Opinion
HHDCV166073550S
09-06-2017
Allstate Insurance Company v. Charles J. (" C.J.") Furnari
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
ROBERT B. SHAPIRO, JUDGE
This matter is before the court concerning the plaintiff Allstate Insurance Company's motion for summary judgment (#102) (motion). The court heard oral argument concerning the motion on July 24, 2017. For the reasons stated below, the motion is granted.
I
Background
The plaintiff seeks a declaratory judgment that it is not required to defend or indemnify in an underlying action, wherein defendant, Charles J. (" C.J.") Furnari, is alleged, inter alia, to have sexually assaulted, harassed, and bullied his classmate.
In its complaint, the plaintiff alleges that the defendant was an insured under a homeowners insurance policy (policy) and was sued in the underlying action, Alicia Sedgwick v. Charles Furnari et al., Docket No. TTD CV 16 6010478, pending in the judicial district of Tolland at Rockville.
The plaintiff claims that the defendant's actions are not covered under the policy because defendant's actions were voluntary/intentional and did not constitute an accident/occurrence despite the " negligence" language in the complaint.
Additional references to the factual background are set forth below.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.
III
Discussion
" [C]onstruction of a contract of insurance presents a question of law for the court . . . It is the function of the court to construe the provisions of the contract of insurance . . . 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.) Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, 142 Conn.App. 390, 405-06, 70 A.3d 74, cert. denied, 309 Conn. 909, 68 A.3d 662 (2013).
" Under the well established four corners doctrine, the duty to defend is broader than the duty to indemnify . . . An insurer's duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 739, 95 A.3d 1031 (2014).
" With respect to an insurer's duty to defend a claim brought against the insured, an insurer's duty to defend . . . is determined by reference to the allegations contained in the [underlying] complaint . . . Moreover, [t]he 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 . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citations omitted; internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 155-56, 61 A.3d 485 (2013).
" [W]e will not predicate the duty to defend on a reading of the complaint that is . . . conceivable but tortured and unreasonable . . . Thus, although an insurer is not excused from its duty to defend merely because the underlying complaint does not specify the connection between the stated cause of action and the policy coverage . . . the insurer has a duty to defend only if the underlying complaint reasonably alleges an injury that is covered by the policy." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 156. " We often have stated that the duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend." (Emphasis added.) Id., 161.
The underlying amended complaint in Sedgwick v. Furnari, Docket No. TTD CV 16 6010478, filed on April 22, 2016, alleges the following relevant facts. " On or about March 14, 2014, during the regular hours at Windham Technical High School and specifically during the Biology class with teacher Mary-Louise Antiuk, the plaintiff, Alicia Sedgwick was cornered, sexually groped, trapped in an area of the classroom against her will, threatened, attacked and physically assaulted by Charles ('C.J.') Furnari, all of which caused the plaintiff, Alicia Sedgwick, to suffer the painful, severe and debilitating injuries hereinafter set forth." (Emphasis added.) " The plaintiff's injuries, damages and losses were due to the negligence and carelessness of the defendant, Charles ('C.J.') Furnari, in one or more of the following ways, IN THAT: a . . . Furnari failed to restrain himself from negligently assaulting, battering, bullying, intimidating and/or harassing the plaintiff; b . . . Furnari failed to control his arms, hand, legs and feet; c . . . Furnari failed to restrain himself; d . . . Furnari failed to exercise the degree of reasonable care expected of a person of the same age and sensibilities in that he failed to appreciate the harm and dangers involved in cornering, sexually groping, trapping, threatening, attacking and/or physically assaulting the plaintiff, Alicia Sedgwick; . . . g . . . Furnari failed to appreciate that by constantly bullying the plaintiff, Alicia Sedgwick that it would result in the plaintiff sustaining psychological harm."
Here, the policy, under Coverage X, page 21, under Family Liability Protection, Losses We Cover Under Coverage X, provides, in relevant part: " Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies . . ." (Emphasis omitted.)
At page 3, paragraph 9, the policy states that " 'Occurrence'--means an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage." (Emphasis omitted.)
Under Losses We Do Not Cover Under Coverage X, the policy, in paragraph 1 at page 21, states, in relevant part, " We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of an insured person. This exclusion applies even if: a) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected . . ." (Emphasis omitted.)
" Specifically, [w]here . . . the policy language excludes coverage from damages resulting from intentional acts, the court examines the factual allegations to decide whether both intentional acts and intended results are present . . . Moreover . . . Connecticut courts have long eschewed the notion that pleadings should be read in a hypertechnical manner . . . They thus read the complaint in a manner that advances substantial justice, construing it reasonably to contain all that it may fairly mean . . . The result is that even when an action is [pleaded] as an unintentional tort [such as negligence], the court examines the alleged activities in the complaint to determine whether the insured intended to commit both the acts and the injuries that resulted. If so, regardless of the title of the action, the court holds the action to be outside the coverage of the policy.
