Opinion
No. CV 03 0070715
February 28, 2006
MEMORANDUM OF DECISION
BACKGROUND
On November 4, 2003, the plaintiff, National Grange Mutual Insurance Co. (National Grange), filed an amended complaint seeking a declaratory judgment as to its obligation to defend and indemnify the defendant, Reece Caraker, against claims made against him by Donna and Michael Emmelmann in a separate personal injury action. The original action is between the Emmelmanns, the defendant, and the defendant's employer.
The action pending in the Superior Court at Hartford is Emmelmann v. Royal Sun Alliance Personal Ins. Co., Docket No. CV 03 0826414.
In the instant matter, the defendant Caraker filed an answer (#108) to the plaintiff's amended complaint (#103) on August 4, 2004. In his answer, Caraker admits to being hired to remove floor tiles from the Emmelmann home, admits to being a defendant in the underlying suit, admits to the existence of the insurance policy and to the language of the absolute pollution exclusion, paragraph "f." The defendant Caraker claims insufficient knowledge and belief as to whether or not his activities in removing the floor tiles caused asbestos to be released into the air which in turn contaminated the home of the defendants, Donna and Michael Emmelmann. This is, in effect, a denial of the allegation under our rules of pleading.
The plaintiff filed a certificate of closed pleadings (#110) and claimed the case to the non-jury trial list on August 17, 2004. Unfortunately, the pleadings were not closed as the defendants Emmelmann had not yet filed a responsive pleading to the plaintiff's amended complaint (#103). It was clearly improper procedurally for the plaintiff to have claimed the case for trial until the pleadings were closed as to both defendants. Exhibit "A" from this pleading is the fifty-two count complaint from the underlying case. This court's review of the pleading reveals that counts I, IV, VI, XVII, XVIII, XX, XXII and XXIII, on behalf of Donna Emmelmann, are brought against Reece Caraker. Those counts allege several theories including, but not limited to, negligence and carelessness, inherently dangerous work activities, breach of contract/intended beneficiary, reckless and intentional acts, and reckless disregard of human safety. Michael Emmelmann makes similar allegations in counts twenty-six through fifty.
The plaintiffs, in their prayer for relief, seek money damages, costs, punitive damages and attorneys fees, as well as any other relief which may appertain.
No responsive pleading from the underlying action was submitted nor were any affidavits, requests for admission, certified copies of depositions, nor stipulations of fact filed at trial or as submissions to the earlier motions for summary judgment.
It would appear, at first blush, that some of the counts of the underlying complaint, even were the plaintiff herein be willing to concede the inapplicability of paragraph "f," would clearly not be covered by the insurance policy. To wit: reckless and intentional conduct, reckless disregard of human safety, contractual claims, etc.
The court's analysis of the coverage issues involved in this case is, consequently, hamstrung due to the lack of factual stipulation, multiple theories of recovery in the underlying action, and a failure on the part of the parties involved to close the pleadings.
The Emmelmanns allege the following in the underlying complaint. In September 2001, the Emmelmanns hired the defendant's company to perform repairs to their kitchen. During the course of the repairs, the defendant and his employees removed the kitchen floor by sanding and grinding the linoleum, releasing a powder that contained allegedly unsafe levels of asbestos into the air of the Emmelmann's home. The Emmelmanns claim to have suffered injuries as a result of coming into contact with the asbestos in the powder. The Emmelmanns seek damages for the negligence of the defendants.
The plaintiff in the present declaratory judgment action alleges the following in its complaint. The plaintiff issued an insurance policy to the defendant with effective coverage dates of August 15, 2001 to August 15, 2002. The policy (Exhibit #1) contains a pollution exclusion clause.
On January 23, 2004, the plaintiff filed a motion for summary judgment (#104), supported by a memorandum of law (#104.50). The plaintiff submitted a copy of the insurance policy, the affidavit of Roger Hamilton, an employee of National Grange, and a copy of the amended complaint from the underlying litigation in support of its motion. On May 3, 2004, the plaintiff filed a reply to the defendant's memorandum in opposition (#105).
