Opinion
No. HHB CV 05 4005150 S
May 24, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#120)
This matter is before the court concerning the plaintiff Allstate Insurance Company's motion for summary judgment. The parties presented oral argument at short calendar on April 2, 2007. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
This case involves a dispute over insurance coverage for alleged conduct, including sexual assaults by the defendant/insured's son, at a daycare facility which was run by the defendant/insured in her condominium home. The plaintiff, Allstate Insurance Company (Allstate), filed a second amended complaint seeking a declaratory judgment on May 3, 2006 (#119), which alleges the following relevant facts. On or about March 23, 1995, Allstate issued a condominium owners policy to the defendant, Joanne Linarte. This policy was renewed for the two subsequent years. In the condominium unit covered by the insurance policy, the defendant operated a daycare facility which provided overnight services. Two lawsuits have been commenced against the defendant by the mother, Mother Doe, of two children, Jane and Jessica Doe, who attended the defendant's daycare facility during the years that she maintained an insurance policy with Allstate. The underlying complaints filed by Mother Doe allege that the defendant served as the director of a full-service daycare facility, provided daycare to the children who attended, and was responsible for supervising others who came into contact with the children. The Doe complaints further allege that Jane and Jessica Doe were sexually assaulted at the daycare facility by the defendant's son, Francisco Linarte, Jr., starting in or about 1996 and continuing until 2002.
Mother Doe is a party here also, as an intervening defendant. See motions to intervene (##113, 113.50, 114, 114.50); second amended complaint (#119). For clarity, the term "defendant" will only refer to Joanne Linarte.
Allstate states that it is currently providing a legal defense to the defendant in the civil actions brought by Mother Doe. Allstate further states in its complaint that this defense is provided under a full reservation of rights to assert defenses under the terms of the insurance policy. Allstate alleges that there are several policy exclusions that bar coverage, for business activities, intentional acts, criminal acts and negligent supervision.
Additionally, Allstate alleges that, under the terms of the insurance policy, the insured was required to promptly notify the insurer of any loss and that the defendant failed to do so in regards to the loss occasioned by her son's actions. Allstate has not moved for summary judgment on the ground of lack of prompt notice.
On September 13, 2006, Allstate filed a motion for summary judgment, contending that it is entitled to summary judgment and a declaratory judgment that it has no duty to defend or indemnify the defendant, because the claims in the underlying civil cases brought by Mother Doe fall within policy exclusions for negligent supervision, intentional/criminal acts and business activities. Further, Allstate argues that the claims made in the underlying cases do not allege bodily injury occasioned by accident. In support of its motion, along with a memorandum of law, Allstate has filed several exhibits, consisting of copies of the complaints from the underlying cases filed by Mother Doe against the defendant, arrest records for both the defendant and her son, answers to a request for admissions by the defendant, and certified copies of the condominium owners insurance policies issued by Allstate for 1995-1998. On December 15, 2006, Mother Doe filed a memorandum of law in opposition to Allstate's motion for summary judgment (#133), accompanied by exhibits, consisting of copies of pleadings filed in this action. The named defendant, who filed a pro se appearance, has not filed an opposition to the motion for summary judgment; however, she appeared at short calendar and presented oral argument. She is seeking coverage from Allstate. Also, reply briefs from both Allstate and Mother Doe were filed.
The copies of the defendant's insurance policies with Allstate are certified. However, the other items provided as exhibits to Allstate's motion are not certified. Neither the defendant nor Mother Doe has objected to the court's consideration of these documents on the grounds that they are uncertified.
Allstate states in its memorandum of law in support of the motion for summary judgment that the policy language for 1997-98 was identical to the policy language in effect for 1996-97. The assertion that the 1997-98 policy was identical to the previous policy is undisputed. Mother Doe also refers to Allstate's exhibits to discuss policy language. Additionally, unless the language is noted as being different in the policies, further references to the "policy" will be to any of the policies and their similar language.
II STANDARD OF REVIEW
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [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 . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[I]n 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[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, no objection was raised on the ground that certain exhibits were not certified.
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. In such circumstances, the facts are not in dispute . . ." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., 267 Conn. 592, 599 n. 7, 840 A.2d 1158 (2004).
"Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Montoya v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006).
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." (Internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199, 901 A.2d 666 (2006).
"[T]he 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire and Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004).
"[I]f the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107 (2003). "[I]t is well established . . . that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005). "[T]he duty to defend means that the insurer will defend the suit, if the injured party states a claim, which . . . is for an injury covered by the policy; it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact covered." (Internal quotation marks omitted.) Id.
In its memorandum of law accompanying its motion for summary judgment, Allstate argues that the insurance policies contain exclusions from coverage for criminal acts and that those exclusions are applicable to the underlying complaints. In her opposition to Allstate's motion for summary judgment, Mother Doe argues that the exclusions do not operate to bar coverage by Allstate. In her sur-reply, page 2, she states that she does not rely on any of her special defenses to oppose Allstate's motion. Mother Doe argues that the underlying complaints do not allege criminal conduct on the part of the defendant and that the alleged criminal acts of the defendant's son have no bearing on whether the policies provide coverage.
As discussed below, the court finds that the criminal acts exclusions are dispositive. Accordingly, the court need not consider the other exclusions which Allstate raises in its motion.
Finally, Allstate argues that the policy only covers bodily injury arising from an "accident," and that the underlying complaints allege intentional acts by the defendant's son, not accidents. As discussed below, since this ground was not pleaded in the operative complaint, the court may not consider it.
A Criminal Acts Exclusions
Allstate argues that the underlying complaints allege criminal acts by the defendant and her son which fall within the criminal acts exclusions of the insurance policies. In the 1995-1996 policy, the exclusion states as follows: "We do not cover bodily injury or property damage resulting from: a) A criminal act or omission; or b) An act or omission which is criminal in nature and committed by an insured person who lacked the mental capacity to appreciate the criminal nature or wrongfulness of the act or omission or to conform his or her conduct to the requirements of the law or to form the necessary intent under the law. This exclusion applies regardless of whether the insured person is actually charged with, or convicted of, a crime." (Emphasis added.) See Exhibit F, Allstate's motion, p. 21. By endorsement, the policy also states: "We do not cover any bodily injury which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person." See Exhibit F, Allstate's motion, Connecticut Amendatory Endorsement, Form AU1870, p. 4.
A similar policy exclusion is found in the later policies, with the following language:
"We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, an insured person. This exclusion applies even if: a) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or b) such bodily injury or property damage is sustained by a different person than intended or reasonably expected. This exclusion applies regardless of whether or not such insured person is actually charged with or convicted of a crime." (Emphasis added.) See Exhibit G, Allstate's motion, p. 19.
Regardless of which policy version is applicable to the factual allegations of the underlying complaints, there is no coverage if the bodily injury complained of was intended by, or was reasonably to be expected to result from, the criminal act of an insured person. The policies define "insured person" as follows: "`Insured person' — means you and, if a resident of your household: a) any relative; b) any dependent person in your care." See Exhibit F, Allstate's motion, p. 3; Exhibit G, Allstate's motion, p. 2. The exclusions from coverage for bodily injury caused by criminal acts of an insured person are broad enough in scope to encompass those acts for which an insured person is neither arrested nor convicted, but which simply are violations of a criminal statute in Connecticut.
"`Bodily injury' — means physical harm to the body, including sickness or disease, and resulting death, except that bodily injury does not include: a) any venereal disease; b) Herpes; c) Acquired Immune Deficiency Syndrome (AIDS); d) AIDS Related Complex (ARC); e) Human Immunodeficiency Virus (HIV) . . . or any related or resulting symptom, effect, condition, disease or illness." Exhibit F, Allstate's motion, p. 3; Exhibit G, Allstate's motion, p. 3.
