Opinion
No. CV 04-0833416 S
July 18, 2005
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
The court heard argument at short calendar on June 14, 2005 in these two matters, concerning the defendant's motions for summary judgment (hereafter collectively referred to as the "motion"), which raise the same legal issues. Thereafter, the parties presented supplemental submissions, the last of which was filed on June 22, 2005. After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motions are granted.
I. Background
In his revised complaint, dated February 18, 2005 (#109), the plaintiff Mario Cabrera, as administrator of the estate of Luis DeLarca, alleges that defendant United Coastal Insurance Company (United) sold a liability insurance policy to Environmental Waste Industries, Inc. (EWI), which was in full force and effect on July 2, 1997 (policy). He also alleges that, on or about June 18, 1999, the plaintiff's decedent, DeLarca, sued EWI, a general contractor, claiming that EWI was liable to him because it had improperly provided scaffolding, erected scaffolding, and/or negligently supervised a work site at which DeLarca was injured in a fall on July 2, 1997. In the underlying complaint, DeLarca alleged that, at the time of the incident, he was an employee of Hazardous Environmental Abatement Technicians, Inc., and was working at the site as an asbestos remover. See Exhibit B to the motion, underlying complaint, dated June 18, 1999, first count, ¶ 2.
In his revised complaint Cabrera also alleges that, in May 2000, United was informed that EWI had failed to appear to defend against DeLarca's action and a demand was made that United appear and defend on EWI's behalf. United did not do so. In April 2003, after a hearing in damages, Cabrera was awarded judgment against EWI in the amount of $75,000.00. Here, the plaintiff claims that United is liable for the full amount of the judgment, pursuant to General Statute § 38a-321.
Section 38a-321 provides, in pertinent part, "Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation 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, damage or death occasioned by such casualty . . . Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, 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 the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."
Similarly, in his revised complaint, also dated February 18, 2005 (#110), plaintiff Jairo Martinez sets forth allegations concerning his fall at the same site on the same date, July 2, 1997. He alleges that he obtained judgment against EWI in the amount of $275,000.00.
In its answers and special defenses, dated February 28, 2005 (##110 and 111 in the respective files), United denies various allegations in the revised complaints, including specifically denying that it had a duty to defend EWI, and set forth several special defenses. These included that the plaintiffs are not entitled to coverage under the policy since neither they nor EWI provided notice to United within the policy period or 30 days thereafter, as required by the policy (fourth special defense); and that coverage here is excluded by various exclusions set forth in the policy (fifth, sixth and seventh special defenses). Additional references to the facts are set forth below.
II Standard of Review
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." Practice Book § 17-49. "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 . . . 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] . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2004).
"[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 material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The "standard of review with respect to insurance contracts is also well settled. 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.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351-52, 773 A.2d 906 (2001).
III Discussion A Claims Made Policy
In support of the motion, United argues that there is no coverage afforded by the policy because neither the plaintiffs nor EWI reported the claims to United within the policy period or within thirty days thereafter. The following facts are not in dispute. A copy of the policy was presented as part of United's Exhibit A. It states, on the declarations page, "THIS IS A CLAIMS MADE POLICY" and that the policy period was from April 1, 1997 to April 1, 1998. Under "SECTION I — COVERAGES," concerning bodily injury and property damage liability, section 1a of the policy, page 1, states, `This insurance applies only to `bodily injury' and `property damage' caused by an `occurrence' during the `policy period' and for which `claim' is first made against the `insured' and reported in writing to us during the `policy period' or within 30 days of the end of the `policy period.'" See Exhibit A to United's motion.
This statement is repeated on page 1 of the policy. See Exhibit A to motion.
Neither the plaintiffs nor EWI provided United with written notice of claim within the policy period or within 30 days thereafter. By letters dated August 17, 1999, over one year and four months after the policy expired, United received its first notice of claims from EWI concerning DeLarca's and Martinez's injuries. See affidavits of Robert H. Frazer, Exhibit A to the motions, ¶ 5. By letters from the plaintiffs' counsel, dated May 29, 2000, United received its first notices from the plaintiffs of the claims made under the policy. See affidavits of Robert H. Frazer, Exhibit A to the motions, ¶ 6.
