Opinion
No. CV07-5005600S
May 26, 2009
MEMORANDUM OF DECISION
This matter is before the court on the defendants Dan Civitello and Pools by Design's motion for summary judgment on the issue of whether or not the Nationwide Mutual Ins., the plaintiff, is obligated to provide a defense to Civitello and Pools by Design in the underlying action of Foss v. Civitello et al. This declaratory judgment action arises out of a coverage dispute regarding the applicability of an employer's liability exclusion and a workers' compensation exclusion in a commercial general liability policy between the plaintiff, Nationwide Mutual Insurance Company (Nationwide), and the defendants, Pools By Design, Inc. (Pools By Design), Daniel Civitello and Jeffrey Foss.
In March 2007, Foss filed a personal injury action (the underlying action) against Civitello and Pools By Design (the defendants) alleging that, while they were installing a pool in their employment with Pools By Design, Civitello negligently shot Foss in his left knee with a nail gun. In August 2007, Nationwide filed this declaratory judgment action requesting that the court declare that it is not obligated to defend or indemnify the defendants because "the liability alleged in the [underlying action] is excluded from coverage" under an employer's liability exclusion and a workers' compensation exclusion in the policy.
The defendants have filed a motion for partial summary judgment on the issue of Nationwide's duty to defend, arguing that the allegations of the complaint in the underlying action "fall [] within the policy language providing a defense" to them. The court finds the motion should be granted because, given that Foss alleged that he was an independent contractor, rather than an employee, in the underlying action, a review of the underlying complaint's allegations indicates that the employer's liability and workers' compensation exclusions do not apply.
FACTS A. The Underlying Action CT Page 8435
On March 30, 2007, Foss filed the underlying action, Foss v. Civitello, Docket No. CV-07-5004256-S, in this judicial district against Civitello and Pools By Design. Foss brought a negligence claim against Civitello, a negligence claim against Pools By Design for Civitello's alleged negligent conduct (based on vicarious liability), and a "negligent battery" claim against Civitello.
The complaint from this action, which is currently pending, was attached to the plaintiff's complaint and to the defendants' motion for summary judgment in the present declaratory judgment action.
Courts have recognized a cause of action for negligent battery. See Clarke v. Diaz, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-98-0163375-S (August 6, 1998, D'Andrea, J.) (explaining the plaintiff appeared to assert "a cause of action for negligent battery"); Perez v. Allen, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-92-0122168-S (November 7, 1997, Mintz, J.) (It is clear that negligent battery and intentional battery are mutually exclusive").
Foss alleged the following facts. At all times relevant hereto, Civitello was acting in the course of his employment as an agent, servant and/or employee of Pools By Design. On April 4, 2005, on Chesum Drive in Middlebury, Connecticut, Foss was working as an independent contractor with Civitello and for Pools By Design. On or about that date, while installing a pool with Civitello for Pools By Design, Foss sustained painful and serious injuries when Civitello negligently shot him in his left knee with a nail gun. Due to these injuries, Foss lost time and/or compensation from work and has incurred and will continue to incur expenses for his medical care and treatment. Pools By Design is liable for all injuries and damages caused to Foss by Civitello's negligence.
C. Nationwide's Declaratory Judgment Action
On August 22, 2007, Nationwide filed the present declaratory judgment action requesting that the court declare that Nationwide is not obligated to defend or indemnify the defendants because "the liability alleged in the (underlying action] is excluded from coverage under the policy." Nationwide alleges the following facts. The defendants were insureds under a commercial general liability insurance policy, policy number 51PR269158-0001E, issued by Nationwide and effective from January 5, 2005 through January 5, 2006. The policy contains "workers' compensation" and "employer's liability" exclusions.
The policy provides, in relevant part:
"SECTION I — COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' 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' or `property damage' to which the insurance does not apply.
2. Exclusions
This insurance does not apply to . . .
d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer's Liability
`Bodily injury' to:
(1) An `employee' of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business . . .
