New London County Mut. Ins. v. Riddick

Full title: NEW LONDON COUNTY MUT. INS. v. GWENDOLYN RIDDICK

Court: Connecticut Superior Court, Judicial District of Waterbury at Waterbury

Date published: Sep 16, 2004

2004 Ct. Sup. 13961 (Conn. Super. Ct. 2004)

38 CLR 7

Opinion

No. CV 03 0177973 S

September 16, 2004

MEMORANDUM OF DECISION

MATASAVAGE, JUDGE.

This matter is before the court on motion for summary judgment in a declaratory judgment action regarding an insurance company's duty to defend and indemnify in a pending lawsuit.

On April 28, 2003, the plaintiff, New London County Mutual Insurance Company (NLCM), filed a one-count complaint against the defendants, Gwendolyn Riddick, Darrell Doe,¹ through his guardian and next friend Ramona Wade and Ramona Wade individually. NLCM seeks a declaratory judgment that it has no duty to defend or indemnify Gwendolyn Riddick in the underlying lawsuit, which was brought on behalf of Darrell Doe, through his guardian Ramona Wade. See Wade v. Riddick, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177003.

1 The underlying complaint alleges that Darrell Doe was seven years old at the time of the alleged tort, and is a minor. Darrell Doe is a pseudonym given to him in this opinion to protect his privacy.

NLCM alleges the following facts in its complaint. In the underlying action, it is alleged that between June 1998 and February 2000, Darrell Doe was sexually molested by Terrance Riddick, the minor grandson² of Gwendolyn Riddick, while both were in Gwendolyn Riddick's care, custody and control. When Darrell Doe informed Gwendolyn Riddick of the abuse, Gwendolyn Riddick failed to take any steps to protect Darrell Doe. During this time, Gwendolyn Riddick had homeowner's insurance through NLCM. The policy excludes coverage for "bodily injury" that "is expected or intended by the `insured'" or that "[arises] out of sexual molestation, corporal punishment or physical or mental abuse . . ." As a result, the actions of Gwendolyn Riddick as alleged in the underlying lawsuit are excluded from coverage.

2 The underlying complaint alleges that Terrance Riddick was sixteen at the time of the alleged occurrences.

On November 18, 2003, NLCM filed a motion for summary judgment on the ground that there are no issues of material fact in dispute as to whether the claims in the underlying lawsuit arise out of sexual molestation, for which coverage is excluded. In support of the motion, NLCM submitted a memorandum of law, the amended complaint in the underlying action, a certified copy of the insurance policy and the affidavit of Catherine Cardinal, an underwriter for NLCM. On January 6, 2004, Darrell Doe filed a memorandum of law in opposition to the motion for summary judgment. NLCM submitted a reply memorandum on February 9, 2004.

I.

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." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "When determining the duty of an insurance company to defend an insured, [t]he court takes the facts as alleged in the underlying complaint and measures them against the language of the policy. If there is no coverage, it is proper to grant summary judgment." (Internal quotation marks omitted.) Sentry Claims Service v. Botwick, Superior Court, judicial district of New Haven, Docket No. CV 03 0477960 (June 8, 2004, Skolnick, J.) ( 37 Conn. L. Rptr. 251).

II.

NLCM moves for summary judgment on the ground that there are no material facts in dispute and it is entitled to judgment as a matter of law because it does not have a duty to defend or indemnify Gwendolyn Riddick in the underlying action. NLCM argues that it has no duty to defend or indemnify Gwendolyn Riddick because the underlying complaint is based on sexual molestation, which her policy expressly excludes from coverage. NLCM also argues that it does not have a duty to defend because the policy excludes coverage for intentional acts. In opposition, Darrell Doe maintains that NLCM has a duty to defend and indemnify Gwendolyn Riddick because the underlying compliant does not allege that Gwendolyn Riddick sexually molested him, but that she was negligent in failing to protect him. Darrell Doe also argues that NLCM's motion should be denied because there are disputed issues of material fact.

"The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the underlying] complaint with the terms of the insurance policy." Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). "[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 . . . [I]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Citation omitted; emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004). "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 omitted.) Id., 688.

"[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." (Citation omitted; internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins., 267 Conn. 512, 519, 838 A.2d 993 (2004).

In Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 389, the court reviewed the trial court's determination that the defendant insurer had no duty to defend the plaintiff in a separate civil action. The underlying action was brought on behalf of a minor who had been sexually abused by three other children while all four children were attending a preschool program operated by the plaintiff. Id. The underlying suit claimed that the plaintiff was negligent in its "failure (1) to supervise, (2) to investigate, (3) to train teachers, (4) to hire qualified teachers, (5) to report allegations of sexual abuse and (6) to keep [the minor] safe from harm." (Internal quotation marks omitted.) Id., 389-90 n. 4.

The Supreme Court, in reviewing the insurance policy, noted that the policy excluded from coverage "bodily or personal injury `arising out of: (a) the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured, or (b) the negligent: (i) employment; (ii) investigation; (iii) supervision; (iv) reporting to the proper authorities, or failure to so report; or (v) retention . . . of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above.'" Id., 400-01. The court "compare[d] the allegations [in the underlying complaint] with the abuse or molestation exclusion of the plaintiff's policy to determine whether [the] allegations reasonably may be read to fall within that policy exclusion." Id., 402. In affirming the trial court, the Supreme Court held "that the policy explicitly excluded from its coverage the conduct alleged in [the underlying] complaint and, therefore . . . the trial court properly determined that the defendant had no duty to defend the plaintiff." Id., 397.

