Opinion
No. CV07-074026117
May 14, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT NO. 109
The plaintiff insurer moves for summary judgment asserting that it has no duty to indemnify or defend the defendant, its insured, from damages claimed by the other defendant in a separate motor vehicle personal injury lawsuit.
On May 17, 2007, the plaintiff, All State Insurance, filed a one-count complaint for declaratory judgment against the defendant, Vincent Foster, and the defendant, Ronald Johnson. In that complaint, the plaintiff sought a declaration it was not obligated to defend or indemnify Foster, to whom it issued a home owners insurance policy, from claims of the defendant Johnson.
By way of background, the defendant Johnson filed a personal injury lawsuit on June 16, 2004, against the defendant Vincent Foster, his wife Toni Foster, and his daughter Stephanie Foster. The June 2004 complaint alleges that Stephanie Foster was operating a vehicle owned by Toni Foster with Toni Foster's express consent when she collided with the vehicle driven by Johnson. This resulted in bodily injuries, losses and damages. In the same complaint Mr. Johnson alleges that Vincent Foster is liable for Johnson's injuries on theories of negligent operation by Johnson's adult daughter and further that he knew or should have known that Stephanie Foster was careless, and he failed to ensure she was properly trained, educated and instructed in driving and safety.
When Vincent Foster was served with the underlying motor vehicle lawsuit, he requested that All State provide him with a defense. The plaintiff, consequently, filed this action for declaratory judgment. Claims of liability against Stephanie and Toni Foster are not at issue in the case at bar. The plaintiff filed a motion for summary judgment on January 8, 2008. The defendant filed a memorandum of law in opposition to the motion for summary judgment on March 12, 2008, and the plaintiff filed a reply on April 7, 2008.
A.
It is well established that "[s]ummary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citation omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
"Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006).
"When a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [§§ 17-45 and 17-46 of the Practice Book], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him." Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980).
B.
The plaintiff in the present case is moving for summary judgment on the ground that "the undisputed material facts demonstrate that it does not have a duty to defend and/or indemnify its insured," the defendant based upon the language of the insurance policy. The plaintiff argues, in its memorandum of law, that it has no duty to indemnify or defend because the theories of liability relate to the use or operation of a motor vehicle or the negligent supervision of Stephanie Foster, both of which are excluded from coverage under the homeowner's insurance policy. The homeowner's insurance policy contains the following exclusionary language:
We do not cover any bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer. (Section II, paragraph 5 of plaintiff's exhibit B.)
The exclusionary language involving negligent supervision provides, in relevant part:
We do not cover bodily injury or property damage arising out of the negligent supervision by an insured person of any person; or any liability statutorily imposed on any insured person arising from the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any . . . motor vehicle . . . which is not covered under Section II of this policy. (Section II, paragraph 7 of plaintiff's exhibit B.)
Accordingly, the plaintiff asserts that the plain language of the policy excludes bodily injury and property damage arising from the use or operation of a motor vehicle. Further, the policy excludes coverage of liability claims arising out of negligent supervision by an insured of any person.
In support of its motion, the plaintiff has presented the complaint in the underlying suit, the insurance policy under which the defendant is covered, an affidavit of Gina Sniadack, a claims adjuster of the plaintiff, and case law in support of its motion. In Sniadack's affidavit, she asserts that she has knowledge of the defendant's policy and that the plaintiff sent a reservation of rights letter to the defendant explaining that it may have no duty to indemnify.
The defendant, in his memorandum of law in opposition to the motion for summary judgment, argues that there are genuine issues of material fact due to differing interpretations of the insurance contract. The defendant argues that the exclusion clause relating to "ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any . . . motor vehicle" is not applicable in this matter because he was not legally responsible for his adult daughter's actions and he was not, himself, operating the vehicle.
In support of his position, the defendant presented evidence including the case incident report from the underlying accident, which was filed by the New Haven police department and includes photos, an account of the events and a hand-drawn map. Additionally, the memorandum in opposition to the motion for summary judgment included an affidavit of the defendant, in which he states that he did not "own, control or use the automobile that was involved in the collision," that he "was not a named insured on the automobile," and that he "did not supervise or control Stephanie Foster."
C.
"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).
"[A] duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage." Schwartz v. Stevenson, 37 Conn.App. 581, 584, 657 A.2d 244 (1995). "[I]f an allegation of the complaint falls even possibly within the coverage, then 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).
"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.
D.
Pister v. Nationwide Mutual Insurance, Co., Superior Court, judicial district of Danbury, Docket No. CV 06 4005239 (April 13, 2007, Shaban, J.), and General Star Indemnity Co. v. Millington, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0183908 (May 31, 2006, Jennings, J.) (41 Conn. L. Rptr. 570), explain that summary judgment is appropriate in this situation. In Pister, the court explained that to prevail on summary judgment, the defendant needed to "demonstrate that the plaintiff's complaint . . . when viewed in favor of the plaintiff, does not state facts that even possibly fall within the coverage of the policy." Pister v. Nationwide Mutual Insurance, Co., Superior Court, judicial district of Danbury, Docket No. CV 06 4005239 (April 13, 2007, Shaban, J.). Moreover General Star Indemnity Co. noted that "[i]t is appropriate to decide this issue on a motion for summary judgment, since the allegations made in the underlying cases and the language of the Policy are fixed and immutable, and this is therefore not a situation where either party could effectively benefit from pleading over." General Star Indemnity Co. v. Millington, supra, 41 Conn. L. Rptr. 571. Consequently, the present action is appropriate for summary judgment.
The Connecticut Supreme Court has construed motor vehicle exclusionary provisions within insurance policies. "[I]t 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." Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975).
In United Services Automobile Assn. v. Kaschel, 84 Conn.App. 139, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004), the Appellate Court determined that the plaintiff, issuer of a homeowner's insurance policy, did not have a duty to defend any of the four counts in the original complaint because all of the actions arose out of the use of a motor vehicle, which was subject to exclusionary language. "The motor vehicle accident was the operative event giving rise to the injuries alleged . . . and, therefore, those injuries were connected with, had their origins in, grew out of, flowed from, or were incident to, . . . the use of the vehicle. This is not a case in which the allegations of the underlying complaint reveal that the injuries could have resulted only from the wholly independent act of failing to render aid." (Internal quotation marks omitted.) United Services Automobile Assn. v. Kaschel, supra, 84 Conn.App. 146.
Moreover, the appellate courts have emphasized enforcing the plain meaning of the exclusionary clauses within policies. Labonte v. Federal Mutual Ins. Co., 159 Conn. 252, 268 A.2d 663 (1970), like the present case, involved a car accident. The plaintiffs in Labonte were parents of the teen driver and were seeking indemnification through their homeowner's insurance policy. "[W]e think 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. To hold otherwise would be to distort the ordinary scope of a homeowner's policy to the detriment of both the insurer and the public, which would be subjected to higher premium rates for broad-based risk which would, in most cases, serve only to duplicate coverage available in most automobile insurance policies." Labonte v. Federal Mutual Ins. Co., supra, 159 Conn. 258.
While substantial case law has interpreted motor vehicle exclusions within a homeowner's policy, courts offer less guidance when it comes to a claim of negligent entrustment or supervision. Relying on Supreme Court decisions in Hogle, Labonte and numerous cases from other jurisdictions, Superior Courts have interpreted a negligent entrustment theory of liability as falling within the ambit of a motor vehicle exclusion. For example, in U.S.A.A. Property and Casualty Insurance v. McKeever, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 92 51968 (August 9, 1995, Klaczak, J.) (14 Conn. L. Rptr. 588), the court granted summary judgment, finding that a negligent supervision claim was sufficiently related to the automobile accident, which fell under an insurance exclusion. Having applied the aforementioned rule from Hogle, the McKeever court stated: "it appears that the automobile exception encompasses the negligent supervision claim since the injuries sustained flowed from the ownership and use of a motor vehicle owned or operated by an insured." U.S.A.A. Property and Casualty Insurance v. McKeever, supra, 14 Conn. L. Rptr. 589. Moreover, the court in Hogle "has held that the insurer's obligation to pay does not depend on whether there is a separate and distinct cause of action. Instead, it hinges on whether the use of a car was connected with the accident or the creation of a condition that caused the accident." (Internal quotation marks omitted.) Id.
"[I]t 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." Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975).
In Pister v. Nationwide Mutual Insurance, Co., Superior Court, judicial district of Danbury, Docket No. CV 06 4005239 (April 13, 2007, Shaban, J.), a plaintiff alleged wrongful denial of insurance coverage for an accident involving an all terrain vehicle. The court addressed both the motor vehicle exclusion language of a homeowner's policy as well as whether a negligent entrustment claim could be separated from the motor vehicle entrustment claim. The court noted that "[o]ur 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 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 parent's homeowner's policy." Id. Pister noted: "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 claim are not `separate from the underlying act of negligence.'" Id.
See Wilcha v. Nationwide Fire Insurance Co., 22005 Pa.Super. 395, 887 A.2d 1254, 1263 n. 3 (Pa.Super. 2005).
In the present case, the allegations of negligent supervision or entrustment are causally linked to the use of the motor vehicle, and like Pister, would be excluded under the motor vehicle provision. Further, the plaintiff's policy includes separate and distinct negligent entrustment exclusion, providing further support for the exclusion of coverage for such claims.
E.
The plain meaning of the relevant policy provisions and considering the common law, the allegations of the defendant Johnson against the defendant Vincent Foster fall squarely within the exclusionary language of the plaintiff's homeowners insurance policy. It is unnecessary to contemplate whether or not a claim of negligent supervision is excluded under the automobile exclusion in the plaintiffs policy as the policy in this case includes separate, distinct and adequate language to that end. The "fixed and immutable" allegations from the underlying case fall within the plaintiff's policy exclusions. The plaintiff's motion for summary judgment is granted.