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity
"SECTION V — DEFINITIONS" provides as follows:
5. `Employee' includes a `leased worker.' `Employee' does not include a `temporary worker.
10. `Leased worker' means a person leased to you 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.'
19. `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.'"
The conduct alleged in the underlying action is excluded from coverage under the policy because (1) "the bodily injury alleged arose out of and in the course of" Foss's employment with Pools By Design and Civitello "and/or while . . . Foss was performing duties related to" the business of Pools By Design and Civitello; and (2) "the bodily injured gave rise to an obligation upon [Pools By Design and Civitello] to . . . Foss under workers' compensation, disability benefits, unemployment compensation law, or a similar law." Nationwide is defending Pools By Design and Civitello in the underlying action, pending a ruling in the present declaratory judgment action as to its obligations under the policy.
On October 11, 2007, the defendants filed an answer, special defenses, and counterclaims; and a motion to implead a third-party defendant, Bradley Dutcher, along with a third-party complaint. On October 19, 2007, Nationwide filed a motion to strike the defendants' special defenses and counterclaims. The defendants filed an objection on November 14, 2007, and Nationwide filed a reply to the objection and an "addendum" to its motion to strike on November 19, 2007. On January 8, 2008, the court denied Nationwide's motion to strike. On January 23, 2009, the court granted the defendants' motion to implead Bradley Dutcher. See Nationwide Mutual Ins. Co. v. Pools by Design, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-07-5005600-S (January 23, 2009, Alvord, J.) (47 Conn. Law Rptr. 144, 145).
In the third-party complaint, the defendants alleged that Dutcher, an insurance agent for Nationwide, sold Pools By Design and Civitello the policy at issue in the present case and negligently represented that the policy would provide adequate coverage to suit their business needs.
On December 18, 2008, the defendants filed a motion for partial summary judgment on the issue of Nationwide's duty to defend, arguing that the allegations of the complaint in the underlying action "fall [] within the policy language providing a defense" to them. On January 12, 2009, Nationwide filed a memorandum in opposition to the motion. On March 2, 2009, the defendants filed a reply memorandum to this memorandum in opposition.
DISCUSSION
Under Practice Book § 17-49, 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." Practice Book § 17-49; see also Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007)
"[T]he 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 him to a judgment as a matter of law . . . the evidence must be viewed in the light most favorable to the opponent . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Id., 319.
"[A] declaratory judgment action is a suitable vehicle to test the rights and liabilities under an insurance policy." St. Paul Fire Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380, 577 A.2d 1093 (1990) "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 . . . and to make certain that the declaration will conclusively settle the whole controversy." (Citations omitted; internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995).
"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 [the] complaint [in the underlying action] with the terms of the insurance policy." Wentland v. American Equity Ins. Co., 267 Conn. 592, 599 n. 7, 840 A.2d 1158 (2004). Moreover, the insurer bears the "burden of establishing that the [allegations of the] underlying complaint" demonstrate that an exclusion applies. Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 552, 791 A.2d 489 (2002); see also Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 807, 967 A.2d 1 (2009) (explaining the insurer has the "burden of proving an exclusion to a risk otherwise generally insured against").
"It is beyond dispute that an 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 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 [that] bring the injury within the coverage . . . If an allegation of the complaint falls even possibly within the coverage, then the [insurer] must defend the insured . . . Accordingly, an insurer's duty to defend its insured is triggered without regard to the merits of its duty to indemnify." (Citations omitted; internal quotation marks omitted.) Wentland v. American Equity Ins. Co., supra, 267 Conn. 600.
"[W]hen an exclusion clause is relied upon to deny coverage, the 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 in toto, are subject to no other interpretation." R.E.O., Inc. v. The Travelers Companies, Superior Court, judicial district of New Haven, Docket No. CV-95-0372522-S (May 20, 1998, Silbert, J.).
