Opinion
No. CV08-4010532S
August 13, 2009
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Amica Mutual Insurance Company, brings this action in the nature of a declaratory judgment, concerning a claim initiated by three of the defendants, and made returnable July 29, 2008. In the underlying action, the three plaintiffs were permitted to pursue their causes of actions using pseudonyms, due to the nature of the claim.
Counts one and two of the underlying action are brought by the defendant John Doe, in his capacity as parent and next friend of his minor daughter, Jane Roe, against Jennine A. Wetmore, a/k/a Jennine Denezzo.
Jennine Wetmore operated a licensed family day care center at her Milford residence. Her minor son, who is not named as a defendant in the underlying action, resided with her.
The minor plaintiff, Jane Roe, claims to have been sexually assaulted and abused by Jennine Wetmore's minor son, while she was a client of the day care center, and under the supervision of Jennine Wetmore. She claims that the alleged assault and abuse occurred in the spring of 2007.
It is alleged that the sexual assault and abuse occurred as a result of the negligence of Jennine Wetmore. In paragraph 11 of Count one of the Second Amended Complaint, it is alleged that Jennine Wetmore:
a. Failed to properly supervise the minor children in her care;
b. Left the Plaintiff Roe alone with the Defendant's minor son, who was not an approved day care substitute without supervising either of them;
c. Failed to keep her minor son separated from the Plaintiff Roe, while the Plaintiff Roe was in her care;
d. Failed to properly train her employees and substitutes regarding the care and supervision of the minor children at the Day Care;
e. Failed to inform the Plaintiffs John Doe and Jane Doe of the assault and abuse, when she knew it had occurred, thereby depriving the Plaintiffs John Doe and Jane Doe of the ability to act accordingly and remove the Plaintiff Roe from the Defendant's care;
f. Failed to inform the proper authorities that the assault and abuse had occurred, in violation of R.C.S.A. § 19a-87b-110(j)(3) and C.G.S. § 17a-101a;
g. Failed to use good judgment for the supervision of the Plaintiff Roe in violation of R.C.S.A. § 19a-87b-6(e);
h. Failed to provide child protection and/or failed to be responsible for the supervision of the Plaintiff Roe at all times while Plaintiff Roe was at the Day Care, in violation of R.C.S.A. § 19a-87b-10(b) and 19a-87b-10(j);
i. Left the presence of the Plaintiff Roe without making sure her substitute assumed the Defendant's responsibilities and was present with the Plaintiff Roe, in violation of R.C.S.A. § 19a-87b-10(h);
j. Failed to provide child protection and/or failed to be responsible for the supervision of Plaintiff Roe at all times while Plaintiff Roe was at the Day Care thereby negligently allowing her minor son to engage in sexual activity with the Plaintiff Roe, in violation of R.C.S.A. § 19a-87b-10(j).
Count two of the Second Amended Complaint involves claims of negligence per se, based upon regulations applicable to family day care centers.
The minor Plaintiff, Jane Roe, claims to have been injured as a result of the negligence of Jennine Wetmore. It is not claimed that Jennine Wetmore committed any acts of abuse, or that she is liable vicariously for the abuse and assault allegedly committed by her minor son.
Section 52-572(a), C.G.S. — "The parent or parents or guardian . . . of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause . . . injury to any person . . . shall be jointly and severally liable with the minor for the . . . injury to an amount not exceeding five thousand dollars . . ."
Counts three and four of the Second Amended Complaint are brought by John Doe and Jane Doe, in their individual capacities. Each claims to have suffered emotional distress, as a result of the negligence of Jennine Wetmore.
In this action Amica Mutual Insurance Company request a declaratory judgment, to the effect that it has no duty to either defend or to indemnify Jennine Wetmore, in the underlying action, based upon the terms and conditions of a Homeowners insurance policy (Policy # 680206-221UF), which it issued to Jennine Wetmore. The policy was in effect between February 4, 2007 and February 4, 2008.
Attica Mutual moves for summary judgment in this action, as to all of the claims raised by Jane Doe, ppa, John Doe and Jane Doe, in the underlying action against Jennine Wetmore. It maintains, as to the claims made by Jane Doe in the underlying action, that any damages were caused by sexual molestation, and are therefore not covered pursuant to the insurance policy.
It further maintains that the claims made by Jane Roe do not constitute an "occurrence" within the meaning of the applicable policy, the claimed injuries were expected or intended by its insured, and that notice of the claims of Jane Roe, John Doe and Jane Doe was not given to Amica Mutual in a timely fashion.
Concerning the claims of John Doe and Jane Doe made in their individual capacities, Amica Mutual claims that emotional distress does not constitute "bodily injury" within the meaning of the insurance policy, unless the emotional distress is accompanied by physical injury.
