position.
B. Lincoln's response in its Cross Motion For Summary Judgment
Lincoln claims that there is no coverage for what is alleged in the Hartford complaint, therefore, it has no duty to indemnify, and if a duty to indemnify is lacking, there is no duty to defend. Lincoln makes three basic arguments, citing the relevant portions of the policy:
(1) Section II — Liability Coverage, A. Coverage: (Page 2/11) We will pay all sums an "insured" legally must pay as damages because of "bodily injury . . ." to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of the covered "auto."
(2) Section IV — Business Auto Conditions, A.2.a.: (Page 7/11) In the event of "accident," claim, "suit" or" loss," you must give us or our authorized representative prompt notice of the "accident" or "loss." Include: (1) How, when or where the "accident" or "loss" occurred; (2) The "insured's" name and address; and (3) To the extent possible, the names and addresses of any injured persons and witnesses.
(3) Endorsement-Professional Services Not Covered: LIABILITY COVERAGE is changed by adding the following exclusions: This insurance does not apply to: 1. "Bodily injury" resulting from the providing or the failure to provide any medical or other professional services. (Emphasis added.)
As to the " use" issue Lincoln asserts that the decedent's heart attack and death were due to natural causes, making reference to the death certificate, which reflects that the decedent died of a heart attack as a consequence of late stage kidney failure. Exhibit E, #127. Therefore, Lincoln alleges that the decedent's death did not in any manner result from the use of the covered van. Lincoln makes reference to Ambassador's company policy that its drivers were not to enter driveways, as Ambassador's secretary-treasurer stated in his deposition, however, that seems to be contradicted by Ambassador's Incident Report, which reflects the supervisor's opinion that the driver was "lazy" in not pulling the van up the driveway and choosing to park in the street. Exhibit C, #128. Lincoln makes reference to a statement of a neighbor, Mr. Marrero, referred to in the Incident Report, that the decedent did not slip and fall on the way to the van, although this seems somewhat challenged by a statement made by Marrero's son referenced therein.
Lincoln argues that the decedent's heart attack and subsequent death had no connection with the operation of the van by its insured and was not a reasonable consequence of the "use" of the van, i.e. there was no nexus between the natural heart attack of the decedent and the use of the van. Lincoln attempts to distinguish the Board of Education and Kaschel cases, asserting that Ambassador cannot establish that the decedent's death was "connected with," "had origins in," grew out of," "flowed from," or was "incidental to" the use of the van.
As to the second count and the alleged late report of the incident by Ambassador to Lincoln, the insurer asserts that reporting the loss two years after it occurred was certainly not "prompt notice," as that term is used in the policy and that Ambassador is unable to sustain its burden to show that Lincoln was not prejudiced thereby. Lincoln correctly points out that, due to the late notice, Lincoln was unable to obtain a statement or to depose the driver, however, the driver, Mr. Wallace, did in fact give a statement shortly after the incident occurred. That statement is attached as Exhibit C to the Rodriguez objection to Lincoln's motion. (#129.)
As to the third count involving the endorsement, Lincoln maintains that the allegations in the Hartford complaint clearly claim that the driver was negligent for failing to provide professional services, therefore, this exclusion should be applied to deny coverage to Ambassador.
IV. Applicable Law And Discussion A. Declaratory Judgment
The plaintiff brings this action pursuant to Practice Books Section 17-54 et seq. and has met the three conditions provided in Section 17-55. The plaintiff has the requisite legal interest in bringing this action, as there is a bona fide substantial question and uncertainty on the issue of coverage under the commercial automobile policy and on the issue of whether the plaintiff has an obligation to defend and an obligation to indemnify the defendant Ambassador based on the policy provisions and the allegations in the underlying Hartford complaint. "The purpose of a declaratory judgment action is to secure an adjudication of rights, where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties. It is axiomatic that no insurer is bound to provide indemnification or a defense beyond the scope of the coverage described in the insurance contract, the policy." St. Paul Fire and Marine Insurance Co. v. Shernow, 22 Conn.App. 377, 380-81 (1990); affirmed at 22 Conn. 823 (1992). The request made by Ambassador that the court determine the duty to defend and by Lincoln that the court determine the duty to indemnify fulfills the very purpose of a declaratory judgment.