As noted above, the plaintiffs admit that they sued EWI on or about June 18, 1999. See revised complaints, ¶ 5. In his deposition, EWI's president, Vincent Gauthier, Sr., stated that EWI did not provide notice to United until after EWI was served with legal process. See deposition transcript, Exhibit G to motion, p. 44. Also, the plaintiffs allege that, on May 29, 2000, United was informed that the suits were filed and that EWI had failed to appear to defend. See revised complaints, ¶ 6.
The plaintiffs admitted, in response to Interrogatory No. 4, that they do not contend "that a notice of claim was made to United Coastal within the Policy period or within 30 days of the end of the Policy period." See Exhibit D to motion, p. 8. While the plaintiffs do not claim that United received timely notice, they assert that they sent notice of their claims to EWI on December 23, 1997. See letters from plaintiffs' counsel to EWI, Exhibit C to the plaintiffs' memoranda of law in opposition to the motions (requesting EWI to turn over notice of the claims to its insurance carrier or legal representative). The plaintiffs do not contend that this notice complied with the policy language, quoted above, which required that the notice be "reported in writing to [United] during the `policy period' or within 30 days of the end of the `policy period.'" The plaintiffs also do not contend that the policy language contains any ambiguity as to the time in which to provide notice. Rather, they contend that "the failure of an insured to meet a contractual time limitation with respect to a `notice of claim' may be excused if the insurer suffered no material prejudice from the delay . . ." Hotkowski v. Aetna Life Casualty Co., 224 Conn. 145, 148, 617 A.2d 451 (1992), citing Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988). In their memorandum in opposition, page 7, the plaintiffs acknowledge that "[n]either our Appellate Court nor our Supreme Court has addressed the issue of the notice/prejudice rule in a claims made policy." Neither Hotkowski v. Aetna Life Casualty Co., supra, nor Aetna Casualty Surety Co. v. Murphy, supra, discusses the language of a claims made policy, such as is at issue here, where the provision of timely notice goes to the very essence of the coverage provided by the policy. Accordingly, as discussed below, our Supreme Court's language in those cases concerning prejudice is not applicable here.
Subsequent to our Supreme Court's decisions in Hotkowski v. Aetna Life Casualty Co., supra, and Aetna Casualty Surety Co. v. Murphy, supra, Judge Corradino addressed, in dicta, the distinction between a "claims made" insurance policy, such as that at issue here, and an "occurrence" insurance policy, which provides coverage for an occurrence or event which happens during the policy period. "An occurrence type of liability policy protects the policyholder from damages resulting from acts occurring during the period in which the policy is in effect, regardless of when the claim is brought . . . A discovery or claims made policy is one in which indemnity is provided no matter when the alleged error or omission or act of negligence occurred provided the misdeed complained of is discovered and the claim for indemnity is made against the insurance company during the policy period. A claims made type of liability policy protects the policyholder only against claims made during the life of the policy and claims or potential claims which are not made or reported during the policy are not covered." (Citation omitted.) ITC Investments, Inc. v. Employers Reinsurance Corporation, Superior Court, judicial district of New London at Norwich, Docket No. CV98-115128 (December 11, 2000, Corradino, J.).
"`[N]otice provided pursuant to the claims reporting requirements permits the insurer to more accurately fix reserves for future liabilities and to compute premiums with greater certainty. The resulting reduction in the insurer's potential liability exposure reduces the cost of coverage under the policy.' Insurance Law Practice, Appleman, Vol. 8, Supplem., 1996-1997 Pocket Part § 4731." ITC Investments, Inc. v. Employers Reinsurance Corporation, supra.