DISCUSSION
On August 6, 2004, the court, Foley J., denied the plaintiff's motion for summary judgment (#109). The court found that the pollution exclusion clause was ambiguous as to whether asbestos released in a private residence constitutes a pollutant. The court further found that the language used in the policy to describe the manner of pollution was also ambiguous with respect to whether the exclusion clause bars coverage with regard to indoor, as opposed to outdoor or environmental, exposures from pollutants.
Thereafter, on January 28, 2005, the defendant Reece Caraker moved for summary judgment (#112). On March 14, 2005, the plaintiff filed a memorandum of law in opposition of the defendant's motion (#114). This was followed by a motion for summary judgment filed by the defendants Emmelmann (#115), incorporating the arguments of the codefendants. The court, Riley, J., denied the defendant's motions (#116 and #117) on May 18, 2005.
The matter was tried to the court, Riley, J., on October 18, 2005 with final submissions received from the plaintiff dated November 1, 2005. It is the plaintiff's position that the policy (Exhibit #1), a Contractors Policy, which provides for coverage for business liability, has that same coverage deleted, based upon the facts from the underlying case by § B Exclusions, 1f. Pollution. The plaintiff claims that this "absolute pollution" exclusion removes coverage from the defendant Caraker as a result of the claims brought against him as a result of his activities in sanding the linoleum floor in the defendant Emmelmann's home at 16 Campbell Avenue in Vernon, Connecticut. The defendants continue to maintain that the absolute pollution exclusion does not remove coverage for the activities of Caraker under the facts as submitted to the court and that the losses claimed in the underlying lawsuit are, in fact, covered by the Contractors Liability policy maintained with the plaintiff.
I. Relevant Case Law A. The Policy Exclusion
"Under our law, the 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 . . . [plaintiff] expected to receive and what the defendant 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." (Citations omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 769-70, 653 A.2d 122 (1995). The underlying facts of Heyman involved a fuel oil spill in a waterway. Id., 759.
"[I]f the words of a policy are susceptible to more than one reasonable interpretation, they are ambiguous . . . and will be construed in favor of the insured." (Internal quotation marks omitted.) Insurance Co. of Illinois v. Stringfield, 292 Ill.App.3d 471, 474, 685 N.E.2d 980 (1997). Before applying a rule that construes ambiguity against the insurer, however, the court must find an ambiguity. Highwoods Properties, Inc. v. Executive Risk Indemnity, Inc., 407 F.3d 917, 923 (8th Cir. 2005). "An ambiguity exists only if the language of the policy is fairly and reasonably susceptible to either of the constructions for which the parties contend." (Internal quotation marks omitted.) Id.
In Danbury Ins. Co. v. Novella, 45 Conn.Sup. 551, 727 A.2d 279 (1998) ( 23 Conn. L. Rptr. 387), the superior court expanded upon the Heyman analysis in applying it to lead paint exposure that occurred indoors and outdoors at a residence. The Novella court observed that several other courts had found ambiguity in the pollution exclusion clause terms "discharge," "dispersal," "release," and "escape," because they are terms of art in environmental law that are used to implicate industrial or hazardous waste pollution as opposed to indoor pollution. Id., 557-58. The Novella court stated that while Heyman declined to adopt an environmental reading of the same language, it was probably unnecessary for the court to analyze the terms because a fuel oil spill in a waterway presented "a classic case of environmental pollution." Id. The court in Novella held that the exclusion clause was "ambiguous to the extent that a reasonable insured would interpret it to exclude coverage for claims arising out of factual circumstances more analogous to classic environmental pollution, but not for claims of personal injury allegedly sustained as a result of the type of paint covering the surfaces of rented premises." Id., 559. Novella therefore highlighted the importance of considering the polluting substance and the context in which the alleged pollution occurs.