Sec. 17-55 provides that: A declaratory judgment action may be maintained if all of the following conditions have been met:
(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.
B. Summary Judgment
The appellate court has explained the nature and purpose of a motion for summary judgment in Baldwin v. Curtiss, 105 Conn.App. 840, 848 (2008):
Practice Book Section 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. The courts hold the movant to a strict standard. To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.
C. Coverage Issues
In Edelman v. Pacific Employers Insurance Company, judicial District of Hartford/New Britain, December 11, 1997, Aurigemma, J. [21 Conn. L. Rptr. 107], cert denied, 249 Conn. 918 (1999), the court stated:
Issues of insurance coverage and contractual disputes are particularly appropriate for summary judgment, because the meaning of the insurance contract presents questions of law unsuitable for jury resolution. Terms of an insurance policy are to be construed according to the general rules of contract construction. If the underlying complaint does not state a claim which appears on its face, to be within the terms of the policy coverage, an insurer is entitled to summary judgment.
An insurer must look at two documents when determining whether a claim has insurance coverage: 1) the policy under which coverage is sought; and 2) the language of the complaint against the insured. The insurer's duty to defend its insured depends on whether the complaint against the insured states facts which appear to bring the claimed injury within the policy coverage. The insurer may not look beyond the policy or the complaint and may not infer facts extrinsic to these documents when assessing an insured's entitlement to insurance coverage. Whether an insured has coverage under an insurance contract generally presents a question of law.
D. Accident
Although the parties have not substantially addressed this issue in their memoranda, the court will rely on our Supreme Court's definition of "accident." The dispute in this case, however, seems to center more around the phrase "ownership, maintenance and use" of a covered vehicle rather than on the definition, for policy coverage purposes, of the term "accident." "The word `accident' has been defined as "[a]n unintended and unforeseen injurious occurrence;" (emphasis added) Black's Law Dictionary (7th Ed. 1999); "an occurrence for which no one is responsible;" (emphasis added) Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934); and "an event of unfortunate character that takes place without one's foresight or expectation." (Internal quotation marks omitted; emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 255 Conn. 295, 307, 765 A.2d 891 (2001). Allstate Insurance Co. v. Barron, 269 Conn. 394, 408, note #10 (2004). Certainly neither Ambassador's driver nor the decedent expected or intended that the decedent would suffer what ultimately was a fatal heart attack while walking to the van (whether or not, as the Hartford complaint alleges, he slipped on the ice and fell to the ground) or that the alleged greater distance that the decedent was forced to walk due to the location of the van would precipitate that result. One could reach the conclusion that it was an unexpected and unintended unfortunate event.
E. "Use"
1. Bd. Ed. v. St Paul: In that case the underlying complaint against the board involved injuries sustained by a special education student, who was attacked by a fellow student in the boy's room after being allowed to leave the school bus unattended and unsupervised. Our Supreme Court stated:
Resolution of the certified issue in this case thus turns on whether the injuries alleged in the Doe complaint resulted from the "use" of the school bus within the meaning of the policy language. More specifically, the plaintiff claims that because the appropriate standard of care required the bus driver to keep the students on the bus until their discharge into the supervision and care of school personnel, the alleged harm resulted from the use of the school bus within the meaning of the policy language. The defendant claims, however, that the bus was not being used when the alleged harm occurred, that the alleged harm was not causally related to the use of the school bus, and, therefore, that the allegations of the complaint do not fall within the coverage afforded by the policy. We agree with the plaintiff that the allegation of negligence contained in paragraph 5(b) of count eleven of the Doe complaint cited previously sets forth a cause of action arising out of the use of the bus within the coverage of the policy. Accordingly, we conclude that the defendant has a duty to defend the plaintiff in the civil action brought against it by the Does. We begin by interpreting the policy language in order to determine whether, at the time of the plaintiff's alleged negligence, the bus was being used in a manner contemplated by the policy. "The [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . 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 . . . It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . . The policy words must be accorded their natural and ordinary meaning . . . In construing the policy language, we 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. [T]he term `use' must be understood in its most comprehensive sense; and the term is not confined to motion on the highway but extends to any activity in utilizing the insured vehicle in the manner intended or contemplated by the insured. `Use' is defined more broadly than the mere carrying of persons and, while it encompasses the `operation' of the bus [or, in this case, a van that picks up sick clients for safe delivery to and from their medical providers], it may also include a range of activity unrelated to actual driving . . . [T]he term `use' in the phrase ` arising out of the ownership, maintenance, or use' of a school bus includes disembarking school children . . . at the predetermined location." The determination of whether an act constitutes `use' of a motor vehicle [is] . . . very fact specific. When determining the meaning of the term `use' in an automobile insurance policy, a court must examine the factual circumstances of each case, including the particular characteristics of the vehicle. (Internal citations omitted; emphasis added.)
