Opinion
No. FST CV 084015401S
March 31, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #115
BACKGROUND
On November 11, 2008, the plaintiffs, Nationwide Mutual Fire Insurance Company and Nationwide Mutual Insurance Company, commenced a declaratory judgment action against the defendants, Jeffrey Pasiak, Pasiak Construction Services, LLC and Sara Socci and Kraig Socci. In their November 11 complaint, the plaintiffs allege the following facts: By way of a complaint dated March 12, 2008, Sara Socci and Kraig Socci (Soccis), filed a lawsuit naming as the defendant, Jeffrey Pasiak (the Pasiak lawsuit). The Pasiak lawsuit stems from an incident that occurred on May 9, 2006 in the home/business of Pasiak Construction Services, LLC at 217 Soundview Avenue, Stamford, Connecticut. The operative complaint in the Pasiak lawsuit alleges that Pasiak Construction Services, LLC, employed Sara Socci part time in the business. On May 9, 2006, a masked man holding a gun entered the home/business in an effort to break into a safe. This man, Richard Kotulsky, restrained Sara Socci by tying her hands, covering her face and placing her on the floor as he demanded the combination to a safe located in the house of Jeffrey Pasiak. Sara Socci also alleges that the armed robber threatened her and her family. The complaint further alleges that Pasiak returned to the business during the course of the robbery and was attacked by the robber. Pasiak was able to defend himself and discovered when he pulled the robber's mask off that he was an acquaintance named Richard Kotulsky. The Soccis claimed that having recognized the robber as an acquaintance, Pasiak assisted him in the continued restraint and attempts to prevent Sara Socci from reporting the crime to the Stamford police. The Soccis allege that the actions of Pasiak were not an accident and that his conduct could be deemed a criminal violation of the Connecticut Penal Code. The complaint of the Pasiak lawsuit was amended on July 11, 2008. The operative complaint for purposes of this motion is the six-count amended complaint. The plaintiffs in the Pasiak lawsuit have alleged that there was a false imprisonment (Count 1), negligence (Count 2), intentional infliction of emotional distress (Count 3), reckless infliction of emotional distress (Count 4), negligent infliction of emotional distress (Count 5) and one claim by Kraig Socci of loss of consortium (Count 6).
At the time of this incident, the plaintiffs had issued three policies to Jeffrey Pasiak There was a Homeowners Policy, #5106 HO 198219 (Homeowners Policy) for the time period of March 12, 2006 to March 12, 2007, a Nationwide Auto Policy, #5106 D 885874 for the time period of April 19, 2006 to June 20, 2006 (Auto Policy) and a Personal Umbrella Policy, #5106 PU 903400 for a period from April 19, 2006 to March 27, 2007 (Umbrella Policy). The parties have agreed that the auto policy is not applicable to the incident that is the subject of this motion. The plaintiff contends that the defendant's acts are excluded from coverage under the homeowners policy and the umbrella policy.
The plaintiff has named as a defendant, Pasiak Construction Services, LLC, but the exhibits attached to the memorandum indicate that the only policyholder for each policy is Jeffrey Pasiak.
On November 11, 2008, the plaintiffs filed this action against Pasiak, Pasiak Construction and the Soccis seeking a declaratory judgment that they are not required to provide the defendants, Pasiak and Pasiak Construction LLC, with a defense or indemnification. On July 27, 2009, the plaintiffs submitted a motion for summary judgment with supporting exhibits and documents. The defendants, Pasiak and Pasiak Construction submitted memorandum and exhibits in opposition to the motion for summary judgment and a cross motion for summary judgment on September 16, 2009. On October 1, 2009 the defendants Sara and Kraig Socci submitted a memorandum in opposition to the motion for summary judgment. The plaintiffs filed a reply memorandum dated September 29, 2009.
The motions for summary judgment were argued at short calendar on December 14, 2009.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Practice Book § 17-54 provides that the Superior Court will "render declaratory judgments as to the . . . nonexistence (1) of any right, power, privilege or immunity . . . whether such right, power, privilege or immunity now exists or will arise in the future." Practice Book § 17-55 provides the conditions for seeking declaratory judgment; and trial courts are afforded wide discretion in rendering declaratory judgment. Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 83, 571 A.2d 153 (1990).