The court in Novella devised a threshold inquiry to analyze the problem of non-classic environmental pollutants. "To put it more simply, the first question is whether the only reasonable interpretation of the clause would categorize [linoleum] itself, on the interior and exterior surfaces of a residence, as a pollutant. The second question is whether the exposure as alleged in the underlying complaint constitutes a discharge, dispersal, release or escape under the terms of the policy. Both questions must be answered affirmatively for the pollution exclusion clause to apply." Id., 554.
The Novella court then held that lead paint on the interior and exterior surfaces of leased premises was not a "pollutant" within the meaning of the absolute pollution exclusion. The court, citing to a Massachusetts Supreme Court case, Atlantic Mutual Ins. Co. v. McFadden, 413 Mass. 90, 92, 595 N.E.2d 762 (1992), (as well as other cases cited therein), stated that "in determining that lead paint on residential surfaces is not a pollutant, the court adopted an `environmental' reading of the term `pollutant' in the pollution exclusion clause reasoning that the terms used in the pollution exclusion, such as `discharge,' `release,' and `escape,' are terms of art in environmental law which generally are used with reference to damage or injury caused by improper disposal or containment of hazardous waste." Danbury Ins. Co. v. Novella, supra, 45 Conn.Sup. 557.
"The clause must be deemed ambiguous because it is equally reasonable to conclude that lead paint may or may not be an irritant or contaminant, and therefore may or may not be a pollutant, within the meaning of the clause. Furthermore, the clause may also be deemed ambiguous to the extent that a reasonable insured would interpret it to exclude coverage for claims arising out of factual circumstances more analogous to classic environmental pollution, but not for claims of personal injury allegedly sustained as a result of the type of paint covering the surfaces of rented premises. Accordingly, under our law, the interpretation of the exclusion clause which will sustain the claim of injury and cover the loss must be adopted." Id., 558-59. The Novella court went on to find that lead paint did not come within the dictionary definition of "waste," nor was it defined in the policy.
In Minerva Enterprises, Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403 (1993), the Supreme Court of Arkansas, in considering an appeal from a granting of summary judgment on behalf of an insurer under an absolute pollution exclusion, reversed the trial court. Interpreting the same policy language as that at issue in the present case, the Minerva court found that "waste" must be considered in the context of the entire list of examples of "pollutants" in the policy definition. Id., 134. Within that context, the list was intended to exclude industrial wastes, not common household wastes. Id., 130. "The ordinary reader of the exclusion would reasonably conclude that it would not limit coverage for respondents' unexpected damage due to installation of building material in a home, but would exclude pervasive environmental pollution problems such as hazardous waste dumping." (Internal quotation marks omitted.) Id., 132, citing to Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn.App. 1988) (which held that the pollution exclusion did not apply to damage to a home caused by the release of formaldehyde emitted from deteriorating insulation).
In the present context, the "waste" was the dust created by the sanding of the floors, some of which was emitted into the interior environment of the house and some of which was swept up and disposed of as trash by the defendant. It would not appear that even if the asbestos dust is to be considered "waste," it was never intended to be "recycled, reconditioned or reclaimed" by Caraker as set forth in the exclusion.
The Connecticut courts have not addressed pollution exclusion clauses as applied to asbestos exposure in a private residence. In light of Heyman and Novella, the dispositive issues in this case are: (1) whether the policy language unambiguously defines the term pollutant; and (2) whether the policy language describing the manner of pollution unambiguously bars coverage of indoor exposure to asbestos dust as occurred here.
B. Is Asbestos a Pollutant, Irritant, Contaminant or Waste?
Pollutant is defined in the exclusion clause at issue as "any solid, liquid, gaseous or thermal irritant or contaminant." In Heyman, our Supreme Court has found the term "contaminant" to mean "something that contaminates;" and "contaminate" to mean "to soil, stain, corrupt, or infect by contact or association or to render unfit for use by the introduction of unwholesome or undesirable elements." (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 772. Similarly, the court found "pollutant" to mean "something that pollutes . . . a polluting substance, medium, or agent" and found "pollute" to mean "to . . . impair the purity of . . . to make physically impure or unclean." Id.
