Opinion
No. DBD CV 06 4005239
April 13, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #110
The plaintiff has filed a complaint against the defendant alleging a wrongful denial of insurance coverage based upon its failure to defend James Gustavson, Eric P. Gustavson and Pamela Gustavson ("insureds") relative to an award for damages in favor of the plaintiff against the insureds. On August 8, 2001, while riding as a passenger, the plaintiff suffered injuries when thrown from an all terrain vehicle which was owned and/or operated by the insureds. Following an arbitration hearing on the plaintiff's claim against the insureds, the plaintiff was awarded $287,290.31. That award was made a judgment of the court on December 20, 2005 in the matter of Pister v. Gustavson. Thereafter, the insureds subrogated their rights against the defendant to the plaintiff pursuant to General Statutes § 38a-321 through which the plaintiff has brought the instant action. The defendant has filed a motion for summary judgment (#110) on the ground that it was not obligated to defend or indemnify the insureds for any claim of damages stemming from the accident as its insurance policy excluded coverage for bodily injury "arising out of the ownership, maintenance or use of a motor vehicle owned or operated by, or rented or loaned to an insured." It further argues that there was no obligation to defend or indemnify as the insureds failed to comply with their duty to cooperate with the defendant in that they failed to forward to it copies of documents related to the accident. The plaintiff has filed an objection to the motion (#111) and submitted documentation in support thereof arguing that there remains a genuine issue of material fact between the parties as to the issue of coverage. The matter was heard by the court at short calendar on January 16, 2007.
See Pister v. Gustavson, Superior Court, judicial district of Danbury, Docket No. CV 03 0349917 (Mintz, J.).
I FACTS AND PROCEDURAL HISTORY
In order to address the motion presently before the court it is necessary to review the procedural history of the Pister v. Gustavson matter and the factual allegations therein. In her initial action, the plaintiff filed a five-count complaint dated July 31, 2003. The first count alleged negligence against James Gustavson; the second count alleged negligent entrustment as to Eric and Pamela Gustavson; the third count alleged damages pursuant to General Statutes § 14-388; the fourth count against C.A.R.D. Foundation, LLC is not pertinent to this action; and the fifth count alleged liability on the part of Eric and Pamela Gustavson under the family car doctrine. On or about February 9, 2004, the plaintiff filed a revised complaint. The plaintiff then filed a substitute revised complaint on or about November 17, 2004. Thereafter, on or about December 7, 2005, the plaintiff made yet another revision by filing an amended complaint. Each complaint shall be referred to hereafter as the first, second, third or fourth complaint, respectively. The first, second, and third complaints are virtually identical as to the factual allegations regarding the actions leading to, and the cause of the plaintiff's injury. Each alleges in part that the insureds owned a four-wheeled one-seat all terrain vehicle ("ATV") which was garaged at their residence; that James Gustavson invited Anna Pister to ride as a passenger on nearby property not owned by the Gustavsons; and that as they proceeded over unpaved, uneven trails and terrain, the plaintiff was thrown from the ATV suffering injuries as a result.
Exhibits 2, 3, 4 and 5 appended to the defendant's motion for summary judgment.
Following the accident, the defendant ("Nationwide") issued a letter dated August 30, 2001 to the Gustavsons denying coverage under the Nationwide Golden Blanket Homeowner's Policy, that was effective from February 13, 2001 through February 13, 2002, due to an exclusion in the policy for the use of a "motorized land vehicle owned by an insured and designed for recreational use off public roads, while off an insured location." Shortly after the receipt of the first complaint on or about August 5, 2003, the Gustavsons forwarded a copy of the claim to Nationwide. Thereafter, the Gustavsons agreed to submit Anna Pister's claim to arbitration. On December 19, 2005, the arbitrator issued a decision in which he awarded the plaintiff $287,290.31. The following day, the court, Mintz, J., entered judgment for the plaintiff for that amount, pursuant to the award, plus offer of judgment interest of $3,494.65. At that hearing the court noted that the parties had entered into a stipulation in which the plaintiff agreed that she would not pursue a judgment against the Gustavsons, but would instead thereafter file an action against Nationwide for its failure to defend them.