Judge Corradino noted also that a decision of the New Jersey Supreme Court, " Zuckerman [v.] National Union Fire Insurance Company, [ 100 N.J. 304], 495 A.2d 395 (NJ, 1985) is a leading case in this area. It notes occurrence policy premiums `have been proven to be grossly inadequate to cover the inflationary increase in the cost of settling claims asserted years later.' This is the result of inflation but is also due to `new theories of recovery in tort law and increased consumer awareness.' Claims made policies allow companies to `calculate risks and premiums with greater exactitude since the insurer's exposure ends at a fixed point, usually the policy termination date . . . This may result in lower rates for the insured.' Another benefit to the insured is that `since coverage is purchased on a contemporary basis, it can afford protection in current dollars for liability that may be based on negligence that occurred years earlier.' Id., pp. 399-401. On Page 400, Zuckerman cites the `vast majority of cases' that have held that claims made policies do not violate public policy." (Internal quotation marks omitted.) ITC Investments, Inc. v. Employers Reinsurance Corporation, supra.
In American Home Assurance Co. v. Abrams, 69 F.Sup.2d 339, 346-47 (D.Conn. 1999), the court also explained the distinction between and purposes behind the two types of policies. "The essence of a claims made policy is notice to the carrier within the policy period . . . Such a policy has the distinct advantage for the insurer of providing certainty that when the policy period ends without a claim having been made, the insurer will be exposed to no further liability. The insurer can better set `reserves' for potential losses. A claims-made policy also minimizes disputes with subsequent insurers as to when an ` occurrence' took place . . . In contrast, an `occurrence' policy protects the insured from liability for any act done while the policy is in effect . . . Coverage depends on when the negligent act or omission occurred, not when the claim was asserted. The giving of notice is only a condition of the policy . . . The major drawback of an `occurrence' policy is the lengthy and unpredictable `tail' of liability, since there is no defined time when coverage ends." (Citations omitted and internal quotation marks omitted.)
"`Claims made' policies are rarely issued to the unsophisticated. There exists no good reason not to allow the insurance buying public to opt to purchase a lower priced claims-made policy, nor is there any good reason to force the insurer who issues a `claims made' policy to undertake the additional and uncontracted-for risks associated with `occurrences' policies." ITC Investments, Inc. v. Employers Reinsurance Corporation, supra.
In ITC Investments, Inc. v. Employers Reinsurance Corporation, supra, the plaintiff also relied on our Supreme Court's decision in Aetna Casualty Surety Co. v. Murphy, supra, in support of the contention that the insurer had not been prejudiced by the time of its receipt of notice. As noted above, Aetna Casualty Surety Co. v. Murphy, supra, does not discuss the language of a claims made policy. After his exhaustive review of decisional law and treatises, Judge Corradino concluded that the notion that the insurer had not been prejudiced in its ability to defend against the claim as a result of the time of notice had no place in assessing the existence of coverage under a claims made policy. "Why is that? The simple answer is that would be converting a `claims made' policy into an `occurrence' policy and the insured not having bargained for such coverage or paid the premium is not entitled to it." ITC Investments, Inc. v. Employers Reinsurance Corporation, supra.
Judge Corradino also considered circumstances analogous to those existing here, where the alleged act of negligence occurs during the policy period, but late notice is provided. Plaintiffs in numerous cited cases argued that the failure of an insured to timely provide notice to the insurer cannot provide a valid defense to the insurer unless the insurer was substantially prejudiced as a result. The courts were not persuaded. See id. (Collecting cases.)
The reasoning of the Supreme Court of Iowa in Hasbrouck v. St. Paul Fire and Marine Ins. Co., 511 N.W.2d 364 (Iowa 1993) is instructive here. "The reason courts require an insurer of an occurrence policy to show prejudice from a late notice is because the purpose of the notice provision in such a policy is to give the insurer time to investigate the claim for defense or settlement purposes. When a late notice does not frustrate such a purpose, most courts will deem the notice provision waived. The `claims made' policy reporting provision serves a different purpose. It provides a certain date after which an insurer knows that it is no longer liable under the policy. So the insurer can more accurately fix its reserves for future liabilities and compute premiums with greater certainty . . . Prejudice for a late report of a claim in a `claims made' policy is therefore not an appropriate inquiry because such a consideration would defeat the fundamental concept on which `claims made' policies are premised." Id., 368. See Charles T. Main, Inc. v. Fireman's Fund Ins. Co., 406 Mass. 862, 866, 551 N.E.2d 28, 30 (Mass. 1990) (same).