Board of Education v. St. Paul Fire Marine Ins. Co., supra, 261 Conn. 42-44.
2. Kaschel — The underlying complaint in that case, at least in part, involved an automobile accident caused by a defendant who after stopping and failing to render aid to the person injured by his alleged negligence, left the scene of the accident. The issue was whether the homeowners policy or the automobile policy covered the alleged failure of the insured to render assistance. The appellate court stated:
Section II(1)(e)(1) of the homeowner's policy excludes, inter alia, personal liability and medical payment coverage for claims of bodily injury or property damage "arising out of . . . the . . . use . . . of motor vehicles . . . owned or operated by . . . an insured . . ." "In construing [this] policy language, we are guided by the well established principle that the term `use' with reference to motor vehicles is to be interpreted broadly." Board of Education v. St. Paul Fire Marine Ins. Co., supra, 261 Conn. 43. In Hogle v. Hogle, 167 Conn. 572, 356 A.2d 172 (1975), our Supreme Court had the opportunity to analyze policy language similar to that at issue in the present case while discussing an exclusionary clause in a homeowner's insurance policy. In Hogle, the court stated that "it 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,' `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."
In the present case, it is clear that, pursuant to Hogle, any injuries that Robert Choquette allegedly sustained as a result of Kelly's failure to render aid to him arose out of Kelly's use of his motor vehicle.7 The motor vehicle accident was the operative event giving rise to the injuries alleged in count two of the amended complaint 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. (Emphasis added.)
U.S. Automobile Association v. Kaschel, supra, 84 Conn.App. 148
F. Prompt Notice
Aetna Casualty and Surety Co. v. Murphy, 206 Conn. 409 (1988), is the controlling authority on this issue. As noted in this case, Ambassador did not give notice to Lincoln until over two years from the incident resulting in the decedent's death in January 2006. It is notable, and extremely significant to this court that Ambassador was not aware of the administrator's wrongful death claim until such time that it was served with the Hartford complaint. Thereafter, Ambassador clearly gave prompt notice to Lincoln. Simply put Ambassador didn't even know there was a claim or a loss until such time it was sued by the estate. Therefore, Ambassador's alleged failure to provide Lincoln with the "prompt notice" required by the policy was not willful. In Murphy, Chief Justice Peters, first addressed the issue:
The sole issue in this appeal is whether an insured who belatedly gives notice of an insurable claim can nonetheless recover on the insurance contract by rebutting the presumption that his delay has been prejudicial to the insurance carrier. P. 410.
The Chief Justice went on to state, at pages 411-15:
As Murphy concedes, the trial court's decision accurately reflects numerous holdings of this court that, absent waiver, an unexcused, unreasonable delay in notification constitutes a failure of condition that entirely discharges an insurance carrier from any further liability on its insurance contract.
In our appraisal of the continued vitality of this line of cases, it is noteworthy that they do not reflect a searching analysis of what role prejudice, or its absence, should play in the enforcement of such standard clauses in insurance policies.
