Opinion
No. CV 04 041 28 88 S
October 21, 2005
MEMORANDUM OF DECISION
Melissa Mackey, defendant in this action, had previously brought an action against the other named defendant, Adam Renz, for injuries allegedly sustained as a result of Renz's negligence including, among other things, causing a firearm to be discharged resulting in her sustaining injuries.
In the instant action, the plaintiff, Merrimack Mutual Fire Insurance Company, seeks a declaratory judgment against Renz claiming that there is no coverage for the injuries claimed by Mackey under the homeowner's policy issued to Renz's father because such injuries resulted from actions that are excluded by the policy's "intentional act" exclusion and its "penal law and ordinance" exclusion.
The policy sets forth exclusions on page two of the additional coverage endorsement (the "Endorsement"), which provides in relevant part: "personal injury insurance does not apply to . . . (2) injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of the insured . . ." The Endorsement defines "personal injury" as an "injury arising out of one or more of the following offenses: 1. false arrest, detention or imprisonment, or malicious prosecution; 2. libel, slander or defamation of character; or 3. invasion of privacy, wrongful eviction or wrongful entry." The policy also defines "bodily injury." "Bodily injury means bodily harm, sickness or disease including required care, loss of service and death that results." "Bodily injury" is not included within the meaning of "personal injury."
The defendant seeks to strike paragraphs 15(c), 18, 19(b)(1-5) and 19(c) of the plaintiff's revised complaint. Although a motion to strike is not the proper vehicle for the elimination of individual allegations, having considered the relief sought in the defendant's motion, in the interest of judicial economy, the court will treat the defendant's motion to strike as a request CT Page 13351-hf to revise pursuant to Practice Book § 10-35. See Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
"[M]ost trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." (Internal quotation marks omitted.) Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.T.R.) ( 31 Conn.L.Rptr. 380); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . .").
Paragraphs 15(c), 18, 19(b)(1-5) and 19(c) of the plaintiff's revised complaint involve the section of the policy that includes the "penal law or ordinance" exclusion. The scope of the "penal law or ordinance" exclusion is limited to "personal injury" and "personal injury" is in turn limited by definition, as discussed supra. That is, the exclusion is limited to "injury arising out of one or more of the following offenses: 1. false arrest, detention or imprisonment, or malicious prosecution; 2. libel, slander or defamation of character; or 3. invasion of privacy, wrongful eviction or wrongful entry." The allegations in the underlying complaint do not allege that the injury to Mackey arose from any of these enumerated offenses.
Since the policy exclusion for a violation of penal laws and ordinances, by definition, does not apply to the allegations of the underlying action, the defendant's motion is granted and the court orders that the plaintiff revise its complaint by striking paragraphs 15(c), 18, 19(b)(1-5) and 19(c) of its revised complaint.