Exhibit 6 appended to defendant's motion for summary judgment.
See Exhibit G to plaintiff's complaint in the present action.
The plaintiff then commenced the present action in which she alleges that, under General Statutes § 38a-321, she is subrogated to the Gustavsons' rights against the defendant (Nationwide) for wrongful denial of coverage and its failure to defend them in the initial action. In the present action, she seeks damages from the defendant for the amount of the arbitrator's award, plus offer of judgment and statutory interest.
General Statutes § 38a-321 provides in relevant part: "Each insurance company which issues a policy to any person . . . insuring against loss or damage on account of the bodily injury . . . of any person . . . for which loss or damage such person . . . is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss [or] damage . . . occasioned by such casualty . . . Upon the recovery of a final judgment against any person . . . by any person . . . for loss or damage on account of bodily injury . . . if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."
"The intention of the Act is to give the injured person the same rights under the policy as the assured . . . A party subrogated to the rights of an assured under § [38a-321] obtains no different or greater rights against the insurer than the insured possesses and is equally subject to any defense the insurer may have against the assured under the policy." (Citations omitted; internal quotation marks omitted.) Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 672-73, 539 A.2d 138 (1988).
The defendant has filed an answer in which it admits that it issued a homeowner's policy to the Gustavsons, the policy was in effect on the date of the accident, and that it notified the Gustavsons that the policy did not cover the accident. It denies, however, that the plaintiff is subrogated to the Gustavsons' rights against it. It also alleges special defenses, two of which form the basis for its December 1, 2006 motion for summary judgment. It claims that it did not have a duty to defend or indemnify the Gustavsons in the initial action against them by Anna Pister due both to the nature of the plaintiff's allegations therein and because the Gustavsons failed to send them a copy of the fourth complaint which substantively altered the allegations against them in that action. Additional facts will be recited as necessary.
II LAW
"Practice Book § 17-49 provides in relevant part that `[summary] judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law' . . . The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue of material facts, which, under applicable principles of substantive law, entitle[s] 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 . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 379; see 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 158, 888 A.2d 141 (2006). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005).
III DISCUSSION
According to the defendant, it is entitled to summary judgment because in the first three complaints that the plaintiff filed against the Gustavsons her cause of action arose out of her allegations that she was injured as a result of James Gustavson's use of an ATV while off the Gustavsons' premises, and the policy expressly excludes coverage for such conduct. The defendant also contends that, to the extent that the fourth complaint possibly alleged conduct for which the policy would provide coverage, the Gustavsons' failure to send it a copy of the fourth complaint and/or other documents absolves it of its duty to defend and/or indemnify.
"It is well settled that an insurer who maintains that a claim is not covered under its insurance policy can either refuse to defend or it [can] defend under a reservation of its right to contest coverage under the various avenues which would subsequently be open to it for that purpose . . . An insurer who chooses not to provide its insured with a defense and who is subsequently found to have breached its duty to do so must bear the consequences of its decision, including the payment of any reasonable settlement agreed to by the plaintiff and the insured . . . Moreover, an insurer, after breaking the contract by its unqualified refusal to defend, should not thereafter be permitted to seek the protection of that contract in avoidance of its indemnity provisions." (Citations omitted; internal quotation marks omitted.) Black v. Goodwin, Loomis Britton, Inc., 239 Conn. 144, 152-53, 681 A.2d 293 (1996).
