Opinion
No. X10-UWY-CV-07-4014573-S
August 12, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#113)
Introduction
Plaintiff, Merrimack Mutual Insurance Company ("Merrimack"), alleges in Count Three of its Amended Complaint, dated November 28, 2007, that the Defendant, Jeffrey Ramsey, was an insured of a homeowner's policy issued by Merrimack for the period of August 22, 2004 to August 22, 2005. The Amended Complaint alleges that in 2007 Meghan Laporta filed a complaint (the "Laporta Complaint") against Jeffrey Ramsey involving an attack by Ramsey against Laporta resulting in injuries to Laporta. That complaint alleges that Ramsey visited Laporta as an invited guest, and without provocation, began stabbing himself and Laporta with a kitchen knife. The complaint here alleges that "[u]pon information and belief, Jeffrey Ramsey stabbed Meghan Laporta 24 times about the body, during which time, he broke one knife, used a second knife, and chased after her." Amended Complaint, Paragraph 9. Merrimack alleges that the homeowner's policy provided personal liability coverage pursuant to which Merrimack agreed to provide a defense to a suit for damages because of bodily injury caused by an occurrence. The policy provided that an "occurrence" means an "accident . . . which results . . . in 'Bodily injury.'" Amended Complaint, Paragraph 11. The policy also provided the following exclusion to coverage: "Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to "'bodily injury' or 'property damage:' . . . Arising out of sexual molestation, corporal punishment or physical or mental abuse." Amended Complaint, Paragraph 12.
The Laporta complaint alleges that at the time of the attack, and for some time prior thereto, Ramsey suffered from a variety of mental and psychiatric disorders. Laporta Complaint, Paragraph 3. The complaint also alleges that "[a]t no time during the stabbing did the defendant, Jeffrey Ramsey, understand the nature or wrongfulness of his conduct, or he was deprived at the time of the capacity to control his actions regardless of his understanding of the nature or wrongfulness of his actions" and that "[a]t no time during the stabbing was bodily injury intended or expected by the defendant." Laporta Complaint, Paragraphs 9, 10.
Merrimack has moved for summary judgment in this action claiming that the allegations of the Laporta Complaint against Ramsey "fall squarely within exclusions to coverage for sexual molestation, corporal punishment, or physical or mental abuse, which do not turn on the intent of the insured. Accordingly, the plaintiff is entitled to summary judgment, and a declaration that it does not have a duty to defend and/or indemnify Ramsey in the underlying civil action." Motion for Summary Judgment, December 18, 2007. Merrimack claims that Ramsey's conduct constituted physical and/or mental abuse of Laporta whether or not Ramsey understood the nature or wrongfulness of his conduct. The Defendant Laporta claims that Ramsey's actions do not constitute "corporal punishment"; that there is no allegation of "sexual molestation"; and to be considered "physical or mental abuse" within the meaning of the policy you must consider the intent of the actor, here, Ramsey. Laporta argues that if Ramsey was so mentally ill that he did not have an appreciation of his actions, than his actions cannot rise to that level. Merrimack responds that "the focus is not whether the injury was expected or intended by the insured, but whether the injury arises out of the excluded conduct." Reply to Opposition to Motion for Summary Judgment, June 10, 2008, p. 5.
In addition to the policy, Merrimack references the language of the Homeowners Policy Program (1991 Edition) in its complaint and in support of its motion. However that document is just a summary of the major changes in the policy and states that: "No coverage is provided by this summary nor can it be construed to replace any provision of the policy . . . If there is any conflict between the policy and this summary, THE PROVISIONS OF THE POLICY SHALL PREVAIL." (Exhibit B to Memorandum of Law in Support of Motion for Summary Judgment, December 8, 2007.) Thus the court's decision is based on the language of the policy alone.
Discussion
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law . . ." (Internal quotation marks and citation omitted.) Hopkins v. O'Connor, 282 Conn. 821, 829, 925 A.2d 1030 (2007).
"Our statutes enable judges of the Superior Court to implement a declaratory judgment procedure. General Statutes § 52-29. The purpose of a declaratory judgment action is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties." (Citations omitted.) Connecticut Association of Healthcare Facilities, Inc. v. Worrell, CT Page 13470 199 Conn. 609, 613, 508 A.2d 743 (1986). "There is no question that a declaratory judgment action is a suitable vehicle to test the rights and liabilities under an insurance policy." (Citation omitted.) St. Paul Fire Marine Insurance Company v. Shernow, 22 Conn.App. 377, 380, 577 A.2d 1093 (1990). "The court may address the merits of a declaratory judgment action upon a motion for summary judgment." (Internal quotation marks and citations omitted). Giglio v. American Economy Insurance Company, Superior Court, Judicial District of New Haven at Meriden, Docket No. CV02-0282069 (Apr. 26, 2005, Arnold, J.).
"[T]he duty to defend is considerably broader than the duty to indemnify." (Citations omitted.) DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675, 687, 846 A.2d 849 (2004). "The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [plaintiff's] complaint [in the underlying action] with the terms of the insurance policy." (Citation omitted.) Community Action for Greater Middlesex County v. American Alliance Insurance Company, 254 Conn. 387, 395, 757 A.2d 1074 (2000). "In construing the duty to defend as expressed in an insurance policy, 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 . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend . . . If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Internal quotation marks and citation omitted.) Hartford Casualty Insurance Company v. Litchfield Mutual Fire Insurance Company, 274 Conn. 457, 463, 876 A.2d 1139 (2005). "Where an insurer sets up a specific liability it was unwilling to provide a defense or indemnity for, [t]he burden of proving an exception to a risk is on the insurer . . . [T]he insurer has the burden of demonstrating that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and further, that the allegations are subject to no other interpretation." (Internal quotation marks and citations omitted.) Allstate Insurance Company v. Devin, 50 Conn.Sup. 140, 147, 913 A.2d 1174 (2006). "Further, it is well established . . . that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered. An insurer, therefore, is not excused from its duty to defend merely because the underlying complaint does not specify the connection between the stated cause of action and the policy coverage. Thus, the relevant question is whether the party claiming coverage is an insured party in the capacity in which he was sued." (Internal quotation marks and citation omitted.) Hartford Casualty Insurance Company v. Litchfield Mutual Fire Insurance Company, supra, 464.
"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." (Internal quotation marks and citations omitted.) DaCruz v. State Farm Fire and Casualty Company, supra, 688.
In her action against Ramsey, Laporta alleges that: "At no time during the stabbing did the defendant, Jeffrey Ramsey, understand the nature or wrongfulness of his conduct, or he was deprived at the time of the capacity to control his actions regardless of his understanding of the nature of wrongfulness of his actions . . . At no time during the stabbing was bodily injury intended or expected by the defendant." Laporta Complaint, Paragraphs 9, 10. Under the policy, liability coverage is excluded for bodily injury arising out of sexual molestation, corporal punishment, and physical or mental abuse. The contract is silent as to what is meant by these terms. Thus the issue is whether the allegations of the Laporta Complaint fall within the ambit of arising out of corporal punishment or physical or mental abuse. Classification of the alleged behavior as such would trigger the exclusion provisions of the policy.
"[I]t is generally understood that for liability for an accident or an injury to be said to 'arise out of' [an occurrence or offense], it is sufficient to show only that the accident or injury 'was connected with,' 'had its origins in,' 'grew out of' 'flowed from,' or 'was incident to' [that occurrence or offense], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence or offense] . . . To 'arise' out of means 'to originate from a specified source.' Webster's Third New International Dictionary (1961); see also Black's Law Dictionary (7th Ed. 1999) (defining 'arise' as '1. [t]o originate; to stem [from] 2. [t]o result [from]'). The phase arising out of is usually interpreted as indicat[ing] a causal connection." (Internal quotation marks and citations omitted.) QSP, Inc. v. The Aetna Casualty Surety Company, 256 Conn. 343, 374, 773 A.2d 906 (2001). The injuries alleged by Laporta in her complaint against Ramsey clearly "arise out of" Ramsey's alleged attack upon her. She alleges that her injuries were a result of the actions of Ramsey which are described in that complaint as "the defendant, Ramsey, began stabbing himself and the plaintiff, Meghan Laporta, with a kitchen knife." Laporta Complaint, Paragraph 8. The stabbing of one person by another can readily be characterized as "physical abuse" as described in the policy. "The [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . It is axiomatic that 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 . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks and citation omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Citation omitted.) HLO Land Ownership Associates Ltd. Partnership v. Harford, 248 Conn. 350, 357, 727 A.2d 1260 (1999). A comparison of the language of the Laporta Complaint with the terms of the insurance policy clearly reveals that the allegations of bodily injury in the complaint arise out of physical abuse. The provisions of an insurance policy cannot be construed in a vacuum and should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy. Ceci v. National Indemnity Company, 225 Conn. 165, 168, 622 A.2d 545 (1993).
