Opinion
No. X07CV000079440S
November 10, 2003
MEMORANDUM OF DECISION
The defendant, Penn-America Insurance Company, moves for summary judgment.
The plaintiff, Telisha Jones, sues the defendant claiming damages arising from the failure of the defendant to defend and indemnify LTJ Corporation (LTJ) with respect to two lawsuits brought by the plaintiff against LTJ. The gravamen of the underlying action against LTJ is that employees of LTJ served liquor to Chaquita Hinton who subsequently drove a motor vehicle under the influence, collided with a vehicle in which the plaintiff was a passenger, and severely injured the plaintiff.
The basis for this motion is that the insurance policy issued by the defendant to LTJ expressly excludes coverage for liquor-related liability.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The following facts are undisputed. LTJ owned and operated a business establishment which served alcoholic beverages to its patrons. In the first action by the plaintiff against LTJ, Jones v. LTJ Corporation, Superior Court, New Britain J.D., d.n. CV 95-555645, she alleged that employees of LTJ negligently, recklessly, or in violation of statute furnished or served liquor to Hinton, who was underage and under the influence at the time of service. Hinton, while in an intoxicated condition, then drove the vehicle which crashed into and grievously injured the plaintiff.
In the second action, Jones v. LTJ Corporation, Superior Court, New Britain J.D., d.n. CV 96-565953, the plaintiff alleges that employees of LTJ negligently served liquor to Hinton and that LTJ negligently trained and supervised these employees. That suit further alleges that, as a consequence of serving liquor to Hinton, Hinton drove while under the influence and seriously harmed the plaintiff.
LTJ assigned to the plaintiff whatever rights it may have to recover against the defendant, its insurer, for the defendant's failure to defend and indemnify in the two underlying actions. At the time of the accident LTJ had liquor liability insurance coverage under a policy issued to it by another insurance company which is not a party to the present action. That insurer defended LTJ in the suits and paid the plaintiff the maximum amount under that separate policy. A stipulated judgment entered against LTJ for $20,000,000 as to the antecedent litigation.
The defendant and LTJ entered into an insurance contract which provided commercial general liability coverage for LTJ during the relevant time period. Section I.2.C of the coverage provisions of that contract states that excluded from coverage is:
"Bodily injury" or "property damage" for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
I
The plaintiff first argues that, despite the clear language of this exclusion provision, coverage is still available under other general liability provisions which protect against risks based on premises liability or product liability claims. The court rejects this argument.
The duty of an insurer to defend an insured "necessarily depends on whether the claim falls within the policy coverage." Schilberg Integrated Metals v. Continental Casualty, 263 Conn. 245, 256 (2003). The issue of whether the underlying complaints of the plaintiff against LTJ state causes of action which, on their face, appear to be within the terms of policy coverage is a matter of law. Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184 (2003).
The court rules, as a matter of law, that the explicit and specific language of the liquor liability exclusion recited above bars coverage under this commercial general liability policy. In order for LTJ to be found liable to the plaintiff for injuries arising from Hinton's inebriation, under any theory alleged in the two complaints, the plaintiff necessarily would have to allege and prove that employees of LTJ proximately caused or contributed to Hinton's intoxicated state by furnishing her with liquor. The clear language of the liquor liability exclusion denies coverage for precisely such acts, whether these acts constitute violations of statutes, negligence or reckless conduct.
II
The plaintiff also contends that the liquor liability exclusion violates public policy and is, therefore, void. The plaintiff can point to no Connecticut case which has ever held that liquor liability exclusions from commercial general liability insurance contracts contravene any public policy. Nor does any statute or regulation mandate the inclusion of such coverage in this type of insurance policy.
The plaintiff appears to argue that the exclusion of liquor liability coverage somehow fosters drunk driving. The court fails to discern how that can be true. If anything, the fact that an insurer declines to provide such coverage under routine general liability policies would seem to discourage businesses from serving liquor to patrons in a cavalier fashion. Such enterprises can do just what LTJ did in this case and procure insurance specifically aimed at liquor liability risk.
Even if such coverage were utterly unavailable, it is beyond the responsibility of a court to mandate such coverage in commercial general liability insurance contracts. The policy decision warranting such mandatory coverage must come from the legislature or regulatory authority.
For these reasons, the motion for summary judgment is granted.