Opinion
No. CV-05-4011341 S
December 12, 2006
MEMORANDUM OF DECISION
This is a decision on a motion for summary judgment filed by the defendant, Nicola Mallozzi. On November 8, 2005, the plaintiff, National Grange Mutual Insurance Company (National) filed a one-count amended complaint against the defendants, Nicola Mallozzi, Carlos Garcia-Vargas and Architectural Builders, LLC (Architectural). The complaint seeks a judgment declaring that it has no duty to defend or indemnify Mallozzi in an underlying action brought by Garcia-Vargas.
Garcia-Vargas v. Mallozzi, Superior Court, judicial district of Stamford, Docket No. CV 05 4005590.
The underlying action arises out of injuries and losses allegedly sustained when Garcia-Vargas was struck by an excavator operated by Mallozzi. National had issued a business-owner's liability insurance policy to Mallozzi that was in effect at the time of the alleged injury. The policy states that National has a duty to defend Mallozzi's business against an action seeking damages for bodily injury. The policy also states that it will pay sums that Mallozzi becomes legally obligated to pay as damages for bodily injury. The policy does not cover employees who sustain bodily injury "arising out of and in the course of . . . (a) [e]mployment by the insured; or (b) [p]erforming duties related to the conduct of the insured's business." National is currently defending Mallozzi in the underlying action.
On March 1, 2006, Mallozzi filed a motion for summary judgment on the ground that the allegations in the underlying complaint fall within the scope of the insurance policy issued by National. Mallozzi's motion was accompanied by a copy of the complaint from the underlying action, a copy of the insurance policy in question, and several affidavits. On April 28, 2006, National filed an objection to the motion with an accompanying memorandum of law. On August 31, 2006, Mallozzi filed a reply memorandum, and the matter was heard on short calendar on September 5, 2006.
I. "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." (Internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). II.In support of his motion, Mallozzi argues that National has a duty to defend because the underlying complaint raises the possibility of Garcia-Vargas's claim falling within the scope of the insurance policy. He maintains that the underlying complaint does not allege that Garcia-Vargas was an employee of Mallozzi and therefore does not fall within the policy's employee exclusion. National counters that the underlying complaint is ambiguous regarding whether Garcia-Vargas was employed by Mallozzi. National argues that this ambiguity raises a genuine issue of material fact and is enough to overcome Mallozzi's motion for summary judgment.
"[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 . . . 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 . . . Moreover, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Citations omitted; emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004). "[I]t 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." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005).
In the present case, a comparison of the underlying complaint and the policy's coverage language makes it clear that National has a duty to defend Mallozzi in the underlying action. First, National appears to concede that the only issue is whether Garcia-Vargas was employed by Mallozzi, and acting within the scope of that employment, at the time of the alleged injury. As previously noted, the court may not look beyond "the four corners" of the underlying complaint. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 464. Here, the underlying complaint does not provide any indication that Garcia-Vargas was an employee of Mallozzi. Instead, the complaint merely alleges that the injury occurred "in an area close to the rock wall that Carlos Garcia-Vargas was assisting to build." National's argument that "assisting to build" creates a genuine issue of material fact as to whether Garcia-Vargas was employed by Mallozzi is without merit. "[I]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., supra, 268 Conn. 688. The very fact that the complaint is "ambiguous" raises the possibility that Garcia-Vargas's allegations fall within the scope of coverage. Accordingly, the court finds that National has a duty to defend Mallozzi in the underlying action.
III.
Mallozzi maintains that once the duty to defend arises, the court may not address whether there is a duty to indemnify before the resolution of the underlying action. At that time, he asserts, General Statutes § 38a-321 is the appropriate means for resolving whether National has a duty to indemnify. Consequently, he requests that the court grant his motion for summary judgment dismissing the remainder of National's complaint.
Section 38a-321 provides in relevant part: "Upon the recovery of a final judgment against any person, firm or corporation by any person . . . for loss or damage on account of bodily injury . . . if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."
National responds by arguing that the issues in the underlying case are different than the issues in the present action, and, as such, can be adjudicated before the resolution of the underlying action. National maintains that the underlying action addresses whether Mallozzi is liable for the injuries sustained by Garcia-Vargas, whereas in this case, the only issue is whether Garcia-Vargas was employed by Mallozzi at the time he was injured. Further, National insists that § 38a-321 cannot be the only appropriate forum for National to resolve the issue of whether it has a duty to indemnify because an insurer may not bring an action under the statute.
As a preliminary matter, the court notes that this portion of Mallozzi's motion for summary judgment reads like a motion to dismiss. Yet, Practice Book § 10-6 and § 10-7 preclude a motion to dismiss at this stage of the proceeding unless the movant is attacking the court's subject matter jurisdiction. Here, Mallozzi has provided no authority, nor could the court find any authority, suggesting that National's duty to indemnify is beyond the scope of this court's subject matter jurisdiction. Accordingly, the court will treat Mallozzi's motion as one seeking judgment rather than dismissal.
"[T]he duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy." (Emphasis in original.) DaCruz v. State Farm Fire Casualty Co., supra, 268 Conn. 688. "[T]he duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case." (Internal quotation marks omitted.) Id. "In cases . . . in which the insurer's duty to defend has not been the subject of a successful challenge, there remains the possibility that the facts adduced in the underlying action will demonstrate that the insurer also has a duty to indemnify." Id., 689.
In the present case, the court has determined that National has a duty to defend. As the insurer's duty to indemnify now depends upon the resolution of the underlying action, it would be inappropriate to grant Mallozzi's motion at this time. Therefore, the court denies Mallozzi's motion for summary judgment as to whether National has a duty to indemnify, without prejudice, pending the outcome of the underlying action.
There is no appellate authority as to whether "a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment." Snodgrass v. Mulhearn, Superior Court, judicial district of New Britain, Docket No. CV 03 0523029 (May 18, 2006, Shaban, J.). Nevertheless, some courts have found that "the language of Practice Book § 17-51 . . . authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." Pelletier v. Sordoni/Skanska Construction Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV95 0155184 (May 5, 2005, Alander, J.) ( 39 Conn. L. Rptr. 302). In this case, the court finds appropriate circumstances in which the duty to defend can be severed from the duty to indemnify.
IV.
Mallozzi argues that he is entitled to attorneys fees in the present action. He asserts that attorneys fees are appropriate here because his contractual right to a defense in the underlying action should not be contingent upon successfully maintaining that right in the present action. National counters that Mallozzi would only be entitled to attorneys fees if it had breached its contractual duty to defend him in the underlying action. National argues, however, that it is currently defending Mallozzi in the underlying action.
"The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . Connecticut adheres to the American rule . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs . . ." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). "[I]n a scenario where the insurer fulfills its duty to defend and also contests coverage, the insured is not entitled to attorneys fees and costs in the declaratory judgment action to determine coverage. Attorneys fees and costs are only awarded for the declaratory judgment action if there was a breach of the duty to defend in the underlying litigation." (Internal quotation marks omitted.) General Plasma, Inc. v. Reliance Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 9705758995 (January 11, 2000, Peck, J.) ( 26 Conn. L. Rptr. 189).
Here, since National is fulfilling its contractual duty by providing a defense in the underlying action, Mallozzi is not entitled to attorneys fees at this time.
V.
In conclusion, the defendant's motion for summary judgment is granted to the extent that the complaint concerns the plaintiff's duty to defend. The defendant's motion for summary judgment, however, is denied as to the plaintiff's duty to indemnify. The defendant's motion for counsel fees is denied.