The following language is found in the underlying complaints. "At all times relevant to plaintiff's claims in this complaint, Joanne Linarte served as the director of the Facility, and was responsible for providing childcare directly to the children who attended the Facility. Joanne Linarte was also responsible for supervising, and did supervise, others who did come into contact with the children at the Facility and those who participated in providing childcare to the children who attended the Facility." See Exhibit A, Allstate's motion, ¶ 4. "At all times relevant to the plaintiff's claims in this complaint, Joanne Linarte acted within the scope of her duties as director of and provider of childcare services in the Facility." See Exhibit A, Allstate's motion, ¶ 5. "Joanne Linarte encouraged and allowed Francisco Linarte, Jr. and others to be alone with children at the Facility, including Jane and Jessica Doe, during the day, as well as during the evening and night when the children were sleeping." See Exhibit A, Allstate's motion, ¶ 8.
"Starting in or about 1996, when Jane Doe was approximately five-years-old, Francisco Linarte, Jr. first began sexually assaulting and battering Jane Doe in the Facility during the night. On numerous occasions from 1996 through 2002, when Jane Doe was five through eleven-years-old, Francisco Linarte, Jr. repeatedly sexually assaulted and battered Jane Doe in the Facility." See Exhibit A, Allstate's motion, ¶ 9. "During the years 1996 through 2002, Joanne Linarte and other agents, representatives and/or employees of the Facility were negligent in failing to take appropriate measures to ensure the safety and well-being of the children in the Facility, including Jane Doe." See Exhibit A, Allstate's motion, ¶ 11. "As a result of the negligence of Joanne Linarte and other agents, representatives and/or employees of the Facility, Jane Doe was sexually assaulted and battered in the Facility." See Exhibit A, Allstate's motion, ¶ 12. The alleged injuries suffered by Jane Doe are detailed in Exhibit A, Allstate's motion, first count, ¶ 12. Similar allegations are set forth concerning Jessica Doe. See Exhibit B, Allstate's motion.
"As a result, Jane Doe has suffered and will in the future suffer serious and permanent injuries, including but not limited to the following: a. Severe emotional distress; b. Depression; c. Embarrassment and humiliation; d. Difficulties in her relationships with her family; e. Difficulties in her relationships with her friends; f. Difficulties with issues of emotional and physical intimacy; g. Physical injury, including pain and bruising; h. Adverse impact on her interest and performance in work and school; i. Adverse impact on her behavioral condition; j. Aggravation of existing emotional and psychological difficulties; k. Other psychological injuries; and l. Post-traumatic stress disorder."
The underlying complaints allege that the defendant was negligent in her supervision of children who attended the daycare facility, other staff who came in contact with the children, and a member of her own family who came in contact with the children. The title which a plaintiff assigns to her cause of action in her complaint is not determinative. "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 cuases of action . . . For [i]f the title of the cause of action were controlling, the duty to defend would be manifest . . ." (Citation omitted; internal quotation marks omitted.) Covenant Insurance Co. v. Sloat, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 385786 (May 23, 2003, Levin, J.) ( 34 Conn.L.Rptr. 687).
The defendant's arrest record indicates that the defendant was charged with violations of General Statutes § 53-21(a)(1). See Exhibit E, Allstate's motion. General Statutes § 53-21(a)(1) states, in relevant part: "Any person who . . . willfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . ."
Mother Doe argues in her opposition to Allstate's motion for summary judgment that the allegations in the underlying complaints do not necessarily equate to a violation of § 53-21(a)(1) because the issue of whether the defendant's acts were "willful" or "unlawful" is not established therefrom. As previously stated, the policy language does not require that an insured person be charged or convicted under a criminal statute.
"[A]lthough it is clear that [t]he general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of [others] . . . we long have recognized that subdivision (1) of § 53-21[(a)] prohibits two different types of behavior: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child's] moral or physical welfare . . . and (2) acts directly perpetrated on the person of the [child] and injurious to his [or her] moral or physical well-being . . . Thus, the first part of § 53-21(1)[(a)] prohibits the creation of situations detrimental to a child's welfare, while the second part proscribes injurious acts directly perpetrated on the child." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gewily, 280 Conn. 660, 668, 911 A.2d 293 (2006).
"Under the `situation' portion of § 53-21(1), the state need not prove actual injury to the child. Instead, it must prove that the defendant wilfully created a situation that posed a risk to the child's health or morals . . . The situation portion of § 53-21(1) encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible." (Citations omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 148, 869 A.2d 192 (2005). "Under the situation portion of § 53-21(1), wilful means doing a forbidden act purposefully in violation of the law . . . It means that the defendant acted intentionally in the sense that [her] conduct was voluntary and not inadvertent . . . Therefore, wilful misconduct is intentional misconduct, which is conduct done purposefully and with knowledge of [its] likely consequences." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 161.