In deciding whether an insurer breached its duty to defend its insured, the court must consider the provisions of the policy of insurance and the nature of the claims made against the insured, as evidenced by the complaint that was filed against the insured. See Springdale Donuts, Inc v. Aetna Casualty Surety Co. of Illinois, 247 Conn. 801, 807, 724 A.2d 1117 (1999). In this context, our Supreme Court has explained that, "it is well settled that an insurer's duty to defend . . . is determined by reference to the allegation 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 . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend." (Citation omitted; internal quotation marks omitted.) Id. Furthermore, in this context, "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.) Flint v. Universal Machine Co., 238 Conn. 637, 647, 679 A.2d 929 (1996). Moreover, the court has emphasized that, "[i]f an allegation of the complaint falls even possibly within the coverage, the insurance company must defend the insured." (Emphasis in original; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005).
Accordingly, if the plaintiff's complaint in her action against the Gustavsons "alleged facts that brought it within the ambit of coverage of [their] liability policy," the defendant was obligated to defend them in that action. Flint v. Universal Machine Co., supra, 238 Conn. 647. "On the other hand, if the complaint [alleged] a liability which the policy does not cover, the insurer [was] not required to defend." (Internal quotation marks omitted.) Id.
The court first examines the insurance policy, mindful of the standards that apply thereto. "The [i]nterpretation of an insurance policy . . . involves a determination of the intent of the parties as 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 . . . [and construing] any ambiguity in the terms . . . in favor of the insured." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 463.
The homeowner's policy issued by Nationwide to the Gustavsons included a provision in the personal liability section that stated, in part, as follows: "[w]e will pay damages the insured is legally obligated to pay due to an occurrence. We will provide a defense at our expense by counsel of our choice." The term "occurrence" is defined as "bodily injury . . . resulting from an accident . . ." that occurs during the policy period. The exclusion at issue between the parties provides: "Medical Payments to Others do not apply to bodily injury . . . arising out of the ownership, maintenance or use of . . . a motor vehicle owned or operated by, or rented or loaned to an insured." The defendant relies on the following definition of the term "motor vehicle," which is included in the definitions section of the policy, paragraph 5(c): "a motorized golf cart, snowmobile or other motorized land vehicle owned by an insured and designed for recreational use off public roads, while off an insured location." Read in conjunction with this definition, the exclusion applies to claims for bodily injuries sustained by a third party that arose out of the use of a motorized land vehicle that was owned or operated by an insured and designed for recreational use off public roads, while the vehicle was off an insured location.
Coverage E — Personal Liability, Section II of the Nationwide Mutual Insurance Golden Blanket Policy #5106MP961035; Exhibit 1 to defendant's motion for summary judgment.
Amendatory Endorsement 3362-B, Definitions section. Exhibit 1 to defendant's motion for summary judgment.
Section II(1)(e)(2) of the policy. Exhibit 1 to defendant's motion for summary judgment.
In the first three versions of the complaint that the plaintiff filed in her action against the Gustavsons, she alleged that "upon information and belief, one or more of the [Gustavsons] owned a four-wheeled one-seat all terrain vehicle which was garaged in said residence, which vehicle shall hereinafter be referred to as the `ATV.'" She further alleged that her injuries arose out of James Gustavson's careless and negligent use of the ATV. Pursuant to these allegations, the plaintiff asserted a claim of negligence against James Gustavson in regard to the manner in which he used and operated the ATV, a claim of negligent entrustment against Pamela and Eric Gustavson based on their entrustment of the ATV to their son, a claim that Eric and Pamela Gustavson were liable for her injuries in that they owned and maintained the ATV as a family vehicle and, at the time of the accident, their son was operating the vehicle within the scope of his authority to do so, as well as a claim that all the Gustavsons were liable for her injuries under General Statues § 14-388 in that her injuries were "consequential damages of the operation of the ATV." The defendant maintains that all of the plaintiff's claims come within the exclusionary language of the policy. The plaintiff counters that her negligent entrustment claim triggers a duty on the part of Nationwide to defend the claims.
The question of whether the Gustavsons sent the defendant a copy of the first complaint is disputed. The dispute is not material in this context, however, because the defendant does not dispute that it received the second and third versions of the complaint and that they were substantially similar to the first one.