See plaintiff's memorandum of law in support of its motion for summary judgment, motion #104.50, Exhibit 1, National Grange Insurance Policy, Paragraph B(1)(f)(2)(b).
The exclusion clause in the present case also defines pollutants as "waste," and defines waste as "materials to be recycled, reconditioned or reclaimed." "Webster's Third New International Dictionary defines `waste' as `damaged, defective, or superfluous material produced during or left over from a manufacturing process or industrial operation' or `refuse from places of human or animal habitation such as . . . garbage, rubbish.'" Danbury Ins. Co. v. Novella, supra, 45 Conn.Sup. 559 n. 9. Based on those definitions alone, asbestos does not clearly fall under the category of waste. In § 22a-209-1 of the Connecticut Regulations, asbestos is categorized as a "special waste." The purpose of this provision, however, is to provide public waste disposal guidelines. In the context of pollution exclusion clauses, the statute does not unambiguously support the idea that waste refers to the release of asbestos fibers in a private home.
See footnote 2.
Nowhere in the policy is the term "asbestos" mentioned. It is not included within the definition of "pollutants" and there is a split of authority as to whether it should be construed as an "irritant," "pollutant" or "contaminant" within the broader language of the pollution exclusion. No Connecticut cases have been cited which address the pollution exclusion as applied to asbestos exposure occurring within a private residence in a manner similar to that which occurred here. Several other jurisdictions have addressed the issue. Some have found asbestos to be a pollutant.
In Selm v. American States Ins. Co., Court of Appeals of Ohio, Appeal No. C-010057 (1st Dist. September 21, 2001), under similar facts, the court held that the absolute pollution exclusion applied, and that coverage was excluded, although the court did not reach the broader question as to whether the release solely within the confines of a private home was sufficient to trigger the exclusion. In American States Ins. Co. v. Zippro Construction Co., 216 Ga.App. 499, 455 S.E.2d 133 (1995), a similar result occurred, again involving the release of asbestos fibers from flooring thereby contaminating the house.
In Yale University v. Cigna Ins. Co., 224 F.Sup.2d 402 (Conn. 2002), the U.S. District Court applied the same definition of pollutant to asbestos on the interior of a structure. The court stated, "there can be little doubt that any asbestos contamination in Yale's buildings rendered them unfit for use by the introduction of unwholesome or undesirable elements and/or physically impure or unclean, and therefore that the contaminating asbestos would be a contaminant or pollutant under the policies' Contaminant Exclusion." (Internal quotation marks omitted.) Id., 422. Conversely, in Maryland Casualty Co. v. W.R. Grace Co., 794 F.Sup. 1206, 1229 (S.D.N.Y. 1991), rev'd on other grounds, 23 F.3d 617 (2nd Cir. 1993), the court stated, "[o]ne would not usually associate asbestos with the substances listed in the exclusion, namely smoke, fumes or waste . . . Those substances bear a closer relation to industrial pollution, the usual subject of the ordinary pollution exclusion." (Citations omitted.)
In Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 74 Ohio Misc.2d. 144, 152, 660 N.E.2d 746 (1993), the court found that although some jurisdictions had previously classified asbestos as an irritant, contaminant or pollutant, those cases were "supported by neither case law nor a compelling rationale." The court held that as a matter of law, asbestos could not be categorized as an irritant, contaminant or pollutant. Id.
Those courts which have found that asbestos released into the interior of a home is a pollutant decline to discuss the environmental aspect of the history behind the absolute pollution exclusion. In American States Ins. Co. v. Zippro Construction Co., supra, 216 Ga.App. 501, the court simply stated, "[t]here is little question that asbestos constitutes a pollutant as unambiguously defined in the exclusion." In Board of Regents v. Royal Ins. Co., 517 N.W.2d 888, 892 (Minn. 1994), the court stated, "[w]e would be doing a disservice to the English language if we were to say that asbestos fibers, which are a health hazard because of their irritant effects on the human body, were not an irritant." This court is inclined to agree that the existing case law provides little justification for arriving at the conclusion that asbestos, when inadvertently released indoors, constitutes the kind of air pollution contemplated by the pollution exclusion clauses.