The plaintiff, Nationwide contends that the actions described in the complaint are not covered by the policies issued to Jeffrey S. Pasiak. In general, the plaintiff contends that the actions of Pasiak clearly lead to a reasonable inference that the events involved crimes; that the conduct is not covered because it is not an "accident," that is, the basic definition of an "occurrence" under the policies; and that the conduct comes within specific exclusions within the policy.
The defendant has three separate policies which are the subject of this action. The first is a Nationwide Homeowner Policy, #5106 HO 198219, the second policy is a personal umbrella policy, #5106 PU 903400, and the last is an auto policy, #5106 D 885874. Each of these policies were in effect during the time of this incident, May 9, 2006. However, the parties have agreed that the auto policy is not applicable for the claims in the instant action.
It is appropriate for the court to determine whether an insured has a duty to defend and indemnify its insured. St. Paul Fire Marine Ins., Co. v. Shernow, 22 Conn.App. 377, 381, 577 A.2d 1093 (1990)
"Whether an insurer is obligated to defend an insured is determined by the facts in the underlying complaint, and not the titles assigned to the particular causes of action, State Farm Fire Casualty Co. v. Bullock, [ supra 19 Conn. L. Rptr. 599, 602)]. For `[i]f the title of the cause of action were controlling, the duty to defend would be manifest.'" Flint v. Universal Machine Co., 238 Conn. 637, 646, 679 A.2d. 929 (1996). Therefore, in order to evaluate whether a suit gives rise to a duty to defend, the four corners of the complaint must be examined to see if it "appears on its face" to be within the coverage afforded. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 255, 268 A.2d 663 (1970). The allegations in the complaint, guide the court in a decision as to whether there is a duty to indemnify. Flint v. Universal Machine Co., 238 Conn. at 646.
"It is beyond dispute that an 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 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 [that] bring the injury within the coverage, then the [insurer] must defend the insured . . . Accordingly, an insurer's duty to defend its insured is triggered without regard to the merits of its duty to indemnify." (Citations omitted; internal quotation marks omitted.) Wentland v. American Equity Ins. Co., 267 Conn. 592, 600, 840 A.2d 1158 (2004).
In its memorandum of law, the plaintiff argues that under either policy it is entitled to summary judgment because the allegations of the complaint clearly demonstrate that there is no genuine issue of fact that the acts do not satisfy the definitions "occurrence" in the policies for coverage and that the acts are specifically excluded based upon terms of the policies.
Each of the policies at issue in the instant matter, refer to the "occurrence" as an "accident." The definition of these terms has been described as "an event that is unintended from the perspective of the insured," marked by "a lack of intention or necessity, often opposed to design," or "a sudden event or change occurring without intent or volition . . . and producing an unfortunate result." Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 594 (2009). The plaintiff argues that the actions of Jeffrey Pasiak were not an occurrence as described in the policy, that is, his actions were not accidental. In Vermont Mutual Ins. Co. v. Walukiewicz, the court examined the breadth of these terms in relation to a claim that self-defense would not qualify for coverage because it was an intentional act. The court in analyzing the terms dissected the actions of the defendant and thereafter evaluated the acts to determine if they were by intentional design or rather by a sudden, unforeseen event. In doing so, the court was open to the fact that many actions may be interpreted in different respects. In doing so, the court examined plausible explanations for the response of the insured and thus utilized an objective approach. In viewing the court's analysis in Vermont Mutual Ins. Co., this court is cognizant that the actions of the insured, Jeffrey Pasiak, could very well be interpreted as what the court called "an unlooked for mishap, or untoward event or condition not expected." (Citations omitted.) Vermont Mutual Ins. Co. v. Walukiewicz, supra, 595. The amended complaint in the Pasiak case provides acts that could be interpreted in a number of ways by the court including that they were accidental or untoward or unexpected. This open ended view could provide the circumstances that will lead to the coverage. If there are two equally plausible interpretations of an insurance policy provision, tenets of construction dictate that we rely on the one favoring coverage. Vermont Mutual Insurance Co. v. Walukiewicz, supra 595-96, citing Galgano v. Metropolitan Property and Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004) Because the interpretation of the acts of Jeffrey Pasiak are open to a number of interpretations including whether it was an accident, or spontaneous or unplanned within the definition of an occurrence, the plaintiff has not demonstrated this is not an "occurrence" within the policy.