Thus, the provision for a notice period in a claims made policy is material to the coverage which is provided. Extension thereof would constitute "an unbargained-for expansion of coverage, gratis, resulting in the insurance company's exposure to a risk substantially broader than that expressly insured against in the policy." (Emphasis in original.) Zuckerman v. National Union Fire Insurance Company, supra, 100 N.J. 324, 495 A.2d 368.
In Aetna Casualty Surety Co. v. Murphy, supra, 206 Conn. 417, our Supreme Court cited J. Appleman, Insurance Law and Practice (Appleman), for the concept that the purpose of a notice provision was to give the insurer an opportunity to make a timely and adequate investigation. The court stated that, in the absence of material prejudice, timely notice was not "a material part of the agreed exchange." (Internal quotation marks omitted.) Id., 418. That concept is inapplicable to a claims made policy, where, as discussed above, the time in which to give notice is material to, "fundamental" to, and is the very "essence of" the coverage provided.
This understanding of the purposes of a claims made policy is clearly set forth in the more recent supplement to Appleman, which was published after the edition which was cited by our Supreme Court in Aetna Casualty Surety Co. v. Murphy, supra. "A notice of claim that is made after the end of a policy period of a `claims made' liability policy, that covers only claims made and reported during the policy period, will be considered untimely and will bar coverage without the need for the insurer to show prejudice because the reporting requirement defines the scope of coverage under the policy." (Footnote omitted.) 8 Appleman, 1998 Cumulative Supplement § 4734, p. 10 (supplementing page 73 of volume 8 of the treatise). Appleman remains a standard treatise on insurance which our Supreme Court frequently cites as an authority. See Wasko v. Manella, 269 Conn. 527, 537 n. 8, 849 A.2d 777 (2004).
Likewise, 13 L. Russ T. Segalla, Couch on Insurance (3d. Ed. 1999) (Couch), § 186:13, p. 186-32, notes that claims made policies require "that the claim be made during the policy period in order for the loss to be treated as falling within the period of time covered by the policy." Such notice "is not simply part of [the] insured's duty to cooperate, but defines the limits of the insurer's obligation, and if there is no timely notice, there is no coverage." (Footnote omitted.) Couch, p. 186-33. No "showing of prejudice need be made in order for the insurer to avoid coverage of claims which simply are not made during the policy period." (Footnote omitted.) Couch, pp. 186-34-186-35. Our appellate courts also rely on Couch as an authority. See Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 548, 687 A.2d 1262 (1996); Lee v. Duncan, 88 Conn.App. 319, 325, 870 A.2d 1, cert. denied, 274 Conn. 902 (2005).
More recent decisions are to the same effect. "There is no requirement that an insurance company prove it was prejudiced due to lack of notice under a claims made policy . . . [P]rejudice for an untimely report in [the case of a claims made policy] is not an appropriate inquiry . . ." (Citation omitted and internal quotation marks omitted.) Catholic Medical Center v. Executive Risk Indemnity, Inc., 151 N.H. 699, 705, 867 A.2d 453, 459 (N.H. 2005). See Petersen v. TIG Insurance Co., Docket No. 8:01CV308 (United States District Court, D.Neb., October 28, 2002) ("existence of a cut-off date is integral to a claims-made policy"). In Pizzini v. American International Specialty Lines Ins. Co., 210 F.Sup.2d 658, 669 (E.D.Pa. 2002), the court noted that only two cases have extended a "notice-prejudice rule" to claims made policies, both where state statutes expressly required liability insurance policies to include a notice/prejudice provision requiring the showing of prejudice. Pennsylvania did not have such a statute. See id. The plaintiffs here do not contend that Connecticut has such a statute either.
Based on the above-cited authority, the court concludes that it may not import a prejudice requirement into the unambiguous policy language here. To do so would constitute an impermissible, material re-writing of the claims made coverage provided by the policy. See Moore v. Continental Casualty Co., 252 Conn. 405, 414, 746 A.2d 1252 (2000).
The undisputed facts show that United was not provided with notice within the time period set forth in the policy. As a result, there is no coverage for the plaintiffs' claims. United has met its burden to show that it is entitled to judgment as a matter of law.