Mother Doe argues that, in interpreting § 53-21(a)(1)'s usage of "willful" and "unlawful," the two terms are to be treated together to mean doing a forbidden act purposefully in violation of the law. See Mother Doe's memorandum in opposition, p. 13. Following its decision in State v. Padua, supra, the Supreme Court further explained § 53-21 in State v. Sorabella, 277 Conn. 155, 172-73, 891 A.2d 897 (2006), where it stated, "[a]s this court previously has observed, that offense is a general intent crime . . . Thus, [i]t is not necessary, to support a conviction under § 53-21, that the [accused] be aware that his conduct is likely to impact a child younger than the age of sixteen years. Specific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a reckless disregard of the consequences . . . of that act is sufficient to [establish] a violation of the statute." (Citations omitted; internal quotation marks omitted.)
Thus, a violation of § 53-21(a)(1) occurs where "the defendant wilfully had caused or permitted [a child] to be placed in a situation that likely would be injurious to [the child's] health; the state [is] not required to prove that [the child], in fact, had been harmed or injured as a result of the defendant's conduct." State v. Gewily, supra, 280 Conn. 669. "[T]he creation of a prohibited situation is sufficient." State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632 (1984).
"[T]he interpretation of pleadings is always a question of law for the court." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2004). In the present case, the court is not being asked to resolve disputed facts on the issue of whether there were alleged actions which were criminal in nature. Rather, as stated above, the court is required to compare the factual allegations of the underlying complaints with the elements of a criminal statute to determine whether criminal acts allegedly occurred which would bar insurance coverage.
Here, in the underlying complaints, Mother Doe has alleged that the defendant engaged in willful conduct, coupled with a reckless disregard of the consequences. As discussed above, in each underlying complaint, she alleges that "Joanne Linarte encouraged and allowed Francisco Linarte, Jr. and others to be alone with children at the Facility, including Jane and Jessica Doe, during the day, as well as during the evening and night when the children were sleeping." See Exhibits A and B, Allstate's motion, ¶ 8.
In alleging that the defendant encouraged the creation of these situations, Mother Doe has alleged that the defendant engaged in willful, voluntary acts. "The word `voluntarily' means `of one's own free will.' Webster, Third New International Dictionary." Dubitzky v. Liquor Control Commission, 160 Conn. 120, 126-27, 273 A.2d 876 (1970). In the closest relevant definitions, Webster's Third New International Dictionary, page 747, defines "encourage" to mean "to spur on: STIMULATE, INCITE to give help or patronage to: FOSTER . . .: to call forth: PRODUCE, CREATE . . ." Black's Law Dictionary (Black's) (7th Ed. 2002), page 547, defines "encourage" to mean "[t]o instigate; to incite to action; to embolden; to help."
The Supreme Court has also looked to Black's for definitions. See Brown v. Soh, 280 Conn. 494, 505, 909 A.2d 43 (2006).
"Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
At the times she is alleged to have encouraged her son to be alone with the two children, including during the night, they were five to eleven years old and he was twelve to eighteen years old. See Exhibit C, Allstate's motion, which lists his date of birth as December 8, 1983. Conn. Agencies Regs. § 19a-87b-12(a), concerning night care, specifically proscribes such conduct. It states that a family day care "provider is responsible for meeting the following additional conditions if care extends into the child's normal sleeping hours: (1) . . . A separate bed, appropriate to the child's age, with individual, clean bedding, shall be provided. (2) . . . The bed shall be located in a quiet part of the facility, and for a child six (6) years of age or older, shall not be in a room shared with another child of the opposite sex nor with any adult." Conn. Agencies Regs. § 19a-87b-10(j)(1), concerning child protection, states that, "[t]he provider shall not engage in nor allow anyone else to engage in any sexual activity with the day care children."