STANDARD OF REVIEW
A trial court must appropriately render summary judgment when documentary and other evidence demonstrate that there is no genuine issue of material fact, which remains between the parties, and that the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986). A material fact has been defined as one which will make a difference in the result. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402 (1987); Fogarty v. Rashaw, 193 Conn. 442, 445 (1984). In determining a motion for summary judgment, a court must view all of the evidence in the light most favorable to the non-moving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995).
Although the purpose of a motion for summary judgment is to test for the presence of contested issues of fact, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, under certain circumstances. Larobina v. McDonald, 274 Conn. 392, 401 (2005).
The interpretation of the provisions of an insurance contract involves a determination as to the intent of the parties as expressed by the language of the contract. Vitti v. Allstate Ins. Co., 245 Conn. 169, 174 (1998). However, unlike situations involving other types of contracts, where absent a statutory warranty or definite contract language, the intent of the parties involves a question of fact, the construction of provisions of a contract of insurance involves a question of law for the court. Peerless Ins. Co. v. Gonzalez, 241 Conn. 470, 483 (1997); Aetna Life Casualty Co. v. Bulaong, 218 Conn. 51, 58 (1991); Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634 (1979).
The mere fact that the parties to an insurance contract advocate different meanings, does not mean that the language of the policy is ambiguous. Kelly v. Figuerido, 223 Conn. 31, 37 (1992). However, when the words of an insurance contract are susceptible to two interpretations, that construction which will sustain the claim and cover the loss must be preferred and adopted. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 15 (1992); Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392 (1954).
Amica Mutual maintains that it is under no obligation or duty to either defend or indemnify Jennine Wetmore, based upon the allegations contained in the underlying complaint.
The obligation to defend does not depend upon whether the party to whom a defense is provided ultimately prevails in the underlying action. Instead, it depends upon whether the allegations in the complaint bring the person seeking a defense within the policy's coverage. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463 (2005). If the allegations contained in a complaint fall even possibly within the coverage offered, then the party must be defended. Moore v. Continental Casualty Co., 252 Conn. 405, 409 (2000).
The duty to indemnify, on the other hand, depends upon facts established at trial, and the theory upon which a judgment is actually entered. Board of Education v. St. Paul's Fire Marine Ins. Co., 261 Conn. 37, 48-49 (2002). While the absence of a duty to defend means that there is no duty to indemnify; DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88 (2004); it does not follow that finding a duty to defend must give rise to a duty to indemnify.
"SEXUAL MOLESTATION" LANGUAGE OF AMICA MUTUAL POLICY DOES NOT EXCLUDE A CAUSE OF ACTION BASED UPON NEGLIGENCE
Amica Mutual argues that the language of its policy does not provide coverage to Jennine Wetmore, because her son is alleged to have engaged in conduct constituting "sexual molestation."
The Amica Mutual policy language reads:
"This policy does not apply to . . .
7. Sexual molestation, corporal punishment or physical or mental abuse . . .
"Bodily injury . . . arising out of sexual molestation."
Jennine Wetmore's minor son was not named as a party in the underlying action. Nor does Jane Roe, ppa John Doe, seek to impose statutory liability upon the Day Care Center operation, based on the wilful or malicious acts of the minor son.
Any finding of liability against Jennine Wetmore must, of necessity, arise out of her negligent conduct. The Plaintiff, Jane Roe, may not recover based on proof of sexual misconduct or molestation by the minor son, in the absence of proof of negligence on the part of Jennine Wetmore. She must further demonstrate that Jennine Wetmore's negligence was a substantial factor in causing the injuries complained of.
Any liability, therefore, must arise out of negligence, and not sexual molestation.
Amica Mutual claims that the Connecticut Supreme Court decision in Community Action for Greater Middlesex County v. American Alliance Insurance Co., 254 Conn. 387 (2000), requires a finding that the "sexual molestation" exclusion contained in its policy applies to the claims of Jane Roe and her parents.
This claim is not persuasive.
Community Action involved a negligence claim, brought on behalf of a child who alleged that she had been sexually abused while attending a preschool program. Although there are similarities with the underlying complaint in this case, the provisions of the insurance policy construed in Community Action differs dramatically from the Amica Mutual policy. Community Action for Greater Middlesex County v. American Alliance Insurance Co., supra, 390 n. 6.
The policy provision reads:
"This insurance does not apply to bodily injury, property damage, advertising injury or personal injury arising out of:
"(a) the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of an insured, or "(b) the negligent
(i) employment
(ii) investigation
(iii) supervision
(iv) reporting to the proper authorities or failure to so report; or
(v) retention
of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above."
The Amica Mutual policy language excludes intentional, reckless and malicious acts as alleged against a defendant who is an insured under the policy (See Middlesex Mutual Assurance Co. v. Favreau, 2003 WL22234621 (Dewey, J.). The language of the policy, however, does not render the exclusion applicable in a situation where liability is predicated upon negligence, not allegations of sexual abuse of molestation by one who is not a party to the action.