General Statutes § 14-388 allows a landowner to bring a claim against the owner and operator of an ATV for "consequential damage" that resulted from the travel of the ATV over his or her property. Given the plaintiff's allegations it is not clear how this statute applies to her claim of damages.
Our appellate courts have not specifically determined whether a claim against an insured for his or her negligent entrustment of a motor vehicle to another is a claim that is subject to a motor vehicle exclusion in the insured's homeowner's policy. Our Supreme Court has decided, however, that a claim against insured parents pursuant to General Statutes § 52-572, which provides that the parents of a minor who takes a motor vehicle without the owner's permission are jointly and severally liable for the damages and injuries that the minor causes, does come within a motor vehicle exclusionary clause in the parents' homeowner's policy. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 258, 268 A.2d 663 (1970).
General Statutes § 52-572(a) provides in relevant part: "The parent or parents . . . of any unemancipated minor . . . which minor . . . wilfully or maliciously [causes] damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, [causes] damage to the motor vehicle, shall be jointly and severally liable with the minor . . . for the damage or injury to an amount not exceeding five thousand dollars, if the minor . . . would have been liable for the damage or injury if [he] had been [an adult]."
In LaBonte, the parent insureds brought an action against their insurer for its refusal to defend them in separate action that the owner of a motor vehicle brought against them for the damage their minor son did to the vehicle after he took it without the owner's permission. The exclusionary clause that the insurer relied upon provided that coverage "shall not apply `to the ownership, maintenance, operation, use . . . of . . . automobiles . . . while away from the premises or the ways immediately adjoining.'" Id., 255. This clause, the court explained, "is common to public liability insurance policies, probably for the reason that coverage in such cases is ordinarily procured as automobile . . . insurance . . . [The] clause provides, in effect, that any liability, under any theory of recovery, whether personal negligence, master-servant, agency, or other theory of vicarious liability, which arises from an automobile accident off the premises, is outside the scope of the contract . . . A number of decisions from other jurisdictions indicate that there can be no coverage under a policy with an exclusionary clause such as that contained in the instant policy even though the insured's liability arises under a relationship of agency or master and servant rather than personal negligence . . . We see no reason why a different rule should apply in cases of vicarious liability created by statute . . . In summary, we think that the purpose of the exclusionary clause under consideration is to exclude coverage from all liability arising from an off-premises automobile accident, no matter what the theory of recovery might be." (Citations omitted.) Id., 257-58.
It is reasonable that the same rule should apply to claims of liability that, like the plaintiff's claim in this case, is premised on allegations that Eric and Pamela Gustavson were negligent in entrusting the ATM to their son. It is also noteworthy that the "trend" in other jurisdictions is to conclude that motor vehicle exclusions in homeowner's policies also exclude negligent entrustment claims on the basis that such claims are "not separate from the underlying act of negligence." Wilcha v. Nationwide Mutual Fire Ins. Co., 2005 Pa.Super. 395, 887 A.2d 1254, 1263 n. 3 (Pa.Super. 2005). See also cases cited therein.
Moreover, our courts have interpreted phrases such as "arising out of the use of motor vehicles owned or operated by an insured" broadly when they are used in exclusionary provisions of homeowners policies. United Services Automobile Assn. v. Kaschel, 84 Conn. 139, 145, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004). "In Hogle v. Hogle, 167 Conn. 572, 356 A.2d 172 (1975), our Supreme Court had the opportunity to analyze policy language similar to that at issue . . . while discussing an exclusionary clause in a homeowner's insurance policy. In Hogle, the court stated that `it is generally understood that for liability for an accident or an injury to be said to arise out of the use of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury was connected with, had its origins in, grew out of, flowed from, or was incident to the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile.' Id., 577." (Internal quotation marks omitted.) United Services Automobile Assn. v. Kaschel, supra, 84 Conn. 145.
Thus, the defendant is entitled to summary judgment in the present case if it meets its burden of providing evidence that, when viewed in the light most favorable to the plaintiff, establishes there is no genuine issue of material fact that the plaintiff's injuries arose out of conduct that comes within the exclusion, i.e., the use of a motorized land vehicle designed for recreational use off public roads while off of an insured location.
