Opinion
No. CV-03-0080632
November 15, 2007
MEMORANDUM OF DECISION ON MOTION IN LIMINE RE LIABILITY INSURANCE
In this personal injury action the plaintiff, Robert Ancefsky, claims that he sustained injuries working when he fell off of a concrete slab while working at a construction site. He has sued the defendant, OG Industries, Inc., for negligence, alleging that "[t]he defendant had a duty to maintain the property so that the workers on the premises were kept in a safe condition for the plaintiff and others to work." The plaintiff moves in limine to permit evidence that the defendant "insured its activities on the subject construction site through liability insurance from various third party insurers." The defendant objects.
It is an established common-law evidentiary principle that all evidence is admissible unless there is a rule that expressly excludes it. Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998 (1895). Here, there is such a rule. Section 4-10 of the Connecticut Code of Evidence provides: (a) General rule. "Evidence that a person was or was not insured against liability is inadmissible upon the issue of whether the person acted negligently or otherwise wrongfully."
Section 4-10, however, contains an exception to the general rule. Subsection (b) of § 4-10 states: "This section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."
The plaintiff claims that OG's insurance policy are offered for the purpose of showing that OG had control over the construction site and is relevant for that purpose. OG, which was not the general contractor of the project, argues that the policy insured only OG's operations at the site and does not insure the property. OG argues that its liability insurance policy is not admissible under § 4-10(b) of the Code of Evidence.
It is unclear whether there are more than one policy. OG has represented that it is self-insured up to a certain limit.
The plaintiff bears the burden of proving that its proffer comes within the exception of the Code on which it relies. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984) ("those who claim the benefit of an exception under a statute have the burden of proving that they come within the limited class for whose benefit it was established").
The rules of statutory construction apply to the Connecticut Code of Evidence. See Harlan v. Norwalk Anesthesiology, P.C., 75 Conn.App. 600, 606, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).
Paragraphs four and five of the plaintiff's revised complaint allege as follows:
4. The Defendant had a duty to maintain the property so that the workers on the premises were kept in a safe condition for the plaintiff and others to work.
5. The Defendant, OG Industries, breached its duties and was negligent in one or more of the following fashions:
a. in that it failed to maintain the premises under its control and supervision in a safe manner;
b. In that it failed to do so by failing to provide railings or other safety measures near the concrete slabs;
c. In that it failed to have railings or other safety measures near the concrete slabs creating an unsafe condition;
d. In that it failed to inspect the premises to insure that the area was safe for individuals to work on;
e. In that it failed to remedy or remove an unsafe condition at the subject premises;
f. In that it failed to warn the Plaintiff of the unsafe condition of the concrete slabs.
Ordinarily, though not inexorably, liability for an injury due to defective premises depends on possession and control. Farlow v. Andrews Corporation, 154 Conn. 220, 225, 224 A.2d 546 (1966). Evidence tending to make the existence of such fact "more probable or less probable than it would be without the evidence" would be relevant; Code of Evidence § 4-1; and admissible; Code of Evidence § 4-2; unless outweighed by the danger of unfair prejudice or other prudential considerations. Code of Evidence § 4-3.
An action for injuries due to defective premises may also lie in contract, where the party injured was a party to the contract; Dean v. Hershowitz, 119 Conn. 398, 406, 117 A. 262 (1935); "in privity with a party, or a third-party beneficiary of the contract." Ligouri v. Quintans, Superior Court, Judicial District of Fairfield, No. 318583 (June 13, 1996) (17 Conn. L. Rptr. 218).
The part of the exception to § 4-10 of the Code of Evidence on which the plaintiff relies "allows proof of a legal relationship with the property involved in the lawsuit, such as agency, ownership, or control." (Emphasis added.) Tait's Handbook of Connecticut Evidence (3rd Ed.) § 4.28.3. However, the plaintiff does not point to anything in the insurance policy — a copy of which he does not have — that evidences control of any property or instrumentality causing the plaintiff's injury. Compare Perkins v. Rice, 187 Mass. 28, 30, 72 N.E. 323 (1904) ("it properly could be argued, that the defendants would not have deemed it prudent to secure indemnity insurance on an elevator not within their control, or for the careless management or defective condition of which they could not be held responsible."). Rather, as he says in his motion, "the plaintiff desires to introduce evidence that the defendant insured its activities on the subject construction site through liability insurance from various third party insurers." That OG insured its activities at the construction site does not make it more probable that it controlled property there or otherwise had a duty to the plaintiff to maintain property in a safe condition, anymore than the insurance policy on the building in Auster v. Norwalk United Methodist Church, 94 Conn.App. 617, 894 A.2d 329, cert. granted 278 Conn. 915, 899 A.2d 620 (2006), was evidence that the building owner was in control of a dog owned by an individual who lived in an apartment in a building and was solely responsible for the care of the dog. Therefore, the defendant's liability insurance policy is irrelevant.
This seems undisputed. OG admits that it was the construction manager assigned to the project, the construction and renovation of Woodland Regional High School.
This court is bound by a decision of the Appellate Court even though it is pending on appeal before the Supreme Court. See State v. Sailor, 33 Conn.App. 409, 4114-15 n. 10, 635 A.2d 1237, cert. denied, 229 Conn. 911, 642 A.2d 1208 (1994); Somers Mill Associates v. Fuss O'Neill, Superior Court, Judicial District of New Haven, No. 386670 (Nov. 13, 1998); Bedard v. DCI Construction, Superior Court, Judicial District of New Haven, No. 401955 (April 14, 1998).
The motion in limine is denied.
CT Page 19597