" Furthermore, harmful intent may be inferred at law in circumstances where the alleged behavior in the underlying action is so inherently harmful that the resulting damage is unarguably foreseeable . . . Case law is clear that where the provisions in the insurance policy expressly exempt intentional acts of an insured from coverage, the court will grant summary judgment in favor of the insurer who relies upon such exemption . . . When an insurer relies on an exclusionary clause to deny coverage, the initial burden is on is on the insurer to demonstrate that all the allegations within the complaint fall completely within the exclusion." (Citations omitted; internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 574-75, 142 A.3d 1079 (2016).
" [A]n insured's intent to commit an act may be negated for purposes of an intentional conduct exclusion clause when the insured did not understand the nature or wrongfulness of his conduct . . . [In Allstate Ins. Co. v. Barron, 269 Conn. 394, 407, 848 A.2d 1165 (2004), the court] determined that the dispositive issue was not whether [the mother's] actions were intentional in the narrow sense that they were deliberate, but whether her intent was negated by her inability to understand the wrongfulness of her conduct or to control her conduct." (Citation omitted; internal quotation mark omitted.) Id., 578. " The plaintiff also denied coverage on the ground that [the plaintiff's] complaint failed to allege an occurrence under the policy, defined as an accident, claiming that it had no duty to defend [the defendant] because his actions did not fall within the scope of the policy. A typical definition of the term accident is a lack of intention or necessity, often opposed to design; an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition . . . and producing an unfortunate result . . . In short, the relevant inquiry in determining whether an accident has occurred is whether the injuries at issue were caused by the intentional design of the insured, or rather, by a sudden unforeseen event." (Internal quotation marks omitted.) Id., 571 n.8.
" What appears to be the most commonly cited Connecticut Supreme Court case on the issue has defined an 'accident' as: '[a]n unintended and unforeseen injurious occurrence, ' . . . 'an occurrence for which no one is responsible ' . . . Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934), and 'an event of unfortunate character that takes place without one's foresight of expectation .'" (Citations omitted; emphasis in original.) Allstate Ins. Co. v. Tarantino, United States District Court, District of Connecticut, No. 3:15-cv-62 (SRU), (June 23, 2016, Underhill, J.).
As discussed below, although the underlying complaint purports to bring an action sounding in negligence, the defendant's actions, as alleged in the complaint, were not accidental but, rather, were intentionally taken acts not covered by the policy. The language in the complaint alleges that the defendant " cornered, sexually groped, trapped in an area of the classroom against her will, threatened, attacked and physically assaulted " Sedgwick. (Emphasis added.) The policy does not provide coverage for acts that do not constitute an occurrence, which is defined in the policy as an accident. " Accident" has been defined by our courts as " an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition " (emphasis added); State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 571, n.8; and " an occurrence for which no one is responsible"; Allstate Ins. Co. v. Tarantino, supra, No. 3:15-cv-62 (SRU), .
In determining whether the conduct alleged here constituted an accident, the relevant inquiry is " whether the injuries at issue were caused by the intentional design of the insured, or rather, by a sudden unforeseen event." State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 571, n.8. In the present case, the injuries allegedly sustained by Alicia Sedgwick were brought about by the intentional design of the insured, when he allegedly chose to corner, sexually grope, trap against Sedgwick's will, threaten, attack and physically assault her.
The defendant argues, however, that the underlying complaint sounds primarily in negligence because Sedgwick alleges, inter alia, that the defendant " failed to restrain himself from negligently assaulting, battering, bullying, intimidating and/or harassing the plaintiff"; " failed to control his arms, hands, legs and feet"; [and] " failed to exercise the degree of reasonable care expected of a person of the same age and sensibilities in that he failed to appreciate the harm and dangers involved in cornering, sexually groping, trapping, threatening, attacking and/or physically assaulting the plaintiff . . ." (Emphasis added.) See underlying complaint, p. 4, ¶ 14(a)-(d). The underlying complaint additionally alleges that the defendant failed to appreciate the foreseeability of the emotional and bodily injury that could occur due to his conduct. See underlying complaint, p. 4, ¶ 14(e)-(g). The defendant argues that these allegations support the plaintiff's duty to defend because the conduct alleged in these sub-paragraphs is unintentional, negligent conduct.