The plaintiff presents similar argument as to the exclusion for intentional acts for both the homeowners and the umbrella policy. The homeowners policy states: "We will pay damages an insured is legally obligated to pay due to an occurrence resulting from negligent personal acts or negligence arising out of the ownership, maintenance or use of real or personal property . . ." (Plaintiff's Exh B, page G1.) The policy defines "occurrence" as "bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general condition." (Plaintiff's Exh. B., page G1.) The language of the umbrella policy defining coverage for an "occurrence" is broader than the homeowners policy. The policy defines this specifically as including a "personal injury." This personal injury includes conduct constituting "false imprisonment" and "wrongful detention." The umbrella policy further indicates that "personal injury" for conduct which is a "willful violation of the law by or with the consent of the insured" is excluded from coverage. This exclusionary language is ambiguous and inconsistent. This very language in the umbrella policy gives support to the obligation to defend a claim of false imprisonment and wrongful detention in accordance with the terms of the umbrella policy.
As to the exclusion for intentional acts in the homeowners policy, the plaintiff argues that the acts as described by the amended complaint incorporate intentional and criminal acts and therefore, there is an inference that the described acts are willful and intentional acts not covered by either policy. This argument is not supported by a completed review of the allegations set forth in the amended complaint. It is not surprising that the plaintiff emphasizes the counts in the amended complaint alleging intentional or wilful acts. However, this reading ignores the complaint as a whole and the interpretation of the policies that would be consistent with the allegations. In viewing the policy, the provisions should be read as a whole to give operative effect to every provision in order to reach an overall result. Tremaine v. Tremaine, 235 Conn. 45, 57, 663 A.2d 387 (1995).
Connecticut Practice Book § 10-25 states: "The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action." The plaintiffs in the Pasiak case pled in accordance with the practice book. Simply because the plaintiff does not emphasize the negligence claims does not mean that a jury would not consider a finding based upon negligent actions of Mr. Pasiak.
In the July 11, 2008 Pasiak amended complaint, counts two and five allege facts in support of negligent and careless acts. Count two states specifically:
44. As described above heedless of the consequences to her, Pasiak carelessly and negligently restrained Sara Socci and held her against her will, preventing her from leaving his home or his presence for several hours.
45. Pasiak's actions, statements and behavior described above, and his negligence and carelessness in communicating and otherwise dealing with Sara Socci, resulted in Sara Socci's confinement of sufficient consequence to cause her damages.
46. As a result of Pasiak's negligent and careless actions, statements and behavior, Sara Socci has suffered . . .
Likewise, count five of the amended complaint incorporates the same allegations of count two in setting forth a claim for negligent infliction of emotional distress.
The plaintiff's sole argument in regard to the negligence claim is that because of the nature of the alleged acts, the court should find the allegations of negligence bogus. However, it is not the duty of the court to determine at this time on a motion for summary judgment which cause of action will be successful or which cause of action will have greater weight. In regard to the present action it is not possible for the court to determine based upon the amended complaint, that the negligence action has no basis. The allegations do not provide a clear factual situation such as that in State Farm Fire Casualty Co. v. Bullock, Superior Court, judicial district of Ansonia-Milford at Milford, CV-38711, (May 30, 1997, Blue, J.) [ 19 Conn. L. Rptr. 599], where the acts and the factual pattern clearly led to a determination that there were intentional acts. In the Bullock case, the defendants had engaged in outward physical acts of striking the victim a number of times and causing him to lose consciousness. The plaintiff in Bullock alleged negligent assault in the complaint but the court found that the acts of the physical beating and threatening clearly demonstrated intentional acts. Here, the acts of Jeffrey Pasiak are not as clear. The court in ruling on the prejudgment remedy after a hearing found that the acts of Jeffrey Pasiak were a "misguided attempt to act as a Good Samaritan." A review of the many facts and allegations in the complaint do not directly lead to only one conclusion. It is well established that "intentional conduct and negligent conduct, although differing only by a matter of degree . . . are separate and mutually exclusive." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 775, 607 A.2d 418 (1992). The claims of negligence as alleged have a factual and legal basis and leave open the question of whether the alleged acts are intentional or negligent for a determination at trial.