The policy itself does not define or mention ATVs. In our motor vehicle statutes, an ATV is defined as "a self-propelled vehicle designed to travel over unimproved terrain and which has been determined by the Commissioner of Motor Vehicles to be unsuitable for operation on public highways which is not suitable for registration under chapter 246." General Statutes § 14-379. Although ATVs are required to be registered, the registration statute that applies to them is General Statutes § 14-380, which is in chapter 255, not chapter 246. Thus, although the statutory definition of an ATV does not exactly match the wording of the policy's exclusion for a vehicle "that is designed for recreational use off public roads," it is sufficiently similar to indicate that the Gustavsons and the defendant intended that the policy would not provide coverage for bodily injuries to others that arose out of the use of their ATV when it was not on an insured location.
Courts in other jurisdictions that have considered the question of whether ATVs are excluded under homeowners policies have concluded that they are excluded. As one court noted, "[i]n common usage, an ATV is defined as `[a] small, open motor vehicle having one seat and three or more wheels fitted with large tires. It is designed chiefly for recreational use over roadless, rugged terrain.' American Heritage Dictionary of the English Language 50 (3d Ed. 1992)." Farm Family Mutual Ins. Co. v. Whelpley, 54 Mass.App.Ct. 743, 767 N.E.2d 1101, 1103 (Mass.App.Ct. 2002) (ATV excluded by exclusion for "motorized land vehicle . . . designed for recreational use off public roads"). See also Illinois Farmers Ins. Co. v. Wiegland, 808 N.E.2d 180, 187-88 (Ind.Ct.App. 2004) (ATV excluded by exclusion for "motorized land vehicle designed for recreational use off public roads"); and DeWitt v. Nationwide Mutual Fire Ins. Co., 109 Ohio App.3d 716, 720, 672 N.E.2d 1104 (1996) (ATV excluded by exclusion for "motorized vehicle owned by an insured and designed for recreational use off public roads"), cert. denied, 76 Ohio St.3d 1495, 670 N.E.2d 242 (Ohio 1996).
The question of whether the ATV was off an insured location at the time she was injured must be reviewed by again looking at the terms of the policy and the allegations of the complaint. In the policy, the term "insured location" is defined in paragraph 4 of the definitions section to include "a. the residence premises [dwelling and grounds where the insureds live]. b. the part of any other premises . . . and grounds used by you as a residence and shown in the policy . . . c. a premises you use with premises defined in 4a or 4b."
A review of the plaintiff's first three complaints find several allegations relevant to the question of whether the ATV was off the insured premises at the time the injuries occurred. For example, on the date of the accident, James Gustavson, with the permission of Pamela Gustavson, "invited the plaintiff to ride as a passenger on the ATV on nearby property not owned by [the Gustavsons] . . . James Gustavson operated the ATV over the public highway until he reached the trailhead, where he had [the plaintiff] get on the ATV . . . James Gustavson did not have the permission of the landowner to ride the ATV on its property . . . James Gustavson proceeded to carry [the plaintiff] as a passenger on the . . . ATV over unpaved trails and terrain . . . when the ATV rode over uneven terrain [the plaintiff] was thrown from the ATV . . . When she was thrown from the ATV, [the plaintiff] suffered . . . injuries . . . The location of her fall was far from the trailhead . . ." As stated previously, "[i]f an allegation of the complaint falls even possibly within the coverage, the insurance company must defend the insured." (Emphasis in original; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 463.
See plaintiff's complaint, revised complaint, and substitute revised complaint in Pister v. Gustavson.
