Summary
finding the phrase “care, custody or control” in an exclusion to be ambiguous and interpreting it not to exclude coverage where insured police officer misled three young women to pose for nude photographs as part of a fictitious sting operation, and stating the young women “were always free to leave, free to stop participating in the ‘sting operations' and do not seem to be in any way in the custody, control or care of” the insured
Summary of this case from Valley Forge Ins. Co. v. FieldOpinion
No. CV 05-4013240-S
February 21, 2007
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DATED OCTOBER 21, 2006
This is a Declaratory Judgment action brought by the plaintiff, (hereinafter also "CIGA") seeking to deny insurance liability coverage to James F. Daigle, Jr. (hereinafter also "Daigle"), the City of Norwich (hereinafter also "Norwich"), Louis F. Fusaro, the Chief of Police in the City of Norwich, (hereinafter also "Fusaro"), Police Officer, Mark Lounsbury (hereinafter also "Lounsbury") and the Norwich Police Department (hereinafter also "Police"). The plaintiff has also named as defendants Melanie Wilson, Theresa Earl and Kristen Ejchorszt, (hereinafter also "Wilson, Earl and Ejchorszt") who are the plaintiffs in three underlying actions against the aforementioned defendants. These three women currently have lawsuits pending in the United States District Court for the District of Connecticut alleging that between September 2000 and November 2001 they each took part as volunteers in a Police undercover, underage alcohol purchase "sting" operations in which Daigle persuaded them to pose for nude and/or partially nude photographs under the pretext that such photographs were necessary for the operations. They also allege that they were persuaded by Daigle to pose as aforementioned for a fictitious undercover operation by the Police as part of an investigation into a pornography ring. The plaintiff herein now moves for summary judgment claiming that there are exclusions in the professional police liability policies issued to the City of Norwich that releases the plaintiff from any obligation to defend the defendants, excluding the three women. The plaintiff also claims that certain defendants were not insured under the policies. Defendant Wilson has been defaulted for failure to plead and defendant Earl has been defaulted for failure to appear. The memoranda of law were filed by the other parties, reply memoranda were filed, and this Court held a hearing on the plaintiff's motion for summary judgment on February 5, 2007.
FACTS
As stated above, Officer Daigle, then a police Sargent and subsequently a police Lieutenant, persuaded Wilson, Earl and Ejchorszt, hereinafter also the ("claimants"), to pose for nude and/or partially nude photographs misrepresenting to them that the photographs were necessary for the undercover operations. Some of the photographs, taken by Daigle at his home, were full frontal and rear nude photographs, Daigle telling them that the photographs were necessary to demonstrate that the claimants were not wearing a wire at the time of their participation in the undercover operations. This, of course, was false. Ejchorszt further alleged that during the operation, Daigle touched her breast while taping a body microphone to her. The claims against Daigle and the other Norwich defendants inter alia is for invasion of privacy, assault and battery, intentional misrepresentation, invasion of privacy by false light, libel per se, libel, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of substantive due process rights under federal civil rights statutes, and sexual harassment. Against Norwich, the Police and Fusaro, the claims are for negligent training and supervision of Daigle.
The Legend Insurance Company issued Law Enforcement Professional Liability Policies to Norwich with effective dates covering the incidents alleged. The pertinent language of both polices are identical and are more fully set forth on Schedule A attached hereto and made a part hereof.
On July 25, 2003 The Commonwealth Court of Pennsylvania found Legend Insurance Company to be insolvent and ordered that it be liquidated. CIGA subsequently succeeded to the rights and duties of Legend Insurance Company.
STANDARD OF REVIEW
"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472, A.2d 257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488, CT Page 3209 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marked omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
" [C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two (equally responsible) interpretations, that which will sustain the claim and cover the loss, must in preference, be adopted . . . [Thus rule of construction favorable to the insured extends to exclusion clauses." (Emphasis added.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519 (2004). It is, therefore, well settled law in Connecticut that ambiguity in an insurance policy is to be construed against the insurance company and in favor of the insured.
ISSUES AND FINDINGS I. WHO IS INSURED?
At the beginning of SECTION I-LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE, the policy states that CIGA will pay those sums that the insured become legally obligated to pay as damages because of bodily injury, property damage, or personal and advertising injury to which this insurance applies.
"We will have the right and duty to defend the insured against any `suit' seeking those damages."
Section 1a. goes on to say that CIGA will have no duty to defend for these damages if the insurance does not apply to them.