B Presumption of Prejudice
Even if prejudice were a relevant consideration here, United would still be entitled to summary judgment, since, in response to the motion, the plaintiffs have not met their burden of proof. The plaintiffs have presented no affidavit setting forth a factual basis for their claims that the insurer was not materially prejudiced by the delay in the provision of notice.
As our Supreme Court stated in Hotkowski v. Aetna Life Casualty Co., supra, 224 Conn. 148-49, "[a]lthough we held, in Aetna Casualty Surety Co. v. Murphy, supra, that the failure of an insured to meet a contractual time limitation with respect to a `notice of claim' may be excused if the insurer suffered no material prejudice from the delay, we also held that prejudice to the insurer will be presumed. Id., 419-20. We expressly imposed upon the insured the burden of establishing a lack of prejudice to the insurer. Id. In accordance with this allocation of the burden of proof, in Aetna Casualty Surety Co. v. Murphy, supra, we affirmed the decision of the trial court granting the insurer's motion for summary judgment because the affidavit submitted by the insured `contained no factual basis for a claim that [the insurer] had not been materially prejudiced by [the insured's] delay.' Id., 420-21. In the present case, the insured filed no affidavit in opposition to the insurer's motion for summary judgment. Because the insured has, therefore, failed to sustain his burden of making the requisite factual showing regarding absence of prejudice to the insurer, this contention is not a viable response to the motion for summary judgment."
Here, where their claims are premised on General Statute § 38a-321, the plaintiffs stand in the shoes of the insured. Their responses to the motion are similarly lacking. They have not shown that Coastal was not materially prejudiced by the delay. In view of the presumption of prejudice, their submissions are insufficient to raise a material issue of fact as to this issue.
Instead of providing such evidence, the plaintiffs argue that there can have been no prejudice to United since, if United had provided a defense to their claims made against EWI, as a matter of law there could have been no judgments entered against EWI. They rely on Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003), which reiterated that "[a]s a general rule, an employer is not liable for the negligence of its independent contractors." (Internal quotation marks omitted.) Further, they contend that since the only basis for coverage was the alleged vicarious liability of EWI for the negligence of its subcontractor, none of the exceptions to this general rule would apply. See id., 518. See plaintiffs' supplemental submission (letter), dated June 21, 2005. The exceptions listed in Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518, included: "[i]f the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury." Id. In addition, the court added, " So too, the contractee or proprietor will be liable for injury which results from his own negligence." (Emphasis by the Supreme Court.) Id.
The plaintiffs' argument ignores the allegations made in the underlying complaints against EWI. For example, in his underlying complaint, dated June 18, 1999, first count, DeLarca set forth allegations of EWI's negligence which do not necessarily depend on vicarious liability. In paragraph 5c, DeLarca alleged that EWI, its agents, servants and/or its employees, knew, or in the exercise of reasonable care and inspection, should have known of the dangerous and defective condition of the scaffolding and should have taken measures to remedy and correct this condition, but failed to do so in a timely manner. In paragraph 5d, it was alleged that EWI failed to warn workers using the scaffolding of its dangerous and defective condition. Paragraph 5e alleged that EWI failed to properly erect the scaffolding and paragraph 5f alleged that it gave improper instruction and supervision in the erection of the scaffolding. Also, in his third count, DeLarca claimed that EWI was liable to him based on product liability theories. The same allegations against EWI were made in Martinez's complaint. See Exhibit B to United's motion.
In view of such allegations, it is entirely speculative for the plaintiffs to now contend that if United had provided a defense to EWI in the underlying actions, judgments would not have entered in their favor. Also, it is by no means clear that none of the exceptions to the general rule listed in Pelletier v. Sordoni/Skanska Construction Co., supra, would have applied. This speculative argument is no substitute for the evidence of lack of prejudice which the plaintiffs were required to present to rebut the presumption of prejudice.