We are confronted, in this case, by a conflict between two competing principles in the law of contracts. On the one hand, the law of contracts supports the principle that contracts should be enforced as written, and that contracting parties are bound by the contractual provisions to which they have given their assent. Among the provisions for which the parties may bargain are clauses that impose conditions upon contractual liability. "If the occurrence of a condition is required by the agreement of the parties, rather than as a matter of law, a rule of strict compliance traditionally applies." On the other hand, the rigor of this traditional principle of strict compliance has increasingly been tempered by the recognition that the occurrence of a condition may, in appropriate circumstances, be excused in order to avoid a "disproportionate forfeiture." See, e.g., 2 Restatement (Second), Contracts (1981) 229; Corbin, S. Williston, Contracts.
In numerous cases, this court has held that, especially in the absence of conduct that is `wilful,' a contracting party may, despite his own departure from the specifications of his contract, enforce the obligations of the other party with whom he has dealt in good faith.
This case law demonstrates that, in appropriate circumstances, a contracting party, despite his own default, may be entitled to relief from the rigorous enforcement of contract provisions that would otherwise amount to a forfeiture. On the question of what circumstances warrant such relief, no better guidelines have ever been proffered than those articulated by Judge Benjamin Cardozo in the celebrated case of Jacob Youngs, Inc. v. Kent, 230 N.Y. 239 129 N.E. 889 (1921). Discussing the interpretation of contracts to ascertain how the parties intended to govern their contractual relationship, Cardozo first notes that "[t]here will be no assumption of a [contractual] purpose to visit venial faults with oppressive retribution." The opinion then continues: "Those who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result will be troubled by a classification where the lines of division are so wavering and blurred. Something, doubtless, may be said on the score of consistency and certainty in favor of a stricter standard. The courts have balanced such considerations against those of equity and fairness, and found the latter to be the weightier . . . Where the line is to be drawn between the important and the trivial cannot be settled by a formula. `In the nature of the case precise boundaries are impossible.' The same omission may take on one aspect or another according to its setting . . . The question is one of degree, to be answered, if there is doubt, by the triers of the facts . . . and, if the inferences are certain, by the judges of the law . . . We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence. Then only can we tell whether literal fulfillment is to be implied by law as a condition.
After quoting Judge Cardozo, Chief Justice Peters then instructs on the manner in which a proper balance should be struck: the Court states, at page 417-18:
In our judgment, a proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured's delay in giving notice of an event triggering insurance coverage. If it can be shown that the insurer suffered no material prejudice from the delay, the nonoccurrence of the condition of timely notice may be excused because it is not, in Restatement terms, "a material part of the agreed exchange." Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages.
G. Medical/Professional Services
As to the endorsement entitled, "Professional Services Not Covered," the policy and exclusion states: "This insurance does not apply to "bodily injury" resulting from the providing or the failure to provide any medical or other professional services." The only quoted language in the foregoing is "bodily injury," which means that the policy does not define "professional services." As noted, one of the claims of negligence in the underlying complaint is that Ambassador's driver waited an inordinate amount of time before picking up the phone and calling for assistance. Moreover, instead of dialing 911, which most people might do under the circumstances, the driver chose to telephone his supervisor, who then apparently summoned emergency assistance.
The issue presented, therefore, is whether the failure to dial 911 to summon emergency personnel can be referred to under the policy as a failure to provide professional services. That term is not defined by the policy; thus it imports some ambiguity. "[A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . . [giving the] words [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the insured." Hartford Casualty Insurance Co. v. Litchfield Mutual Fire Insurance Co., 274 Conn. 457, 463 (2005). When language contained in a policy of insurance manifests some ambiguity, our Supreme Court has applied the rule that ambiguous insurance contracts are to be construed in favor of the insureds to provide coverage. Buell Industries, Inc. v. Greater New York Mutual Insurance Co. et al., 259 Conn. 527, 555 (2002). "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." Vermont Mutual Insurance Co. v. Walukiewicz, 290 Conn. 582, 592 (2009). (Internal quotation marks and citations omitted.)