In Middlesex Mutual Assurance Co. v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 396760 (September 17, 2003, Dewey, J.), the plaintiff insurer brought a declaratory judgment action against the defendants, a minor and his parents, to determine whether it had a duty to defend and indemnify the defendants in an underlying action. The underlying action was brought against the defendants as a result of the minor defendant's alleged sexual contact with another minor. Id. The underlying complaint alleged that the defendant parents failed to control the minor defendant, they fostered a sexually deviant environment at home and they failed to take steps to prevent the minor defendant from harming others when they knew of his sexually deviant behavior. Id.

In ruling on the plaintiff's motion for summary judgment, the court examined the allegations of the underlying complaint and the insurance policy. Id. The insurance policy excluded "bodily injury that arises out of sexual molestation." Id. In granting the plaintiff's motion for summary judgment, the trial court held that "[t]he sexual molestation exclusion precludes coverage for an entire class of risks arising out of specified conduct and does not turn on the intent of the insured . . . The underlying action is based totally upon allegations of sexual contact. As a consequence the policy exclusions apply." (Citation omitted; internal quotation marks omitted.) Id. The court further held that because intentional conduct and conduct arising from sexual molestation are excluded under the policy, the plaintiff "has no duty to defend those counts directed against the defendant parent." Id.

In the present action, the following facts are alleged in count one of the amended complaint in the underlying lawsuit. Gwendolyn Riddick operated a foster home located at 110 Griggs Street, Waterbury, Connecticut. While minors Darrell Doe and Terrance Riddick resided at the foster home under the care, custody and control of Gwendolyn Riddick, Terrance Riddick "initiated and engaged in various illegal sexual" and "deviant acts" with Darrell Doe, including sodomy. Gwendolyn Riddick knew that these sexual and deviant acts occurred. Gwendolyn Riddick was negligent in that she "(a) [f]ailed to protect Darrell Doe from the deviate acts of [Terrance Riddick]; (b) [f]ailed to protect Darrell Doe from the physical abuse . . . (e) [f]ailed to use reasonable care to protect Darrell Doe from injuries; (f) [e]xposed Darrell Doe to increased risk of injury; (g) [f]ailed to provide a safe foster home." The second count incorporates allegations from the first count and further alleges that Ramona Wade, as the guardian and next friend of Darrell Doe, has and will continue to incur expenses associated with the illegal and deviant acts Darrell Doe endured. The third count incorporates the same allegations as in count one and further alleges that Gwendolyn Riddick's conduct constituted negligent infliction of emotional distress in that she failed to prevent her grandson from, inter alia, touching, rubbing and fondling Darrell Doe.

A review of the declaration page of the insurance policy reveals that Gwendolyn Riddick is the sole named insured. Pursuant to the policy, the term "insured" includes the named insured, Gwendolyn Riddick, "and residents of your household who are . . . persons under the age of 21 and in the care of any person named above." (Insurance Policy: Definitions, 3 (b).) Under the "Personal Liability" section of the policy, the plaintiff agrees to provide coverage when "a claim is made or a suit is brought against an `insured' for damages because of `bodily injury' . . . caused by an `occurrence.'"<sup>3</sup> (Insurance Policy: Coverage E — Personal Liability.) The policy excludes from coverage "`bodily injury' . . . [a]rising out of sexual molestation, corporal punishment or physical or mental abuse . . ." (Insurance Policy: Section II — Exclusions, 1(k).)

3 "Occurrence" is defined in the policy 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.' . . ." (Insurance Policy: Definitions, 5(a).)

"[I]t is generally understood that for liability for an accident or an injury to be said to `arise out of' [an occurrence or offense], 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' [that occurrence or offense], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence or offense] . . . To `arise' out of means `to originate from a specific source.' Webster's Third New International Dictionary (1961) . . . The phrase arising, out of is usually interpreted as indicat[ing] a causal connection." (Citations omitted; internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Favreau, supra, Superior Court, Docket No. CV 02 396760.

All three counts in the underlying complaint have a causal connection with the alleged sexual molestation. "The [word] . . . `molest' [is] commonly used to describe unwanted sexual contact. For example, one of the several definitions of . . . `molest' is to meddle or interfere with unjustifiably often as a result of abnormal sexual motivation." (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 401 n. 15, citing Webster's Third New International Dictionary. Certainly, deviant and illegal sexual acts, including sodomy, touching, rubbing, and fondling, which are the acts at issue, are included within the definition of sexual molestation. As a result, the language in the molestation exclusion is clear and unambiguous; see id., 402; and include the acts alleged in the complaint.

Furthermore, as Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 387, and Middlesex Mutual Assurance Co. v. Favreau, supra, Superior Court, Docket No. CV 02 396760, make clear, a sexual molestation exclusion applies to a named insured if the claims against the insured arise out of or flow from the alleged sexual molestation. In the present case, because the claims against Gwendolyn Riddick are causally connected to the alleged sexual molestation, the exclusion in the policy applies, and NLCM does not have a duty to defend and, consequently, no duty to indemnify Gwendolyn Riddick in the underlying action. DaCruz v. State Farm Fire and Casualty Co., supra, 268 Conn. 688. Said another way, but for the alleged sexual molestation of Darrell Doe, Gwendolyn Riddick would not have been sued.

Based on the foregoing, New London County Mutual Insurance Company's motion for summary judgment is granted.

Matasavage, J.