As discussed above, in the underlying complaints, the alleged sexual assaults are alleged to have continued through 2002. According to Exhibit C, Allstate's motion, the defendant's son was arrested on November 5, 2002, just over one month before his nineteenth birthday.
As a provider, the defendant was responsible for being aware of governing regulations. See Conn. Agencies Regs. § 19a-87b-6 ("The . . . provider shall have a copy of the regulations at the facility and shall have read and understood the family day care standards set forth in these regulations").
Under the circumstances here, in view of the allegations in the underlying complaints, a fair and reasonable person could reach but one conclusion, that the underlying complaints allege reckless conduct by the defendant. See Dubay v. Irish, 207 Conn. 518, 534 n. 10, 542 A.2d 711 (1988). Encouraging her adolescent son to be alone with the two young girls, including at night, necessarily exposed them to a risk of harm, even if the defendant did not know that the alleged assaults were occurring. The allegations in the underlying complaints equate, at the least, to claims of the engaging in intentional acts, "coupled with a reckless disregard of the consequences . . . [, which] is sufficient to [establish] a violation of the statute." (Internal quotation marks omitted.) State v. Sorabella, supra, 277 Conn. 173 (construing General Statutes § 53-21).
Mother Doe also argues in her opposition to Allstate's motion for summary judgment that the defendant's plea of nolo contendere cannot be used against the defendant as evidence of criminal acts. See Groton v. United Steelworkers Of America, 254 Conn. 35, 51, 757 A.2d 501 (2000) (plea of nolo contendere and conviction based thereon not admissible in subsequent civil action to establish either admission of guilt or the fact of criminal conduct). The court has not considered the defendant's plea of nolo contendere in determining whether the criminal acts exclusions apply to the allegations in the underlying complaints. As discussed above, under the insurance policy language, allegations of uncharged criminal acts are enough to relieve the insurer from the responsibility to provide coverage.
In addition, Mother Doe argues that Allstate did not present any evidence to support that bodily injury was reasonably expected or in fact intended for purposes of invoking the criminal acts exclusions. She asserts that, while Connecticut has recognized a rebuttable presumption of intent to harm when an adult engages in sexual acts with a minor, it has not yet recognized a presumption in the case of a minor who sexually assaults another minor. See United Services Automobile Association v. Marburg, 46 Conn.App. 99, 104, 698 A.2d 914 (1997).
In view of the language in the policies, her argument concerning the necessity of proof of Francisco Linarte, Jr.'s intent is not persuasive. As stated above, under the 1995-1996 policy, the language provides, "We do not cover any bodily injury which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person." In the later policies, the exclusion provides, "We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, an insured person."
In interpreting similar exclusion language, the court in Allstate Insurance Co. v. Simansky, 45 Conn.Sup. 623, 625, 738 A.2d 231 (1998) [ 23 Conn. L. Rptr. 307], stated, "[t]he terms of the exclusion are clear and unambiguous. The exclusionary conditions are stated in the disjunctive. A distinction is made between (1) bodily injury and property damage which may reasonably be expected to result from an insured's intentional or criminal acts, and (2) such injuries or damage which are in fact intended by the insured. While the condition `or . . . which are in fact intended' requires the subjective or conscious desire of the insured to inflict harm, the condition `which may reasonably be expected' does not. To so require a subjective intent for this condition would render this clause `wholly redundant.' . . . Instead, the standard for this clause is objective, the only requirement being that the resulting harm is a foreseeable consequence of the intentional or (in the present case) criminal act." (Citation omitted.)
The court noted also that "[i]t is not necessary that the insured be criminally charged or convicted, or that he even be susceptible to being so charged or convicted. [Allstate Insurance Co. v.] Burrough [, 914 F.Sup. 308 (W.D.Ark. 1996)] and [Allstate Insurance Co. v.] Dillard [, 859 F.Sup. 1501, M.D.Ga. 1994)] involved criminal acts of insured minors, one (Dillard) being only thirteen years of age. The exclusion is triggered by the commission of a criminal act inflicting foreseeable harm, whether or not the insured is or legally can be charged or convicted therefor." Allstate Insurance Co. v. Simansky, supra, 45 Conn.Sup. 626.
