Rodrigue v. Patrons Mutual Insurance Company of Connecticut

Full title: Amy Rodrigue v. Patrons Mutual Insurance Company of Connecticut

Court: Superior Court of Connecticut

Date published: Dec 28, 2018

HHDCV176080235S (Conn. Super. Ct. Dec. 28, 2018)

Opinion

HHDCV176080235S

12-28-2018

Amy Rodrigue v. Patrons Mutual Insurance Company of Connecticut

ROBERT B. SHAPIRO JUDGE TRIAL REFEREE

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

ROBERT B. SHAPIRO JUDGE TRIAL REFEREE

This matter is before the court concerning the defendant Patrons Mutual Insurance Company of Connecticut’s¹ (Patrons or defendant) motion for summary judgment (#128) (motion). The court heard oral argument concerning the motion on November 5, 2018. For the reasons stated below, the motion is granted.

1 By order dated September 21, 2017 (#102.86), the court (Bright, J.), granted the plaintiff’s motion to substitute Patrons as the defendant. Originally, State Auto Insurance Company was the named defendant.

I

Background

The defendant contends that it was not required to defend or indemnify in an underlying action, wherein the plaintiff brought suit against her husband, Ryan Bialek (Bialek), in an action entitled Bialek v. Bialek, Docket No. CV 15 6062173, which she filed in the judicial district of Hartford. The defendant argues that it had no duty under the insurance policy which it issued to Bialek (policy) to defend Bialek in the underlying suit because the plaintiff’s complaint in that action did not allege an occurrence and because the allegations against Bialek fell within the policy’s exclusions. In addition, it asserts that because it had no defense obligation, it had no indemnity obligation. The current action is premised on the direct action statute, General Statutes § 38a-121. The plaintiff argues that the allegations in the underlying complaint fell possibly within the coverage of the policy.

Additional references to the factual background are set forth below.

II

Standard of Review

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a 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 ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).

"A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.

III

Discussion

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] 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).

"[C]onstruction of a contract of insurance presents a question of law for the court ... It is the function of the court to construe the provisions of the contract of insurance ... The [i]nterpretation of an insurance policy ... involves a determination of the intent of the parties a expressed by the language of the policy ... [including] what coverage the ... [insured] expected to receive and what the "[insurer] was to provide, as disclosed by the provisions of the policy ... [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 ... construing: any ambiguity in the terms ... in favor of the insured ..." (Internal quotation marks omitted.) Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, 142 Conn.App. 390, 405-06, 70 A.3d 74, cert. denied, 309 Conn. 909, 68 A.3d 662 (2013).

"Under the well established four corners doctrine, the duty to defend is broader than the duty to indemnify ... An insurer’s duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 739, 95 A.3d 1031 (2014).

"With respect to an insurer’s duty to defend a claim brought against the insured, an insurer’s duty to defend ... is determined by reference to the allegations contained in the underlying complaint ... Moreover, [t]he 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 ... Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend ... 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.) Misiti, LLC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 155-56, 61 A.3d 485 (2013).

"[W]e will not predicate the duty to defend on a reading of the complaint that is ... conceivable but tortured and unreasonable ... Thus, although an insurer is not excused from its duty to defend merely because the underlying complaint does not specify the connection between the stated cause of action and the policy coverage ... the insurer has a duty to defend only if the underlying complaint reasonably alleges an injury that is covered by the policy." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 156. "We often have stated that the duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend." (Emphasis added.) Id., 161.

The underlying amended complaint, dated October 27, 2016, plaintiff’s Exhibit 2 (underlying complaint), alleges the following relevant facts. On April 19, 2015, the plaintiff was in her bedroom when Bialek entered. They "then engaged into a verbal confrontation after which [Bialek] assaulted the plaintiff, causing the plaintiff to suffer personal injuries." See underlying complaint, first count, ¶3. The plaintiff alleged negligent assault and battery.

Here, she asserts that three allegations of negligence against Bialek, set forth in paragraph 4 of the underlying complaint, fell possibly within the policy’s coverage:

a. in that he used excessive force on the person of the plaintiff when he knew or should have known that the same would cause injury;

d. in that he failed to properly control his conduct so as not to injure the plaintiff; and

f. in that he negligently lost control of his faculties due to anger.

The plaintiff contends that these allegations suggest that Bialek exerted force without exercising due care and the resulting bodily injuries to the plaintiff were accidental.