THE UNDERLYING ACTION CONSTITUTES AN "OCCURRENCE," IS NOT "EXPECTED OR INTENDED," AND WAS TIMELY REPORTED TO AMICA MUTUAL
The Amica Mutual policy defines "occurrence" to mean:
"an accident . . . which results . . . in
a. Bodily injury or
b. Property damage."
The term "accident" has been defined as an unintended occurrence, or an unexpected happening. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590 (1990); Commercial Contractor's Casualty Co. v. American Ins. Co., 152 Conn. 31, 42 (1964).
Amica Mutual maintains that the sexual assault allegedly committed by Jennine Wetmore's minor son was intentional. Therefore, Amica Mutual argues, the underlying complaint does not set forth a cause of action which is covered by its policy. This claim fails to resonate.
The underlying action concerns allegations of negligence directed at Jennine Wetmore. The cause of action is not one of sexual battery, and no wilful, intentional or malicious acts are alleged to have been committed by the one defendant, Jennine Wetmore.
Jennine Wetmore neither intended that a sexual assault of the minor Jane Roe would occur, nor facilitated that alleged assault through wilful or intentional conduct. As to the defendant in the underlying action, all acts of omission or commission which are alleged can be described as unintended, or inadvertent.
Therefore, the underlying complaint describes an "occurrence" within the language of the Amica Mutual Insurance Company Policy.
Nor is Amica Mutual assisted by the claim that the injury to Jane Roe was "expected or intended." The policy does not apply to:
"1. Expected or Intended Injury
Bodily injury which is expected or intended by an insured."
Amica Mutual maintains that Jennine Wetmore's minor son is an "insured" under its policy, and that he intended to cause bodily injury to Jane Roe when he sexually assaulted and/or molested her.
Therefore, Amica Mutual argues, there is no coverage for Jennine Wetmore in the underlying action.
Amica Mutual contends that the sexual assault of a minor child, by its very nature, involves an intent to cause injury to the victim. United States Automobile Assoc. v. Marburg, 46 Conn.App. 99, 104 (1997). This claim is not well taken.
Marburg involved the sexual assault of a minor child by an adult. The court held that an adult, knowing the age of a minor victim, intended to cause the victim injury.
Here, both the alleged assaulter and the alleged victim, Jane Roe, were minors at the time of the alleged incident.
However, even if the presumption of an intent to injury expressed in Marburg is applicable to Jennine Wetmore's minor son, it is inapplicable to a situation in which the cause of action sounds in negligence, not intentional conduct. The Plaintiffs in the underlying action must prove both the sexual contact by the minor son, and that the negligence of Jennine Wetmore was a substantial factor in causing Jane Roe harm.
It can not be said, based upon a fair reading of the underlying complaint, that Jennine Wetmore intended to inflict injury upon Jane Roe. Furthermore, it is unnecessary to determine whether the exclusion would apply, in a situation where a minor plaintiff alleged an assault by another minor in the nature of sexual molestation.
The final claim of Amica Mutual concerning late notice of the claim involved in the underlying complaint is easily resolved. Notice of the claim was given promptly after the service of process, and was therefore tendered "as soon as practical," as required by the policy.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS ARE SUFFICIENT TO GIVE RISE TO A DUTY TO DEFEND
In order to prevail in claims of negligent infliction of emotional distress, John and Jane Doe must prove that Jennine Wetmore realized that her conduct involved an unreasonable risk of causing emotional distress, and that the distress, if caused, might result in illness or bodily harm. Parsons v. United Technologies Corp., 243 Conn. 66, 89 (1997); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978); Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 597 (1998). A cause of action by parents of a minor child who has been sexually assaulted was recognized, where the assault was committed by a defendant to whose care the minor had been entrusted. Doe v. Cuomo, 43 Conn.Sup. 222, 236 (Lavine, J.).
Amica Mutual claims that there is no coverage for these claims based upon the definition of "bodily injury" contained in its policy.
"bodily injury" means "bodily harm, sickness or disease, including required care, loss of services and death that results . . ."
Courts have determined that the term "bodily injury" in an insurance policy does not include emotional distress, which is unaccompanied by physical harm. Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 543 (2004); Moore v. Continental Casualty Co., supra, 413. Claims of bystander emotional distress do not constitute bodily injury. Taylor v. Mucci, 288 Conn. 379, 385 (2008).
Although a plaintiff need not actually sustain illness or bodily harm in order to prevail in a claim alleging negligent infliction of emotional distress, it must be demonstrated that the distress was severe, and that, if caused, it might cause or result in bodily harm.
Whether either John Doe or Jane Doe sustained bodily harm as a result of the incident described in the underlying complaint, can not be determined by way of summary judgment.
Although the proof at trial may well reveal that no bodily harm was sustained, and that Amica Mutual is under no duty to indemnify John or Jane Doe, a defense must be provided to Jennine Wetmore on these counts.
CONCLUSION
The motion for summary judgment, filed by the plaintiff, Amica Mutual Insurance Company, is DENIED.