In the present case, one could reasonably conclude that asbestos when released into the home is an "irritant," "contaminant" or "waste" and therefore constitutes a "pollutant." One could also reasonably conclude that asbestos when released into a home does not meet the definition of an "irritant," "contaminant" or "waste" contemplated by the policy and is therefore not a "pollutant." The exclusion clause is therefore ambiguous with respect to whether asbestos released as described in the complaint can be properly classified as a pollutant.
C. Language Describing the Manner of Pollution
The pollution exclusion clause at issue also states that insurance coverage is excluded for damages arising from the "discharge, dispersal, seepage, migration, release or escape of pollutants." Other jurisdictions have analyzed identical language in pollution exclusion clauses and have determined that it creates ambiguity with respect to whether the clauses apply to indoor pollution. In Continental Casualty Co. v. Rapid-American Corp., 80 N.Y.2d 640, 653, 609 N.E.2d 506, 593 N.Y.S.2d 640 (1993), the court initially concluded that asbestos, when released indoors, constituted a pollutant of the type contemplated by the clause. The court then considered the language referencing the manner of pollution and stated, "[t]he terms used in the exclusion to describe the method of pollution — such as `discharge' and `dispersal' — are terms of art in environmental law used with reference to damage or injury caused by disposal or containment of hazardous waste." Id., 654. The court held the exclusion clause to be ambiguous. Id., 655. In Miano v. Hehn, 206 App.Div.2d 957, 959, 614 N.Y.S.2d 829, 830 (1994), the court concluded that identical terminology was "ambiguous concerning whether the environment encompasses the air within a residential home through which asbestos fibers pass."
Conversely, other courts have concluded that the same terminology is unambiguous. The majority of these opinions, however, halt their analysis upon determining that asbestos constitutes a pollutant. In Yale University v. Cigna Ins. Co., supra, 224 F.Sup.2d 422-23, the court concluded that asbestos released inside of a building was a pollutant within the meaning of the policy, but explicitly declined to discuss the terminology referencing the method of pollution that other courts have found to be ambiguous. In Selm v. American States Ins. Co., supra, Appeal No. C-010057, and American States Ins. Co. v. Zippro Construction Co., supra, 216 Ga.App. 499, the courts restricted their analysis to whether asbestos constituted a pollutant. Upon finding that it did, neither court considered the terms that referenced the manner of pollution, which would be their greater purpose. This court is inclined to agree with the more thoughtful decisions that dedicated additional discussion to the terminology describing the manner of pollution and found it to be ambiguous.
In the present case, one could conclude that the terms "discharge, dispersal, seepage, migration, release or escape" apply to outdoor environmental pollution only. One could also argue that the terms also apply to pollution that occurs indoors. The language referencing the manner in which the pollutant is released is therefore ambiguous with respect to whether the exclusion clause bars coverage for indoor exposure to asbestos.
In Nav-Its, Inc. v. Selective Ins. Co. of America, 183 N.J. 110, 869 A.2d 929 (2005), the New Jersey Supreme Court held that the pollution exclusion clause should be limited to traditional environmental pollution. The court held that the absolute pollution exclusion did not bar coverage for personal injuries arising from exposure to toxic fumes emanating from a floor coating/sealant operation performed by the insured. The court reviewed the history of the pollution exclusion clause within the context of the comprehensive liability policy, finding that its demonstrative purpose was to have a broad exclusion for traditional environmentally-related damages. It held that the terms "discharge," "dispersal," "release," or "escape," as used in the policy, are environmental terms of art reflecting the exclusion's historical objective — avoidance of liability for environmental catastrophe related to intentional industrial pollution. Id., 124. "The decisions of the highest courts in California, Illinois, Massachusetts, Ohio, New York and Washington are consistent with our decision to limit the pollution exclusion to those hazards traditionally associated with environmentally related claims." Id. The New Jersey Supreme Court rejected Selective's interpretation of the absolute pollution exclusion as "overly broad, unfair, and contrary to the objectively reasonable expectations of the New Jersey and other state regulatory authorities that were presented with an opportunity to disapprove the clause." Id., 123-24.