The plaintiffs' reliance on Ray v. Schneider, 16 Conn.App. 660, 663-65, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988), for their vicarious liability argument, is also misplaced. In Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 527, our Supreme Court stated that Ray v. Schneider, supra's holding, "that the exceptions to the rule of a general contractor's nonliability do not extend to employees of the general contractor's independent subcontractor . . . is simply inconsistent with our law permitting employees of subcontractors to sue general contractors . . ." Pelletier v. Sordoni/Skanska Construction Co., supra, was issued on July 1, 2003, after the entry of the underlying judgments against EWI were entered. Nevertheless, there is no basis on which to assume that, prior to Pelletier v. Sordoni/Skanska Construction Co., supra, a trial court, in considering the underlying allegations made against EWI, would have viewed Ray v. Schneider, supra, as controlling and entered judgment against the plaintiffs. Indeed, prior to Pelletier v. Sordoni/Skanska Construction Co., supra, in Reynolds v. Waters Construction Co., Superior Court, judicial district of New Britain at New Britain, Docket No. CV-99-0495698 S (June 19, 2001, Shapiro, J.), this court stated, " Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 757 (1988) . . ." involved the claim of an employee of an independent contractor for personal injuries sustained on a work site. The Appellate Court affirmed the trial court's decision in which it struck the plaintiff's claim for vicarious liability against the employer of the independent contractor. That case did not involve a general contractor's liability for its subcontractor's negligence."
C Exclusions
United also contends that it is entitled to summary judgment based on coverage exclusions which are set forth in the policy. Under "Exclusions," paragraph 2.e. of the policy (see Exhibit A to the motion, pp. 2-3) states that "[t]his insurance does not apply to: . . . `[b]odily injury' arising out of and in the course of employment to . . . (2) any other individual, without regard to employer, whose designated job duties require that they be in or at the site or location where the `insured' conducts those operations designated in Item 5 of the Declarations." Item 5 of the Declarations designates the operations covered as "Asbestos/lead abatement and general construction services." See Exhibit A to motion.
The policy defines "bodily injury" in Section V-Definitions, paragraph 6, as meaning "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." See Exhibit A to motion.
Exclusion 2.e. also states that it "applies: (1) Whether the `insured' may be liable as an employer or in any other capacity; (2) To any obligation, whether imposed by statute, common law, or contract, to share `damages' with or repay or indemnify someone else who must pay `damages' because of the injury; and (3) To any liability or `damages' that the named insured, any additional insured or any additional named insured is obligated to pay resulting from such `bodily injury.'" See Exhibit A to motion, p. 3. United asserts that, based on the clear language of this exclusion, there is no coverage for the alleged injuries to DeLarca and Martinez.
In the underlying complaints, DeLarca and Martinez alleged that, at the time they fell, they were employed at the site "by Hazardous Environmental Abatement Technicians, Inc. as . . . asbestos remover[s] performing work on said asbestos abatement project," where EWI was the general contractor. See Exihibit B to motion, underlying complaints, dated June 18, 1999, first count, ¶ 2.
In response, the plaintiffs claim that the Independent Contractors Endorsement to the policy modifies Exclusion 2v., which barred coverage for "[a]ny operations of independent contractors." See policy, Exhibit A to motion, p. 6. The Independent Contractors Endorsement states:
1) Delete exclusion v. under 2. Exclusions of COVERAGE A. Bodily Injury and Property Damage Liability.
2) It is hereby agreed upon and understood that coverage is included for the Named Insured only, for claims covered by this policy for which you become legally obligated and which arise out of actions of independent contractors to the Named Insured. No coverage of any kind shall be afforded to any independent contractors.
See Exhibit A to motion. The plaintiffs assert that the allegations in their underlying complaints were broad enough to include a claim that EWI negligently failed to supervise its independent contractor, citing paragraph 5f. See plaintiffs' memoranda in opposition, p. 9; See Exhibit B to motion, June 18, 1999 underlying complaint, first count, ¶ 5f alleging that EWI gave improper instruction and supervision in the erection of the scaffolding.
