Summary
In Colonial Penn Ins. Co. v. Dimitriadis, supra, 36 Conn. L. Rptr. 62, the plaintiff, an insurer of the defendant, sought a declaratory judgment that it did not have to provide coverage for the claim asserted by the defendant.
Summary of this case from Sentry Claims Service v. BotwickOpinion
No. CV02 039 29 08
November 14, 2003
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The defendant in this action, James Dimitriadis, was sued by his granddaughter (victim) for injuries and damages she allegedly sustained as a result of inappropriate sexual assaults and/or advances by Dimitriadis. Her suit is currently pending in this court as CV 01 0388163 Susan Dimitriadis v. James Dimitriadis.
Upon being sued, Dimitriadis sought coverage from Colonial Penn under a homeowner's insurance policy which was in effect at all relevant times mentioned in the victim's lawsuit.
The plaintiff herein, Colonial Penn Insurance Company, commenced this action pursuant to Section 52-29 C.G.S., seeking a declaratory judgment that there is no coverage for the claim asserted by the defendant, James Dimitriadis, under the homeowner's insurance policy issued to Dimitriadis by Colonial Penn.
The plaintiff's request for a summary judgment in this case is made on the grounds that the victim's complaint against Dimitriadis consists entirely of allegations of intentional acts and that intentional acts are expressly excluded from coverage in Dimitriadis' homeowner's policy.
The Complaint in the victim's case against Dimitriadis is in three counts and is dated November 19, 2001. The First Count alleges intentional sexual assault and the Second Count alleges intentional infliction of emotional distress. Count Three of the victim's complaint alleges that Dimitriadis' conduct constituted negligent infliction of emotional distress.
On December 13, 2001, after being advised of the claim, Colonial Penn wrote a letter to Dimitriadis advising him that in view of the allegations of intentional conduct in those two counts, the policy did not provide coverage and the insurer would not indemnify him for any award against him on either of those two counts. As to Count Three, alleging negligent infliction of emotional distress, Colonial Penn stated in the same letter that it would assign an attorney "to answer count 3 of the complaint . . . and will also indemnify you and defend you for Count 3 only."
The insurer argues that because the allegations against Dimitriadis in Count One and Count Two allege intentional acts, the insurer has no contractual duty to either defend or indemnify the insured. The insurer further argues that while the remaining count (Count Three) alleges negligent infliction of emotional distress, that allegation is founded upon intentional acts of Dimitriadis and, therefore, it also is not covered by the insured's homeowner's policy.
SUMMARY JUDGMENT
"Pursuant to Practice Book § 17-49, 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." (Internal quotation marks omitted.) Fojtik v. Hunter, 265 Conn. 385, 389 (2003). "A material fact is a fact that will make a difference in the result of a case." River Dock Pile, Inc. v. Insurance Co. of North America, 57 Conn. App. 227, 231 (2000).
"[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . ." Hryniewicz v. Wilson, 51 Conn. App. 440, 443 (1999). "[T]he party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." Id. In determining whether there is a material issue of fact, "the court must view the evidence in the light most favorable to the nonmoving party." Connell v. Colwell, 214 Conn. 242, 246-47 (1990).
"In ruling on a motion for summary judgment, the 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 (1988).
It is Colonial Penn's position that no issues of material fact exist as to its claims that: (1) the acts imputed to Dimitriadis in the victim's complaint involve either intentional acts or acts which resulted in the infliction of emotional distress or other non-physical injuries on the part of the victim; (3) that such acts are expressly excluded from coverage by the terms of the policy; (4) that the plaintiff Colonial Penn owes no duty to either defend or indemnify Dimitriadis; and (5) that as a matter of law, there is no coverage and the motion for summary judgment should be granted.