However, the court is instructed to " [examine] the alleged activities in the complaint to determine whether the insured intended to commit both the acts and injuries that resulted." (Emphasis added; internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575. Even when an action is pleaded as negligence, if the underlying conduct was intentional, " the court holds the action to be outside the coverage of the policy, " and the labeling of the action is irrelevant. Id. Although the allegations state that the defendant failed to control his various limbs, the underlying action was the intentional assault, battery, bullying, groping, intimidating and/or harassing of the plaintiff. These are the activities that allegedly gave rise to the plaintiff's injuries.
Furthermore, although the underlying complaint alleges that the defendant failed to appreciate the foreseeability of the harm his actions would cause, the policy expressly states that it does not cover intentional bodily injury or bodily injury reasonably expected to result from the intentional acts of the insured even if such injury is of a different kind or degree than that intended or reasonably expected. See policy, p. 21, paragraph (1)(a). The policy expressly excludes coverage for injuries resulting from intentional acts regardless of whether the injuries sustained were those intended or were different from those reasonably expected and, therefore, excludes coverage for the alleged intentional acts of the defendant in the present case, which resulted in Alicia Sedgwick's injuries, regardless of whether the defendant foresaw the injuries.
In addition, as discussed below, the court can infer the intent to cause injury based on the activities alleged in the complaint--i.e., assaulting, groping, battering, and bullying Alicia Sedgwick. See State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575. The defendant's argument that the underlying complaint's allegations are conclusory and do not state the particulars of the alleged sexual groping, is unavailing. Cornering, sexually groping, and trapping a person against her will all involve intentional acts. The plaintiff has no duty to defend because the defendant's alleged conduct does not constitute an accident or occurrence under the policy and the underlying acts alleged are intentional despite the complaint using negligence language.
Although the plaintiff has no duty to defend when comparing the allegations of the complaint to the terms of the relevant policy, the court is instructed to take into consideration extrinsic evidence which tends to demonstrate a duty to defend exists. See Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 161. In the present case, the defendant seeks to introduce his deposition testimony, which is uncertified, as evidence in support of his claim that a genuine issue of material fact exists as to whether he intended to cause the injuries allegedly sustained by Sedgwick. " While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
Here, the plaintiff acknowledges the uncertified deposition testimony in its reply to the defendant's objection to summary judgment, and argues " the deposition testimony should not be considered because it is not certified." See reply (#108), p. 3. Where the adverse party objects, uncertified deposition testimony is insufficient to provide evidence of a genuine issue of material fact. See Barlow v. Palmer, supra, 96 Conn.App. 92.
In addition, review of the cited deposition testimony shows that, even if it was certified, it would not raise a genuine issue of material fact sufficient to defeat summary judgment. The defendant testified that " I know what I did was wrong and immature, but, I mean, I can't change what already happened. But nothing was ever meant to harm her like that." See Furnari Deposition, p. 74. Although the defendant claims that " nothing was ever meant to harm [Sedgwick] like that, " " harmful intent may be inferred at law in circumstances where the alleged behavior in the underlying complaint is so inherently harmful that the resulting damage is unarguably foreseeable." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 322 Conn. 575.
Also, a party's conclusory and self-serving statements, " in [an] affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
Moreover, as discussed above, the policy expressly states that " We do not cover any bodily injury intended by, or which may be reasonably expected to result from the intentional or criminal acts or omissions of, an insured person. This exclusion applies even if . . . such bodily injury is of a different kind or degree than that intended or reasonably expected . . ." (Emphasis added.) The policy expressly states that the injury sustained does not have to be the injury intended by the insured and that it does not cover injuries which may reasonably result from the intentional acts of the insured.
In the present case, the underlying complaint alleges the defendant " sexually groped, trapped in an area of the classroom against her will, threatened, attacked and physically assaulted " Sedgwick, conduct as to which harmful intent may be inferred as this conduct foreseeably produces the injuries alleged by Sedgwick. Furthermore, the defendant expressly states that he knew his actions against Alicia Sedgwick were wrong, and he understood how people would see his actions as bullying. See e.g., State Farm Fire and Casualty Co. v. Tully, 322 Conn. 566, 142 A.3d 1079 (considering insured's understanding of wrongfulness of conduct to determine intent).
The defendant's argument that the underlying complaint's allegations concerning his conduct lack credibility because it is alleged that they occurred in a classroom, where a teacher was present, are unavailing. As discussed above, the court is required to consider the allegations in the complaint and the duty to defend does not depend on whether the plaintiff in the underlying action will prevail. See Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 155-56.
" [W]here there is no duty to defend, there is no duty to indemnify . . ." DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849, 858 (2004).
CONCLUSION
For the reasons stated above, the plaintiff has shown that it is entitled to judgment as a matter of law. The plaintiff has no duty to defend or to indemnify the defendant. Accordingly, the motion for summary judgment is granted. It is so ordered.