In addition to these allegations, the plaintiff also alleged that Bialek "violently wrestled with the plaintiff when he knew, or should have known, that the same would cause, or was likely to cause, injury;" and "jumped on top of the plaintiff when he knew, or should have known, that the same would cause, or was likely to cause, injury[.]" See underlying complaint, first count, ¶4.

Here, the policy, under Personal Liability, page 14, provides, in relevant part, that Patrons will pay for bodily injury caused by an "occurrence."

At page 2, the policy states that" ‘Occurrence’-means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in a. ‘Bodily injury’ or b. ‘Property Damage.’" At page 1, "Bodily Injury" is defined as "bodily harm, sickness or disease, including required care, loss of service and death that results."

At pages 2-3 of FIO106 (1/13), the policy provides an Expected or Intended Injury exclusion, which excludes coverage for:" ‘Bodily injury’ or ‘property damage’ which is expected or intended by the ‘insured’ even if the resulting ‘bodily injury’ or ‘property damage’ a. Is of a different kind, quality or degree than initially expected or intended; or b. Is sustained by a different person, entity, real or personal property, than initially expected or intended."

"Specifically, where ... the policy language excludes coverage from damages resulting from intentional acts, the court examines the factual allegations to decide whether both intentional acts and intended results are present ... Moreover ... Connecticut courts have long eschewed the notion that pleadings should be read in a hypertechnical manner ... They thus read the complaint in a manner that advances substantial justice, construing it reasonably to contain all that it may fairly mean ... The result is that even when an action is [pleaded] as an unintentional tort [such as negligence], the court examines the alleged activities in the complaint to determine whether the insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the action, the court holds the action to be outside the coverage of the policy.

"Furthermore, harmful intent may be inferred at law in circumstances where the alleged behavior in the underlying action is so inherently harmful that the resulting damage is unarguably foreseeable ... Case law is clear that where the provisions in the insurance policy expressly exempt intentional acts of an insured from coverage, the court will grant summary judgment in favor of the insurer who relies upon such exemption ... When an insurer relies on an exclusionary clause to deny coverage, the initial burden is on is on the insurer to demonstrate that all the allegations within the complaint fall completely within the exclusion." (Citations omitted; internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 574-75, 142 A.3d 1079 (2016).

"[A]n insured’s intent to commit an act may be negated for purposes of an intentional conduct exclusion clause when the insured did not understand the nature or wrongfulness of his conduct ... [In] Allstate Ins. Co. v. Barron, 269 Conn. [394, ] 407, 848 A.2d 1165 [ (2004), the court] determined that the dispositive issue was not whether [the mother’s] actions were intentional in the narrow sense that they were deliberate, but whether her intent was negated by her inability to understand the wrongfulness of her conduct or to control her conduct." (Citation omitted; internal quotation mark omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 578. "The [insurer] also denied coverage on the ground that [the plaintiff’s] complaint failed to allege an occurrence under the policy, defined as an accident, claiming that it had no duty to defend [the defendant] because his actions did not fall within the scope of the policy. A typical definition of the term accident is a lack of intention or necessity, often opposed to design; an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition ... and producing an unfortunate result ... In short, the relevant inquiry in determining whether an accident has occurred is whether the injuries at issue were caused by the intentional design of the insured, or rather, by a sudden unforeseen event." (Internal quotation marks omitted.) Id., 571 n.8.

"What appears to be the most commonly cited Connecticut Supreme Court case on the issue has defined an ‘accident’ as: ‘[a]n unintended and unforeseen injurious occurrence’; ... ‘an occurrence for which no one is responsible’ ... 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 of expectation.’" (Citations omitted; emphasis in original.) Allstate Ins. Co. v. Tarantino, United States District Court, District of Connecticut, No. 3:15-cv-62 (SRU) (June 23, 2016, Underhill, J.).

As discussed below, although the underlying complaint purports to bring an action sounding in negligence, Bialek’s actions, as alleged in the complaint, were not accidental but, rather, were intentionally taken acts not covered by the policy.

"[T]he same conduct [cannot] reasonably be determined to have been both intentionally and negligently tortious." American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 777, 607 A.2d 418 (1992). "[I]ntentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103, 491 A.2d 368 (1985); are separate and mutually exclusive ... Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. ‘As [Oliver Wendell] Holmes observed, even a dog knows the difference between being tripped over and being kicked.’ [W. Prosser & W. Keeton, Torts (5th Ed. 1984) p. 33]." (Citation omitted.) American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 775-76.