Accordingly, proof of Francisco Linarte, Jr.'s subjective intent is immaterial. Mother Doe does not dispute, nor could she, that the sexual assaults which are alleged in the underlying complaints are criminal acts. These allegations clearly demonstrate that his alleged acts were criminal in nature, in violation of either General Statutes §§ 53a-70, 53a-73a or 53-21(a), all statutes under which the defendant's son was charged. See Exhibit C, Allstate's motion. Two children are alleged to have been sexually assaulted by the defendant's son and these actions are alleged to have harmed the two children. Such actions are considered criminal in nature, whether charged or not, under the terms of the insurance policies. No allegations are made as to the outcome of any criminal trial concerning the defendant's son, but no such allegations are necessary to make the criminal act exclusions applicable to the particular set of factual allegations found in the underlying complaints.
General Statutes § 53a-70 states, in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present, or (4) engages in sexual intercourse with another person and such other person is mentally incapacitated to the extent that such other person is unable to consent to such sexual intercourse."
General Statutes § 53a-73a states, in relevant part: "A person is guilty of sexual assault in the fourth degree when . . . [s]uch person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that such other person is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such other person's guardian or otherwise responsible for the general supervision of such other person's welfare . . ."
The exclusions in the policies at issue here are also stated in the disjunctive. They, too, are triggered by the commission of a criminal act inflicting forseeable harm. "[L]iability attaches only for reasonably foreseeable consequences." (Emphasis in original.) Lodge v. Arett Sales Corp., 246 Conn. 563, 577, 717 A.2d 215 (1998) (directing that judgment enter for the defendants). As noted above, the regulations for day care providers state that providers "shall not engage in nor allow anyone else to engage in any sexual activity with the day care children." Conn. Agencies Regs. § 19a-87b-10(j)(1).
From an objective standpoint, the "perfect vision of hindsight" is not required to make reasonably forseeable the kinds of consequences to Jane and Jessica Doe which are alleged in the underlying complaints. (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 578.
Thus, a comparison of the allegations in the underlying complaints to the terms of the insurance policies shows that there is no coverage. The provisions concerning criminal acts exclude coverage.
B Accident
In its second amended complaint, Allstate lists, in paragraph 15, the reasons why it contends that there is no coverage for the claims made in the underlying complaints. It did not plead that there is no coverage because those complaints do not allege an accident. In its motion, Allstate contends that the court should enter judgment on this ground. Mother Doe has, in her memorandum in opposition, opposed the court's consideration of this unpleaded theory.
In support, Allstate cites Desardouin v. State Farm Fire Casualty Co., Superior Court, judicial district of New London at Norwich, Docket No. 126905 (September 7, 2006, Hurley, J.T.R.). There, in a post-trial brief, the plaintiff raised an estoppel theory. The court declined to consider that issue; instead it stated that it would "only consider the evidence and testimony of the parties as it relates to the plaintiff's breach of contract claim as articulated in count one of the complaint." (Footnote omitted.) Id.
The court may not "render . . . judgment on the basis of a legal theory that the plaintiff never asserted in the complaint . . ." Pergament v. Green, 32 Conn.App. 644, 654, 630 A.2d 615, cert. denied, CT Page 7654 228 Conn. 903, 634 A.2d 296 (1993) (citing Lundberg v. Kovacs, 172 Conn. 229, 233, 374 A.2d 201 (1977) ("setting aside the judgment and ordering a new trial where variance between pleading and proof was neither immaterial, nor corrected by amendment or waived"). (Emphasis omitted.) Pergament v. Green, supra. Here, the variance is material, it was not corrected by amendment, and Mother Doe has not waived her objection to the court's consideration of the issue.
Under these circumstances, the court may not consider Allstate's claim, which was raised in its motion, but not in its second amended complaint, that there is no coverage because the underlying complaints do not allege an accident.
CONCLUSION
There is no genuine dispute as to a material fact. Allstate has shown that it is entitled to judgment as a matter of law. Accordingly, Allstate's motion for summary judgment is granted.
Allstate has no duty to provide a legal defense to or to indemnify Joanne Linarte because there is no coverage under the insurance policies for the claims made in the underlying complaints.
It is so ordered.