Our Supreme Court has provided direction in connection with the interpretation of insurance policy endorsements. "The court must interpret the insurance contract as a whole with all relevant provisions considered together . . . The insurance contract includes the printed form policy, declarations therein, and any endorsements thereto. In construing an endorsement to an insurance policy, the endorsement and policy must be read together, and the policy remains in full force and effect except as altered by the words of the endorsement; conversely the endorsement modifies, to [the] extent of the endorsement, the terms and conditions of the original insurance contract. If any irreconcilable conflict exists between provisions of the policy and provisions of an endorsement, then the latter must control." (Citations omitted and internal quotation marks omitted.) Schultz v. Hartford Fire Insurance Co., 213 Conn. 696, 705, 569 A.2d 1131 (1990). "Every provision is to be given effect, if possible, and no word or clause eliminated as meaningless, or disregarded as inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it." (Internal quotation marks omitted.) Id., 706. "In construing an insurance policy, the court must not ignore or disregard any provision that can be reconciled with other parts of the policy nor should a court interpret a single provision or sentence in a policy and attach to it a greater significance than is intended by the whole terms of a policy." Id., 704. "[E]ach and every sentence, clause, and word of a contract of insurance should be given operative effect. Since it must be assumed that each word contained in an insurance policy is intended to serve a purpose, every term will be given effect if that can be done by any reasonable construction." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002).
Contrary to these principles of insurance policy interpretation, the plaintiffs' interpretation of the language in the Independent Contractors Endorsement ignores that part of it which states that "coverage is included for the Named Insured only, for claims covered by this policy." The endorsement specifically deletes Exclusion 2.v., but it does not modify Exclusion 2.e., quoted above. It does not provide additional coverage for bodily injury claims which are excluded by Exclusion 2.e. It does not negate Exclusion 2.e. Rather, it simply states that "for claims covered by this policy" there is coverage for claims which "arise out of actions of independent contractors to the Named Insured." See Independent Contractors Endorsement, quoted above.
The court is unpersuaded that the Independent Contractors Endorsement conflicts with Exclusion 2.e. or that there is any ambiguity created thereby. "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." Gould v. Mellick Sexton, 263 Conn. 140, 151, 819 A.2d 216 (2003).
The plaintiffs rely on their claims for bodily injuries, which they assert were covered by the policy, and state that there is no evidence that asbestos-related injuries or emotional distress were the bases for the underlying judgments. See memoranda in opposition, p. 10, and pp. 9-10. The record before the court shows that coverage for DeLarca's and Martinez's bodily injury claims was precluded by Exclusion 2.e. As noted above, in their underlying complaints against EWI, they alleged that, at the time they fell, they were employed at the site by Hazardous Environmental Abatement Technicians, Inc. as asbestos removers performing work on the asbestos abatement project. There is no coverage under the policy for bodily injuries to individuals, such as DeLarca and Martinez, whose designated job duties required that they be in or at the site or location where the insured, EWI, conducted the operations which were designated in Item 5 of the Declarations, which defined such operations as "Asbestos/lead abatement and general construction services." See Exhibit A to motion.
In view of the plaintiffs' reliance on bodily injury claims, to the exclusion of asbestos-related injuries and emotional distress, the court need not consider United's other arguments, that policy Exclusions 2.f and 2.w. preclude coverage for claims arising from exposure to asbestos and for mental anguish and emotional distress, respectively.
Finally, the plaintiffs argue that United had a duty to defend EWI and failed to do so. As noted above, in its answers and special defenses, paragraphs 6 and 8, United denied that it had a duty to defend EWI.
Our Supreme Court recently reiterated the principles which govern the duty to defend. "As we repeatedly have stated, the duty to defend is considerably broader than the duty to indemnify . . . [A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations 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 . . . Moreover, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case . . . Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy. Because the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify." (Citations omitted; emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire And Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004).
As explained above, DeLarca's and Martinez's allegations in the underlying complaints of bodily injuries incurred in the course of their work as asbestos removers fell squarely within the policy's coverage exclusion for such claims. United had neither the duty to defend, nor the duty to indemnify. Under these circumstances, United also is entitled to summary judgment in both cases on the basis of the exclusion.
CONCLUSION
There is no genuine issue as to any material fact. United is entitled to judgment as a matter of law. United's motions for summary judgment are granted. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT