Jones v. Penn-America Ins. Co.

Full title: MARTIN JONES v. PENN-AMERICA INSURANCE CO

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Jan 4, 2007

2007 Ct. Sup. 272 (Conn. Super. Ct. 2007)

Opinion

No. CV05-4011912-S.

January 4, 2007.

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

JERRY WAGNER, Judge Trial Referee.

In 2001 the plaintiff, Martin Jones, was stabbed by a bouncer during an altercation at Freddie's Cafe´ in Waterbury. In 2004, the plaintiff instituted an action against the cafe´ alleging that the business was negligent in its hiring and supervision of the bouncer. A default judgment for failure to appear was subsequently entered against the cafe´ and the plaintiff was awarded $323,567.48 in damages.

The plaintiff brought the present subrogation action against the defendant, the cafe´'s insurance provider, after attempts to collect the judgment from the cafe´ proved unsuccessful. In the plaintiff's four-count complaint, he alleges that the defendant's failure to defend the cafe´ in the previous suit constituted a breach of contract, negligence, reckless disregard for its duties, an unfair and deceptive act or practice under General Statutes § 38a-816(6) and unfair deceptive act or practice under General Statutes § 42-100b.

Defendant insurance company has filed this motion for summary judgment asserting that it is entitled to judgment as a matter of law on each count of the plaintiff's complaint because, in accordance with its policy's assault and battery exclusion (the exclusion), it was not required to indemnify or defend the cafe´ in the previous suit.

In opposition, the plaintiff counters that an issue of fact exists as to whether the exclusion was a part of the policy because that document's code number is not listed on the first page under the heading "Form(s) And Endorsement(s) Made A Part Of This Policy At The Time Of Issue." The plaintiff further argues that the motion should be denied because there is a genuine issue of material fact as to whether the exclusion is void as against public policy.

Both parties have submitted a copy of the policy.

I CT Page 273

The text at the bottom of the first page of the policy that follows the asterisk states that the section entitled "Form(s) And Endorsement(s) Made A Part Of This Policy At The Time Of Issue" does not include forms and endorsements shown in specific coverage part declarations. The code number for the exclusion at issue here, S2005 (11/97), is shown on the commercial general liability coverage part declarations. (See page six of the policy.) According to the terms of the document, the exclusion was not supposed to be listed on the first page of the policy, and plaintiff has failed to demonstrate that a genuine issue of fact exists as to whether the exclusion was a part of the policy. It clearly was.

II

The plaintiff relies on Travelers Indem. Co. v. Sonitrol Security, Superior Court, Judicial District of Hartford, Docket No. CV 044001676 (March 24, 2006, Keller, J.) [ 41 Conn. L. Rptr. 39], to support his assertion that fact finding is necessary to determine whether the assault and battery exclusion in the policy is void as a matter of public policy. That case, however, deals with the enforceability of a broad exculpatory provision whereby one party sought to relieve itself from the consequences of its own negligence, quite unlike the insurance exclusion in this case in a policy which sets forth the terms and scope of the cafe´'s insurance coverage. The terms and scope of the insurance varies with the premium costs. This kind of exclusion in an insurance policy has not been held to be violative of public policy and plaintiff has not raised a valid question of material fact with respect thereto.

Defendant's motion for summary judgment is granted.