V. Conclusion A. In General
In DaCruz v. State Farm Fire and Casualty Co., 268 Conn 675, 687-88 (2004), our Supreme Court pointed out the significant distinction between an insurer's duty to defend and duty to indemnify:
As we repeatedly have stated, the duty to defend is considerably broader than the duty to indemnify. [A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify 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. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint. Moreover, "[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. 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." Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy. Because the duty to defend is significantly broader than the duty to indemnify, "where there is no duty to defend, there is no duty to indemnify." (Internal quotation marks and citations omitted; emphasis added.)
B. As to Duty to Defend
"[A] duty to defend an insured arises if the complaint states a cause of action, which appears on its face, to be within the terms of the policy coverage." Schwartz v. Stevenson, 37 Conn.App. 581, 584 (1995). "If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." Hartford Casualty Insurance Company v. Litchfield Mutual Fire Insurance Co., supra, 274 Conn. 463. Emphasis in original.
As to the first count of Lincoln's complaint, which alleges that the decedent's death did not arise out of the "use" of the Ambassador van, this court finds that, in light of the Supreme Court's holding in Board of Education and the appellate court's holding in Kaschel, Lincoln has a duty to defend the underlying Hartford wrongful death action based upon the allegations contained in paragraphs 11(c) and (d) of the Hartford complaint. The decedent's heart attack and death was, in this court's view, connected with, had origins in, grew out of, flowed from and was incident to the use of Ambassador's covered vehicle, as contemplated by the Lincoln's commercial automobile policy #PTA400-1405 as the use of the van at the time, at the place and in the manner alleged in the Hartford complaint was consistent with the nature of Ambassador's business, which was to transport sick persons safely to and from their medical appointments.
As to the second count, which addresses the "prompt" notice provision in an endorsement to the commercial automobile policy, this court finds that, given the fact that the late notice was not willful on the part of Ambassador and certainly excusable under the circumstances, and given the fact that the driver did provide a statement to Ambassador in writing on the day of the incident ( Exhibit C, #128), Lincoln was not unduly prejudiced by the passage of nearly two years until it was notified of the incident which occurred on January 25, 2006. Moreover, it appears to this court that Ambassador may have been greatly prejudiced by Lincoln's conduct in first agreeing to defend its insured in the underlying Hartford action and then reneging after Ambassador's general liability carrier was apparently notified of Lincoln's initial agreement to defend on a reservation of rights. See Exhibits C and D, #123.
As to the third count, in which Lincoln points to that portion of that policy, which excludes any claims based on the insured's alleged failure to provide "professional services," a term which is not defined in the policy, this court finds that one may easily conclude that the act of picking up a telephone and dialing 911 when someone is in obvious life-threatening distress is not a professional service within the meaning of the policy exclusion. This is particularly true given the principle enunciated by our Supreme Court that ambiguous, undefined language in an insurance policy should be construed in a manner that would cover the loss.
For the reasons herein stated, this court finds that Lincoln has an obligation to defend its insured in the underlying Hartford action. Ambassador's motion for summary judgment is, therefore, granted.
C. Duty to Indemnify
As to Lincoln's cross-motion for summary judgment, there are genuine issues of material fact to be resolved by the trier of fact, including: (1) Whether or not the decedent slipped and fell on the driveway on his way to the van; (2) Whether the company policy against picking up clients in their driveways was inconsistent with the actions of Ambassador's drivers in doing just that; and (3) The amount of time that transpired between the decedent entering the front seat of the van and his thrashing about, and the time interval between that incident, and the driver's call to his supervisor. More to the point, as our Supreme Court instructed in DaCruz, Lincoln's duty to indemnify may ultimately depend on the theory upon which any judgment which may be rendered on the underlying complaint is based. Given the court's analysis relative to the three applicable policy provisions to the facts and circumstances of this case, it does appear that Lincoln not only has a duty to defend, but may very well have a duty to indemnify. In any event, Lincoln's cross motion for summary judgment is denied.