Our courts have construed this principle broadly. For example, in Schwartz v. Stevenson, 37 Conn.App., 581, 657 A.2d 244 (1997), the defendant homeowners impleaded their insurer into an action that was brought against their son for his negligent operation of a motor vehicle. In so doing, the defendants alleged that the insurer breached the insurance policy by refusing to comply with its duty to defend them in the action. The defendants and the insurer both moved for summary judgment, the insurer on the ground that the homeowner's policy at issue only covered injuries that arose as a result of the use of a motorized land vehicle that was not owned by the insured, and that "unless and until the original plaintiffs allege that the vehicle operated by [the defendant's son] was not owned by any of the defendant insureds, they have not stated a claim for an injury covered by the policy." Id., 583. The trial court granted the defendants' motion for summary judgment and denied the insurer's motion, explaining that if it adopted the insurer's argument, "`[it] would place the court in the untenable position of assuming something not in the pleadings to the detriment of the parties.'" (Emphasis in original.) Id., 583-84.
The Appellate Court affirmed the trial court's judgment as to both motions, explaining that "[t]he appropriate test, as applied by the trial court, is whether the allegations of the complaint fairly state facts that appear to bring the injury complained of within the coverage. We agree with the trial court that the complaint states facts that appear to bring the injury complained of within the coverage.
"We also conclude that the original complaint need not allege a negative, that is, that the vehicle was not owned by an insured. A complaint need not negate each and every exclusion within a policy in order to trigger a contractual obligation to defend. It is the allegations on the face of the complaint that govern the duty to defend. While the meaning of the exclusionary clause in the present policy is clear and unambiguous, its existence per se does not relieve an insurer's duty to defend when an underlying complaint facially alleges facts that appear to bring the claimed injury within the policy coverage." Id., 585-36.
In the present case, the plaintiff's failure to negate the exclusion at issue by alleging that when she was injured the ATV was on an insured location, does not mandate that the defendant be entitled to summary judgment on the issue of its duty to defend. In order to prevail, the defendant is required to demonstrate that the plaintiff's complaint against the Gustavsons, when viewed in favor of the plaintiff, does not state facts that even possibly fall within the coverage of the policy. See Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 466.
In reviewing the evidence presented to the court through the defendant's motion and the plaintiff's objection thereto, it is clear that a fair reading of the allegations of the first three complaints leads to the conclusion that the plaintiff was off the insured premises at the time her injuries occurred. Specifically, the allegations claim that the plaintiff was invited to ride on an ATV owned, operated and garaged by the Gustavsons, over nearby property not owned by them, and for which they had no permission of the landowner to do so. Moreover, the ATV had to travel over public roads to reach a trailhead and that the location of the fall was far from the trailhead. As our courts have stated, it is the allegations on the face of the complaint that govern the duty to defend and that the appropriate test is whether the allegations fairly state facts that appear to bring the injury complained of within coverage. Schwartz v. Stevenson, supra, 37 Conn.App. 581. Here, the allegations of the first three complaints fairly state facts that show the ATV was a motorized land vehicle owned by the insureds, designed for recreational use off public roads, and that the plaintiff's injury did not occur on the insureds' property. As a result, the exclusion of the homeowner's policy applied to the claims of the plaintiff. A fair reading of the facts as set out in the complaints does not even invite the possibility that coverage exists. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 466. Having come to this conclusion however, does not completely resolve the issues raised by the defendant's motion as there remains the issue of the fourth complaint filed by the plaintiff in Pister v. Gustavson.
The defendant contends in support of its motion that it is entitled to summary judgment because the evidence shows that the Gustavsons failed to provide it with a copy of the fourth (amended) complaint that the plaintiff filed against the Gustavsons on or about December 7, 2005. In this complaint, which the plaintiff filed shortly before the parties entered into arbitration, the plaintiff omitted her allegations that on the date of the accident, James Gustavson, with the permission of Pamela Gustavson, invited the plaintiff to ride as a passenger on the ATV on nearby property not owned by them; that James Gustavson operated the ATV over the public highway until he reached the trailhead where he had Anna Pister get on the ATV; that James Gustavson did not have the permission of the landowner to ride the ATV on its property, and that the location of her fall was far from the trailhead. The Gustavsons' failure to send Nationwide a copy of this complaint, the defendant points out, was contrary to the provision in the homeowner's policy in which the Gustavsons agreed to cooperate with Nationwide in the event of accident or occurrence by forwarding to the defendant "every document relating to the accident or occurrence . . ." According to Nationwide, whether the allegations in the fourth complaint were sufficient to trigger its duty to defend is irrelevant because it did not receive a copy of it and the Gustavsons' failure to cooperate relieved it of its duty to defend.