Plaintiff cites Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980), for the proposition that someone can assault another person negligently, without intent (force exerted without due care). However, that case is distinguishable. There the teacher had a presumably "acceptable" reason to be exerting force in the first place because he was using corporal punishment, but caused more harm than intended.

Here, no such facts are alleged. According to the plaintiff’s allegations, the two individuals were fighting, and the husband plainly had intent to harm because jumping on top of the plaintiff and violently wrestling during an argument are inherently harmful. See State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575. He did not allege self-defense. This was not an accident, which would bring it within the definition of "occurrence" in the policy language. Moreover, because intent can be inferred from the entirety of the complaint, the incident falls under the "Expected or Intended Injury" exclusion as well.

The policy does not provide coverage for acts that do not constitute an occurrence, which is defined in the policy as an accident. "Accident" has been defined as "an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition" (emphasis added), State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 571, n.8; and "an occurrence for which no one is responsible." (Internal quotation marks omitted.) Allstate Ins. Co. v. Tarantino, supra, No. 3:15-cv-62 (SRU).

In determining whether the conduct alleged here constituted an accident, the relevant inquiry is "whether the injuries at issue were caused by the intentional design of the insured, or rather, by a sudden unforeseen event." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 571, n.8. In the present case, the injuries allegedly sustained by the plaintiff were brought about by Bialek’s intentional design, when he allegedly wrestled with and jumped on top of the plaintiff.

The plaintiff argues, however, that the underlying complaint sounds primarily in negligence. The plaintiff argues that her allegations support Patrons’ duty to defend because the, conduct alleged in the above-cited sub-paragraphs a, d, and f of paragraph 4 is unintentional, negligent conduct.

However, the court is instructed to "[examine] the alleged activities in the complaint to determine whether the insured intended to commit both the acts and injuries that resulted." (Emphasis added; internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575. Even when an action is pleaded as negligence, if the underlying conduct was intentional, "the court holds the action to be outside the coverage of the policy," and the labeling of the action is irrelevant. Id. Although the allegations state that Bialek was negligent, intentional activities allegedly gave rise to the plaintiff s injuries.

Furthermore, the policy expressly states that it does not cover intentional bodily injury even if such injury is of a different kind or degree than initially expected or intended. See policy (FIO106 (1/13)), pages 2-3. The policy expressly excludes coverage for injuries resulting from intentional acts regardless of whether the injuries sustained were those intended or were different from those expected and, therefore, excludes coverage for the alleged intentional acts of the defendant in the present case, which resulted in the plaintiff’s injuries, regardless of whether Bialek foresaw the injuries.

In addition, the court can infer the intent to cause injury based on the activities alleged in the underlying complaint-i.e., violently wrestling and jumping on top of the plaintiff. See State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575. Patrons had no duty to defend because Bialek’s alleged conduct did not constitute an accident or occurrence under the policy and the underlying acts alleged are intentional despite the complaint using negligence language.

Although Patrons had no duty to defend when comparing the allegations of the underlying complaint to the terms of the relevant policy, the court is instructed to take into consideration extrinsic evidence which tends to demonstrate a duty to defend exists. See Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 161. In the present case, the plaintiff has provided letters in which Patrons denied coverage and a stipulation concerning the resolution of her case against Bialek. See plaintiff’s Exhibits 3, 4, and 5.

Review shows that these letters and the stipulation do not raise a genuine issue of material fact sufficient to defeat summary judgment. None of the evidence provided (insurer’s claim rejection letters, stipulation) tends to show that Bialek acted in self-defense, and there is no deposition testimony that would negate the intent displayed in the allegations.

Plaintiff also argues that insurer wrongfully used evidence outside her underlying complaint to deny defense and indemnification in the underlying action. While Exhibit 3 does mention facts outside the complaint, the letter plainly states that the insurer made the decision based on the allegations of the complaint, stating that the incident alleged was not an accident/occurrence under the policy language.

Under these circumstances, the court need not consider the defendant’s argument that an additional exclusion also applies.

"[W]here there is no duty to defend, there is no duty to indemnify ..." DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).

CONCLUSION

For the reasons stated above, the defendant has shown that it is entitled to judgment as a matter of law. The defendant had no duty to defend or to indemnify Bialek. Accordingly, the motion for summary judgment is granted. It is so ordered.