Section 1b. states that the insurance policy applies to the damages from bodily injury, property damage, or personal and advertising injury only if they are caused by a wrongful act that takes place in the coverage territory and arises out of the law enforcement activities of your insured law enforcement agency, including the operation, maintenance or use of any jail or any other detention facility.
Wrongful act is defined as:
a. Any actual or alleged act, error, omission, misstatement or misleading statement, negligent or breach of duty; or
b. any offense included within the definition of personal and advertising injury in the course of the enforcement activities of the insured law enforcement agency.
Paragraph a which refers to misleading statements which Daigle is accused of making and the neglect by the Police Department and the City to properly supervise Daigle all fall within the definition of wrongful act. Paragraph b includes any offense included within the definition of personal and advertising injury. Taking the photographs and publishing them falls under this category.
In SECTION V — DEFINITIONS, Paragraph 7 (there doesn't seem to be a paragraph 3 or a paragraph 6) defines personal and advertising injury stating that "it means injury including consequential `bodily injury' arising out of one or more of the following offenses":
Daigle is at least accused of Paragraph d "Oral or written publication of material that slanders or libels a person . . ." Nude photographs which were shown to people other than Daigle is a publication of the material, namely the photographs.
Paragraph e "Oral or written publication of materials that violates a person's right of privacy." Daigle committed this offense by his publication of nude photographs of the claimants which certainly violates these claimants' rights of privacy.
Paragraph i is the offense of "Violation of any person's civil rights protected under any statute, law or regulation." The complainants in the underlying case in federal court claim a violation of their civil rights under a 1983 claim.
Paragraph k. "Assault and battery" is an offense violated by Daigle. Although he did not physically assault the claimants except for touching one of the claimant's breast, Daigle is accused of sexual harassing them through the photographs and, therefore committed an assault. Assault does not necessary require physical contact.
SECTION II — WHO IS AN INSURED Daigle is an (a) agent or employee of the insured law enforcement agency because he was acting on behalf of the agency and within the scope of his duties. "Scope of his duties" at the very least is ambiguous and under aforementioned law, ambiguity in an insurance policy is construed in favor of the insured. It also includes, as an insured, an employee while acting outside the scope of his employment in departmentally approved activities. This paragraph includes Daigle even if he is acting outside the scope of his employment which is contrary to subparagraph (a) which covers him if he is acting within the scope of his duties. This again is ambiguous. In one paragraph he is covered if he acts within the scope of his duties, and in the next paragraph he is covered if he is acting outside the scope of his employment. Therefore, he is insured whether he is acting within or without the scope of his employment or duties. As to whether or not he was involved in departmentally approved activities, Chief Fusaro's affidavit indicates that the so-called investigation of a pornography ring (which apparently didn't exist) was not a departmentally approved activity. However, the liquor sale sting certainly was, and Daigle may have had the apparent authority to conduct an alleged investigation into a pornography ring.
Accordingly, Daigle, the Chief of Police and the Police Department and the City of Norwich are all insured under SECTION I-LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE AND/OR SECTION II-WHO IS AN INSURED. Officer Lounsbury is also an insured.
II. WHO IS EXCLUDED?
It should be noted that the claimants are not insureds under this policy. It is Daigle, the other employees of the Police, the Police Department of the City of Norwich and the City of Norwich for acts done or failures to act. There is coverage as described above which means that unless the exclusions apply, it would be the duty of the plaintiff to provide coverage and to defend and indemnify the insured for any damages for which they are held liable in the federal case against Daigle, the Police, the Police Department, Chief Fusaro and the City of Norwich, etc.
Note that this a liability policy, the question being whether the defendants (other than the claimants) are covered for actions or inactions regarding the claimants.
The first "exclusion" is Paragraph (3) under SECTION I — LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE. This paragraph excludes bodily injury or personal and advertising injury suffered by the City of Norwich, the Police Department and the employees of same as well as elected or appointed officials, members of any board or commission, etc. listed under Paragraph (3)(a)(I). None of these apply to the non claimant defendants because there is no allegation that any of them have been injured, etc. The only possible application as to the exclusion of the claimants is that included in no coverage for bodily injury or personal and advertising injury as auxiliary or volunteer officers. This obviously refers to volunteer law enforcement officers which are mentioned in Paragraph (2). There is no definition of volunteer law enforcement officer. The term is ambiguous, and under Connecticut law, ambiguity is to be construed in favor of the insured. This would, therefore, exclude the claimants from this section.
EXCLUSIONS
Exclusions are found under SECTION I-LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE, Paragraph 2. which states in pertinent part: "This insurance does not apply to:
j. Sexual Abuse.
`bodily injury,' `property damage,' or `personal and advertising injury' arising out of:
1. the actual or threatened sexual abuse or molestation by anyone of any person while in the care, custody or control of any insured, (emphasis added) or
2. the negligent employment, investigation, supervision, reporting to the proper authorities, or failure to so report or retention of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraph (1) above.
It appears from the manner in which this is set forth in the policies, that paragraph j is entitled Sexual Abuse and continues under Sexual Abuse the portion about bodily injury, property damages or personal and advertising injury, etc. If the exclusion is simply for Sexual Abuse, it is not defined and is, therefore, ambiguous.
More likely, paragraph j with the above paragraphs (1) and (2) are taken together. If so, the words "in the care, custody or control of any insured" are not defined and are clearly ambiguous. These claimants were always free to leave, free to stop participating in the "sting operations" and do not seem to be in any way in the custody, control or care of Daigle or any of the other defendants.
Paragraph (2) refers to conduct which would be excluded by paragraph (1). Therefore the exclusion in paragraph (2) is dependent upon the exclusion in paragraph (1). Because, as stated several times before, ambiguity in an insurance policy must be construed in favor of the insured, this Court concludes that the ambiguity of "care, custody or control" is to be construed in favor of the insured, thereby making this exclusion not applicable under paragraphs (1) and (2).
CONCLUSION
As a matter of law, the defendants Daigle, Police, City of Norwich, Fusaro and Lounsbury are "insured" under the policies, and the exclusions do not apply.
Accordingly, the plaintiff is not entitled to judgment as a matter of law. Its Motion for Summary Judgment is denied.
SCHEDULE A SECTION I-LAW ENFORCEMENT PROFESSIONAL LIABILITY COVERAGE
1. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury," property damage," or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury," "property damage" or "personal and advertising injury" to which this insurance does not apply . . .
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b. This insurance applies to "bodily injury," "property damage," or "personal and advertising injury" only if they are caused by a "wrongful act" that:
(1) Takes place in the "coverage territory" during the policy period; and
(2) Arises out of the law enforcement activities of your insured law enforcement agency, including the operation, maintenance or use of any jail or any other detention facility.
Insured law enforcement activities include the activities of "employees" of your insured law enforcement agency:
(1) While acting outside the scope of their employment in departmentally approved activities; . . .
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2. Exclusions
This insurance does not apply to:
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j. Sexual Abuse.
"Bodily injury," "property damage," or "personal and advertising injury" arising out of:
(1) The actual or threatened sexual abuse or molestation by anyone of any person while in the care, custody or control of any insured, or
(2) The negligent employment, investigation, supervision, reporting to the proper authorities, or failure to so report, or retention of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraph (1) above.
SECTION II-WHO IS AN INSURED
1. You are an insured for the activities of your law enforcement agency named in the Declarations.
2. The named law enforcement agency is an insured.
3. Each of the following is also an insured:
a. (1)
(a) Agents or "employees" of the insured law enforcement agency while acting on behalf of the agency and within the scope of their duties; and
CT Page 3215
(b) "Employees" while acting outside the scope of their employment in departmentally approved activities.
(2) Auxiliary volunteer law enforcement officers, but only while acting within the scope of their duties as such and at the direction of your professional law enforcement personnel.
(3) However, none of these "employees" or auxiliary or volunteer law enforcement officers is an insured for:
(a) "Bodily injury or "personal and advertising injury":
(i) To you, to any of your elective or appointed officials or members of any board or commission or agency of yours, or to a co-"employee" or auxiliary or volunteer officer while that co-"employee" or auxiliary or volunteer officer is either in the course of his or her employment or performing duties related to the conduct of your business;
(ii) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in paragraphs 3. (a)(i)(ii) above.
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SECTION V — DEFINITIONS
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2. "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
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4. "Employee" includes a "leased worker." "Employee does not include a "temporary worker."
5. "Leased worker" means a person leased by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker."
7. "Personal" and "advertising injury" means injury including consequential "bodily injury," arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
e. Oral or written publication of material that violates a person's right of privacy;
f. The use of another's advertising idea in your "advertising"; or
g. Infringing upon another's copyright, trade dress or slogan in your "advertisement";
h. False or improper service of process;
i. Violation of any person's civil rights protected under any statute, law or regulation;
j. Violation of any person's property rights; or
k. Assault and battery.
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10. "Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions.
11. "Wrongful act" means:
a. Any actual or alleged act, error, omission, misstatement or misleading statement, neglect or breach of duty; or
b. Any offense included within the definition of "personal and advertising injury," in the course of the law enforcement activities of the insured law enforcement agency . . .