In the fourth complaint, the plaintiff merely alleged that "James Gustavson invited [the plaintiff] to ride as a passenger on [the ATV] which was garaged in said residence . . . [He] proceeded to carry [the plaintiff] as a passenger on the . . . ATV over uneven terrain and was proceeding to do so when the ATV rode over uneven terrain and [the plaintiff] was thrown from the ATV."
Our Supreme Court has explained that cooperation clauses in insurance policies are "conditions inserted in the policy for [the insurer's benefit]," thus the insurer has "the privilege of waiving [the condition]." Haskell v. Eagle Indemnity Co., 108 Conn. 652, 656, 144 A.2d 298 (1929). An insurer can be said to have waived a cooperation clause when the insurer, with full knowledge of the claim at issue, informs the insured, or one on whom the insured justifiably relies, that it is refusing to defend the action on the basis of its determination that it is not liable for the claim. Id., 657. As the court explained, "the law rarely, if ever, requires the observance of an idle formality, especially after the party for whose benefit the original stipulation was made, has rendered conformity thereto unnecessary and practically superfluous." Id., 658.
In the present case, there has been submitted a copy of correspondence that the Gustavsons received from the defendant dated August 30, 2001, in which its claim representative stated that she had "completed my investigation and unfortunately, I must advise you that there is no coverage for this incident under the Gustavsons' . . . Homeowner's policy . . . The purpose of this letter is to formally notify you that coverage is excluded for this incident and we will not be able to honor any claim." In its answer, the defendant admits that the adjuster sent the letter, and the contents thereof. The plaintiff has presented evidence that shortly after August 5, 2003, the Gustavsons sent Nationwide a copy of the first complaint that she filed in her action against the Gustavsons. Although Nationwide denies that it received this complaint, it does not deny that it received the second and third versions, which the plaintiff filed on or about February 9, 2004 and November 17, 2004, respectively, or that these versions were substantially similar thereto. However, there is no evidence that the plaintiff, her counsel, the Gustavsons or their counsel ever provided a copy of the fourth complaint in the Pister v. Gustavson matter to Nationwide. In fact there is affirmative evidence that it was not. The significance of not doing so becomes clear in light of the language of the policy, under Section II(3) which states: "Duties after Loss: In case of an accident or occurrence, the insured will perform the following duties that apply. You will cooperate with us in seeing that these duties are performed: . . . b. Forward to us every document relating to the accident or occurrence." That language placed upon the Gustavsons an affirmative duty to provide to Nationwide a copy of the fourth complaint as the language within that complaint was substantively and materially different than that found in the first three complaints filed in the matter. This obligation particularly stands out where the Gustavsons and/or their counsel had already provided Nationwide with copies of the first three complaints.
At a deposition in the present case, Attorney Michael J. Mannion, counsel for the Gustavsons in Pister v. Gustavson, was deposed by Nationwide as follows:
Q. Did you find a copy of the December 7th Amended Complaint in your file?
A. I did.
Q. Did you, Attorney Mannion, ever tender this Complaint to Nationwide?
A. No.
Q. Did you ever tender this Complaint to Nationwide's agent?
A. No.
Q. Do you know if your clients, the Gustavsons, ever did?
A. I don't know if they did, but I would be very surprised if I learned that they had.
Q. If they did, they never told you that they had?
A. In fact, they would have only — I believe their only access would have been from me and I don't believe that I was giving them copies of pleadings . . . I am not in the habit of supplying pleadings to clients unless the client specifically requests and the Gustavsons did not.
Q. And so to summarize what you just said, you'd be surprised if the Gustavsons even had a copy of this Complaint, the December 7th, 2005 Complaint?
A. I would.
Exhibit 8 to defendant's motion for summary judgment.
Also, a deposition of Pamela Gustavson was taken wherein she testified:
Q. I'm asking you. Okay.
Defendant's Exhibit 5, it's entitled `Amended Complaint' dated December 7, 2005. Do you recall seeing this document previous to today?
A. No.
Q. Do you recall forwarding this document on to Nationwide at any time?
A. No.
Q. Faxing it on to Nationwide?
A. No.
Q. Do you know if your attorney Michael Mannion ever forwarded the document that's marked Defendant's Exhibit 5 on to Nationwide?
A. I'm not sure.
Exhibit 9 to defendant's motion for summary judgment.
The court notes that copies of the deposition transcripts were submitted and not originals or certified copies. Normally, "only 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, 678-79, 874 A.2d 849 (2005). "However, our Supreme Court has stated that parties may `knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.' Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our 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, where each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side." Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 05 5000208 (October 21, 2005, Shapiro, J.). Here, too, the court will consider, in the interest of judicial economy and fairness, those portions of the deposition testimony which are uncertified along with the other documents submitted such as the insurance policy and copies of responses to requests to admit, even though they are not originals, in that no objection has been raised by either party.
Our courts have stated that "immaterial and unsubstantial failures of an assured [to cooperate] do not constitute a breach . . . because they are not included within the fair intendment of the requirement that the assured co-operate . . ." (Internal quotation marks omitted.) Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 133, 302 A.2d 284 (1972). Moreover, "[t]he issue of whether there was a lack of cooperation cannot be decided by determining whether there was an abstract conformity to ideal conduct on the part of the insured. It is a pragmatic question to be determined in the light of the particular facts and circumstances brought out in the particular case." O'Leary v. Lumbermen's Mutual Casualty Co., 178 Conn. 32, 38-39, 420 A.2d 888 (1979). In the present case, addressing the question pragmatically, it cannot be said that the Gustavsons' failure to provide to Nationwide a copy of the fourth complaint was an immaterial and unsubstantial failure of an assured to meet its obligations under the terms of the policy. Nor can it be said that the obligation to do so was simply "the observance of an idle formality" as without the fourth complaint Nationwide did not have full knowledge of the claims in issue. The fourth complaint was substantively different from the preceding three complaints in that it removed various allegations in a clear attempt to avoid the exclusionary language of the policy. Because Nationwide was never made aware of the change, it was prevented from acting to make a further determination as to whether it had a duty to defend and/or indemnify. It had already conducted and completed an investigation based on the allegations of the first complaint which were substantially different than those in the fourth complaint. Moreover, the change in allegations clearly impacted that issue of whether the exclusionary language of the policy applied. Had Nationwide been aware of the change it could have made a decision to actively defend the case and take action to minimize the losses or claims of damage sought against its insureds and thereby protect their mutual interests. As noted, there is no dispute from the evidence presented that Nationwide never received a copy of the fourth complaint. As a result, there is no genuine issue of material fact that the Gustavsons failed to comply with the terms of the policy.
The fourth complaint (the amended complaint in Pister v. Gustavson) was filed approximately twelve days before the arbitration hearing which was held on or about December 19, 2005.
IV CONCLUSION
The plaintiff in the instant action, Anna Pister, has through subrogation no more rights than those held by the Gustavsons relative to the insurance policy in issue. Through a fair reading of the allegations of the first three complaints, the court finds that Nationwide has met its burden of proof to establish that there is no genuine issue of material fact as to whether the exclusionary language of the insurance policy applies as the ATV owned and/or operated by the Gustavsons was off the insured premises at the time the plaintiff suffered her injuries, and further, that the Gustavsons failed to cooperate under the terms of the homeowner's policy by failing to provide a copy of the fourth complaint to Nationwide. Accordingly, the defendant's motion for summary judgment is granted.