As set forth in Island Associates, Inc. v. ERIC Group, Inc., 894 F.Sup. 200, 203 (W.D.Pa. 1995), citing Pipefitters Welfare Education Fund. v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7th Cir. 1992) "a common sense approach must be invoked when determining the scope of pollution exclusion clauses." (Internal quotation marks omitted.) "The terms `irritant' and `contaminant,' when viewed in isolation, are virtually boundless, for `there is no substance or chemical in existence that would not irritate or damage some person or property." Id. "[R]eading the clause broadly would bar coverage for bodily injuries suffered by one who slips and falls on the spilled contents of a bottle of Drano, and for bodily injury caused by an allergic reaction to chlorine in a public pool. Although Drano and chlorine are both irritants or contaminants . . . one would not ordinarily characterize these events as pollution." Id.
The court went on to state, "we conclude that the exclusion, if read broadly, would be `virtually boundless' and thus, would impact the scope of coverage far beyond the reasonable expectations of the insured . . . [I]n our view, an insurer that wishes to exclude `everyday activities gone slightly awry' from coverage cannot rely on a broad reading of a pollution exclusion clause." (Citation omitted.) Id.
"Many courts that have considered the purpose of the standard absolute pollution exclusion clause have concluded that the clause is intended to preclude coverage for environmental pollution, not for `all contact with substances that can be classified as pollutants.'" Keggi v. Northbrook Property and Casualty Ins. Co., 199 Ariz. 43, 48, 13 P.3d 785 (App. 2000). "Pollution exclusion clauses are intended to exclude coverage for active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time." (Internal quotation marks omitted.) Id.
D. Obligations of the Insurance Carrier "It 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 . . . [T]he oft-stated principle [is] that the duty to defend is broader than the duty to indemnify." QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 352, 773 A.2d 906 (2001) (affirming the granting of a motion for summary judgment). "Indeed, [if] an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . [In deciding the issue of coverage], [t]he [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . The determinative question is in 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 . . ." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). As a rule, this court construes broad policy language in favor of imposing a duty to defend on the insurer. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 466, 876 A.2d 1139 (2005). "Whether an insurer has a duty to defend depends on a comparison of the allegations of the underlying complaint to the relevant policy provisions. When a declaratory judgment action is brought to determine [an] insurer's duty to defend a court must look solely to the complaint in the underlying action to determine whether the allegations show that the claim falls within or potentially within the coverage of the policy." American States Ins. Co. v. Allstate Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 97 0567571 (November 13, 2003, Wagner J.T.R.) ( 36 Conn. L. Rptr. 58)."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 ommitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).
CONCLUSION
The court finds that the words and phrases contained in the policy exclusion are susceptible to more than one reasonable interpretation. They are, therefore, ambiguous and should be construed in favor of the insured, Reece Caraker. Such a result is dictated by the reasonable interpretation of the ordinary, plain and popular meaning of the terms and language contained in the policy when viewed from the perspective of the insured.
National Grange has acknowledged its duty to defend its insured in the underlying action and is presently doing so under a reservation of rights. The purpose of this action was to seek a judicial determination as to its duty to both defend and indemnify Caraker. Unfortunately, the court cannot do so at this time, except in the abstract. The facts, as set forth in the underlying complaint, must be developed at trial before the court may make a determination as to National Grange's duty to indemnify under the policy for the constellation of theories of recovery being asserted against Caraker. It clearly has a duty to defend.