In Hartford Accident Indemnity Co. v. Williamson, 153 Conn. 345, 216 A.2d 635 (1966), the court stated: "The obligation of the [insurance company] to defend Williamson does not depend on whether [the claimant] will be successful in obtaining a judgment against him. It depends on whether [the claimant], in his complaint against Williamson, has stated facts which bring his injury within the coverage of the policy . . ." (Citations omitted.) Williamson, supra, at 349.
The question of whether an insurer has a duty to defend its insured, is purely a question of law . . . Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184, 819 A.2d 765 (2003); see also Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 757 A.2d 1074 (2000).
". . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Insurance Co., 261 Conn. 37, 41, 801 A.2d 752 (2002). "Indeed, [i]f an allegation of the complaint falls even possible within the coverage, then the insurance company must defend the insured . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra 254 Conn. 399. When a complaint "states different causes of action or theories of recovery against the insured, and one such cause is within such coverage, the insurer is bound to defend with respect to those which, if proven, are within the coverage." Schurgest v. Schuman, 156 Conn. 471, 490, 242 A.2d 695 (1968).
An interpretation of the facts alleged in the amended complaint as they apply to the negligence claims leave open the question of intentional or negligent conduct and thus a finding that there is a genuine issue of fact that the coverage applies under both the homeowners and the umbrella policies. This is a determination for trial and not for summary judgment.
The plaintiff also argues that in accordance with the policy there are certain exclusions which would support a finding that the occurrence is not covered. In Connecticut, the insurer must prove "with a high degree of certainty" that the exclusion clause is applicable. Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). The plaintiff, in noting the exclusions refers to an occurrence "arising out of the business pursuits of an insured." The plaintiff also cites to the provision within the policy that excludes coverage for "[a]ny insured's obligation, including benefits required to be paid, under any of the following a) workers' compensation . . . or any similar law." (Plaintiff's Exh. B Pages H1 to H3, paragraphs 1g and m.)
The business pursuit language in the policy provides no specific definition of coverage. In Pacific Indemnity Ins. Co. v. Aetna Casualty Co., 240 Conn. 26, 688 A.2d 319 (1997), the Supreme Court defines the term in the context of a legal action for personal injuries caused during the course of a job tending to horses. In that case, the court examined claims of an injury linked to the alleged business pursuits.
In the underlying action, Sara Socci did not file a legal action based upon the robbery by Kotulsky during her employment. She did not file a claim alleging that the attempted robbery related to the business operations. The amended complaint filed by Sara Socci made claims solely against Jeffrey Pasiak as the individual who entered the house and thwarted the attempted robbery. Sara Socci has filed a legal action naming only Pasiak as a defendant. The allegations of the Soccis as to Pasiak create actions that are separate and distinct from the attempted robbery of a safe located in Pasiak's home. The amended complaint, count two, establishes that the actions of Pasiak were not in response to any work for the construction business but instead were either an effort to help a friend or a careless and negligent act on the part of Jeffrey Pasiak in keeping Sara at his home. A review of the alleged conduct of Kotulsky supports a finding that the robbery event is not related specifically to any work to be done by Sara Socci. The involvement of Sara Socci is linked directly to her mere presence in the office area. The facts establish that Kotulsky was attempting to rob a safe in the bedroom of the house. The amended complaint alleges that Kotulsky removed Sara from the office area to the bedroom where he was seeking the combination of a safe from her. Sara Socci was unable to assist him with the combination because as stated in the complaint, she "had not even known that there was a safe in the home." (Plaintiff's Amended complaint count one, paragraph 15.) The actions and involvement of Sara Socci was not a part of her employment. Each claim against the defendant in her complaint was based upon Pasiak's alleged acts in not permitting her to leave. The claim of Sara Socci was not that he kept her at the house for the purpose of some work-related event but because Richard Kotulsky was a friend and he wanted to protect him. The initial attempted robbery and the actions thereafter have not been shown to be in furtherance of the construction business of Pasiak Construction. Unlike the injured party in Pacific Indemnity Ins. Co., the allegations of Sara Socci in her amended complaint does not provide facts that link the robbery or the events thereafter to her employment with Pasiak Construction LLC or Jeffrey Pasiak. There is no link and other than Sara's presence at the home at the time of the attempted robbery she does not relate it to her duties. In Pacific Indemnity Ins. Co., Karen Deutsch was hired to care for the horses that were boarded for a fee at the barn. It was while performing her tasks of caring for a horse that she was kicked and injured. The business pursuit exclusion of the applicable policy in Pacific Indemnity Ins. Co., specifically excluded these acts.