Merrimack also relies on Covenant Insurance Company v. Sloat, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 385786 (May 23, 2003, Levin, J.) [ 34 Conn. L. Rptr. 687]. There the court stated that the exclusion from covered bodily injury of injury which arises out of sexual molestation, corporal punishment, and physical or mental abuse ". . . precludes coverage for an entire class of risks arising out of specified conduct, and does not turn on the intent of the insured." (Citations omitted.) Covenant Insurance Company v. Sloat, id. In Sloat, a high school student was repeatedly subjected to "acts intended and designed to inflict physical and emotional consequences . . . that were at least extremely unpleasant and at worst cruel or hideous." Covenant Insurance Company v. Sloat, id. The plaintiff in the underlying action had sued the insured minor son and his parents as a result of his alleged part in such acts. The court held that the complaint "alleges bodily injury which arises out of sexual molestation, corporal punishment or physical or mental abuse . . . The complaint alleges injuries that are connected with, originate in, grow out of, flow from, or are incident to the physical and mental abuse of [the plaintiff]." (Internal quotation marks and citation omitted). Covenant Insurance Company v. Sloat, id. The court in Sloat concluded that the insurance company had no duty to defend the insureds in the underlying action because the allegations of the subject complaint "arise out of" the physical and mental abuse of the plaintiff and were therefore removed from coverage under the exclusions.
It was alleged there that: "The team had a long-standing tradition of humiliating new members by 'hog-tying' and hanging them from shower hooks by their underwear. The team also had a tradition known as 'the slapping game' in which players would remove their shirts before matches and hit themselves and each other until their chests turned red, leaving welts and handprints on each other's torsos. The team also engaged in an activity called 'garbage ball' in which one player could use any means to stop another player from putting volleyball into a can placed on a mat." Covenant Insurance Company v. Sloat, supra.
This result is supported by Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 757 A.2d 1074 (2000). In Community Action the policy "expressly exclude[d] coverage for, inter alia, bodily or personal injury 'arising out of (a) the actual or threatened abuse or molestation . . .'" Id., 400-01. Although the policy there, as here, did not define "abuse" or "molestation" the Court held that: "The policy exclusion exempts the defendant from liability for 'the actual or threatened abuse or molestation by anyone of any person . . .' Whatever other conduct that broad language may include within its purview, it certainly includes unwanted contact of a sexual nature. [W]e will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Other courts also have concluded that policy exclusion for abuse or molestation is unambiguous. See, e.g., McAuliffe v. Northern Ins. Co. of New York, 69 F.3d 277, 279 (8th Cir. 1995) (policy exclusion for 'actual or threatened abuse or molestation' clearly covers claim predicated on inappropriate sexual relationship between parishioner and priest); Mount Vernon Fire Ins. Co. v. Hicks, 871 F.Sup. 947, 951-52 (E.D.Mich. 1994) (policy exclusion for 'injuries sustained [as a result of] molestation or abuse' unambiguously covers claim predicated on assault); Jones v. Doe, 673 So.2d 1163, 1164-66 (La.App. 1996) (policy exclusion for injury resulting from 'actual or threatened abuse or molestation' clearly applies to sexual assault of five year old kindergarten student by older student); New World Frontier, Inc. v. Mount Vernon Fire Ins. Co., 253 App.Div.2d 455, 455-56, 676 N.Y.S.2d 648 (1998) (policy exclusion for abuse or molestation 'clear[ly] and unmistakabl[y]' applies to allegations that five year old boy had 'assaulted, battered and sexually molested' four year old girl)." (Footnote, internal quotation marks and citations omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 401-02 (2000).
The court in Community Action also rejected the plaintiff's argument that the words "abuse" or "molestation" denote an intentionality of conduct. "[W]e disagree with the premise that the boys' conduct must have been sexually motivated in order to constitute abuse or molestation within the meaning of the policy exclusion. There is nothing in the language of the exclusion to indicate that the alleged abuse or molestation must be sexually motivated or calculated to arouse the person or persons involved in the offending conduct; the boys' nonconsensual grabbing and fondling of Poe fall within the plain meaning of the words 'abuse' and 'molestation' irrespective of the boys' subjective state of mind." Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 403. Similarly, here Ramsey's state of mind is not determinative. His actions, as alleged in the Laporta Complaint, clearly constitute physical abuse within the language of the policy exclusion and that language does not require that the physical abuse be intended but only that the bodily injuries for which coverage is sought "aris[e] out of" such physical abuse.
Conclusion
The motion for summary judgment is granted.