POLICY COVERAGE
The plaintiff, Colonial Penn has offered unrefuted evidence that the homeowner's policy in question does not include coverage for intentional acts by the insured, James Dimitriadis. That provision is included in the portion of the policy. The policy provides, in relevant part, "personal liability" and "medical payments to others do not apply to bodily injury or property damages . . . expected or intended by the insured." See policy Section II, Exclusions, as set forth in Exhibit B of plaintiff's brief.
"[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." Keithan v. Massachusetts Bonding Ins. Co., 159 Conn. 128, 138 (1970).
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 . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Emphasis added), Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 517 (1956), as cited in Springdale Donuts, Inc. v. Aetna Casualty Surety Co., 247 Conn. 801, 807-08 (1999).
"Thus, only if the underlying complaints set forth a cause of action within the coverage of the plaintiff's . . . policy did the policy obligate the defendants to defend the plaintiff in those actions." Id., p. 808.
Case law is quite clear that where the provisions in a policy of insurance 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.
In a case remarkably similar to the instant matter, Moore v. Continental Casualty Co., 252 Conn. 405 (2000), our Supreme Court considered the issue of whether summary judgment should be granted when the there is a denial of coverage by an insurer regarding "intentional acts," including the allegation of negligent infliction of emotional distress.
In that case the court held, "It is undisputed that [the intentional] counts do not trigger a duty to defend under the plaintiff's homeowner's insurance policy because they are excluded under the policy's `expected or intended' exclusion." Moore, supra, p. 408.
The court then took up the issue of whether, as a matter of law, a claim for emotional harm can properly be considered a claim for "bodily injury" under the terms of a homeowner's insurance policy.
In affirming the decision of the Appellate Court, the Supreme Court ruled that, "an allegation of emotional distress . . . does not trigger a duty to defend under the coverage for `[b]odily [i]njury,' which is defined in the insurance policy as `bodily harm, sickness or disease . . .'"
"The majority rule is that, as a matter of law, the term `bodily injury' in a liability policy does not include emotional distress unaccompanied by physical harm. See American Foreign Ins. Co. v. Church Schools in the Diocese of Virginia, 645 F. Sup. 628, 632-33 (E.D.Va. 1986) (no duty to defend against claim for emotional distress arising out of teacher's alleged improper sexual conduct)." Moore, supra, pp. 411-12.
The decision that emotional distress (Count Three) is not a "bodily injury" and, therefore, not covered under the defendant's policy, coupled with the ruling that intentional acts (Counts One and Two) are not covered, would be sufficient to permit the court to grant Colonial Penn's motion for summary judgment but for the defendant's remaining claim — that the insurer has a legal obligation to defend and indemnify the insured, having indicated in writing on December 13, 2001 that it would do so as to Count Three only, as noted herein above. The defendant argues at some length in his brief that he has acted in reliance upon that promise of not only representation but also indemnification and that the insurer should now be estopped from doing otherwise.
The defendant's argument that once in, the insurer must remain in and at least defend the defendant as to the victim's Count Three is purely an equitable argument. The defendant cites no case law or statute which would obligate Colonial Penn to do what it represented to the defendant it would do in its letter of December 13, 2001.
Colonial Penn does not even mention that argument in its brief. It relies strictly on the precedent cases which deal exclusively with the issues of its contractual duty, if any, to the insured. The court cannot find, as a matter of law, that the initial involvement by Colonial Penn in the defense of this action obligates it to remain in the case after it has made sufficient determination that it has no legal or contractual obligation to do so.
"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." Flint v. Universal Machine Co., 238 Conn. 637, 646 (1996). "If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." Schwartz v. Stephenson, 37 Conn. App. 581, 585 (1995).
For the reasons stated above, the court finds that the movant has established that as to its claim that it has no contractual duty to defend or to indemnify the insured, there is no genuine issue of fact. The court further finds that the insured has failed to establish its adverse claim by showing that there is a genuine issue of fact and has provided no evidence to establish such issue of fact.
For the foregoing reasons, the plaintiff's motion for summary judgment is hereby granted.
BY COURT,
JOSEPH W. DOHERTY, JUDGE