The business pursuit policy in the instant policy is general in nature. The court in Pacific Indemnity Ins. Co. followed the analysis established by other jurisdictions in defining the term business pursuit. Pacific Indemnity Insurance Co. v. Aetna Casualty Surety Co., supra, 240 Conn. at 29. In particular, the elements examined by the court involved a definition that the business is a "continued or regular activity that is conducted for the purpose of profit, such as a trade, profession or occupation." (Citations omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty Co., supra, 29. In these definitions it is implicit that the activity is part of an ongoing activity for the purpose of a business. There is no denial that Jeffrey Pasiak operates a construction business. Sara Socci was employed by Pasiak Construction LLC to assist in office related work. What is not alleged is that Sara Socci incurred injuries as a result of her employment by Jeffrey Pasiak at 127 Soundview Avenue. The allegations as to the conduct of Jeffrey Pasiak are related to his treatment of her after the attempted robbery of his home. Her employment or the relation thereto is not an element in the basis of her claims of his negligent and/or intentional acts. In the Holyoke Mutual Ins. v. Schlectweg case cited by the plaintiff, there were specific duties of security that the named defendant did not satisfy as part of his employment. Holyoke Mutual Ins. v. Schletweg, Superior Court, judicial district of Fairfield at Bridgeport, CV 01385439 (September 19, 2003, Dewey, J.) In the allegations of the Holyoke complaint, the plaintiffs contend that the named defendant had been hired and given specific duties to provide protection and security as well as to act to supervise and eject the individual who caused the injury. His work duties and failure to diligently perform those exact duties were the alleged cause of the incident and injuries claimed in the legal action. There are no such allegations in the present amended complaint that would create a duty pursuant to employment or business. Therefore, the business pursuit exclusion is not applicable to the instant action. There is no element of any regular activity of the business that is related to the events. The occurrence did not arise out of the business of the insured Jeffrey Pasiak.
The plaintiff also contends that the defendant is not covered because the injury occurred while in the course of her employment and thus, it is excluded from coverage in accordance with the policy. This claim involves some of the same facts related to the court's findings of the business pursuit exclusion. There is no claim by Sara Socci that her injuries are the result of work-related activities. In fact, the policyholder is Jeffrey Pasiak and not the employer alleged in the amended complaint, Pasiak Construction, LLC. Based upon the analysis of the business pursuit exclusion and the plaintiff's failure to connect the employment to the defendant, Jeffrey Pasiak this exclusion does not apply.
CONCLUSION
Based upon the above, the court finds that that allegations of the amended complaint fall within the acts covered by both the homeowners policy and the umbrella policy. Thus, the court finds that the plaintiff has a duty to defend. The declaratory judgment is denied and the defendant's cross motion for summary judgment as to the duty to defend is granted.
As a result of the court finding that there is a duty to defend and the Supreme Court decision that a duty to indemnify should not be decided on a summary judgment, and the lack of any supporting argument by the plaintiff regarding the duty to indemnify, the court determines that judgment cannot enter at this time in favor of the plaintiff in this declaratory judgment as to the duty to indemnify. Hartford Accident and Indemnity Co. v. Williamson, 153 Conn. 345, 216 A.2d 635 (1966).