Nationwide alleges in its complaint that it has no duty to defend or indemnify the defendants because the conduct alleged in the underlying action is excluded from coverage due to the applicability of the employer's liability and workers' compensation exclusions in the policy. In the defendants' motion for partial summary judgment, they argue that "Nationwide's duty to defend is determined by the four corners of the complaint in [the underlying action]" and that Foss alleges "in paragraph 5 [of that complaint] that he was an independent contractor at the time of the injury complained." In Nationwide's memorandum in opposition to the motion for partial summary judgment, it argues that there is an issue of material fact as to whether the employer's liability exclusion applies because this exclusion only applies where an "employee" suffers bodily injury, and "a genuine issue of material fact exists as to whether Mr. Foss is an employee within the meaning of the policy."
The defendants further argue that this allegation is further "buttresse[d]" by Foss's "response to requests for admissions" where he admitted that "he was an independent contractor," denied that "he was an employee," and admitted that "he did not make a claim for workers' compensation benefits." They also argue that "Foss's deposition testimony itself shows a genuine issue of material fact as to the ultimate question of subcontractor or employee status." However, it is submitted that the court should not consider this evidence because "[t]he question of whether an insurer has a duty to defend its insured is . . . to be determined by comparing the allegations of [the] complaint [in the underlying action] with the terms of the insurance policy." Wentland v. American Equity Ins. Co., supra, 267 Conn. 599 n. 7.
Nationwide also argues that there are issues of material fact as to whether the workers' compensation exclusion applies because (1) "there exists a question of material fact as to the extent of the defendants' compensable obligations to Mr. Foss" under this exclusion; (2) "the question of Mr. Foss's status as an `independent contractor' does not preclude the issue of whether Mr. Foss's injury is compensable under [the] compensatory schemes" described in the workers' compensation exclusion; and (3) "this exclusion applies regardless of whether Mr. Foss took steps to enforce those obligations."
In the defendants' reply memorandum, they argue that the workers' compensation exclusion does not apply because the policy provides that this exclusion only applies where there is an "obligation of the insured under a workers' compensation law," and "Foss has created no obligation on the part of Civitello and Pools By Design to make any payments to him," given that he failed to comply with General Statutes § 31-294c(a) by failing "to bring a claim for workers' compensation benefits within one year of the injury."
"Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the [Workers' Compensation Act] . . . General Statutes § 31-275 et seq. . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault . . . Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount . . . In return, the employee is compensated for his or her losses without having to prove liability . . . In a word, these statutes compromise an employee's right to a common law tort action for work related injuries in return for relatively quick and certain compensation." (Internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 378-79, 731 A.2d 294 (1999).
"CGL policies, typically include both a workers' compensation exclusion and an employer's liability exclusion . . . A workers' compensation exclusion expressly excludes coverage for any obligation of the insured under a workers' compensation law or any similar law . . . The employer's liability exclusion exempts coverage for bodily injury to an employee arising out of and in the course of employment by the insured or during the performance of duties relating to the conduct of the insured's business." (Internal quotation marks omitted.) Merchants Mutual Ins. Co. v. Laighton Homes, LLC, 153 N.H. 485, 488, 899 A.2d 271 (2006). "The primary objective of an employee's exclusion clause is to avoid duplication of coverage with an employer's workers' compensation coverage." Sacharko v. Center Equities Ltd. Partnership, 2 Conn.App. 439, 444, 479 A.2d 1219 (1984).
"A commercial general liability policy is designed and intended to provide coverage to the insured for tort liability for physical injury to the person or property of others. An employer accordingly obtains a commercial general liability policy for purposes of providing coverage for the employer's liability to the general public for the negligence of the employer's agents, servants, and employees pursuant to the doctrine of respondeat superior. A commercial general liability policy is not designed to provide coverage for an employer's liability for injuries to its employees. Instead, the compliance of an employer with a respective jurisdiction's workers' compensation statute constitutes the full extent of an employer's liability for any injuries sustained by its employees, arising out of and in the course of their employment. The standard commercial general liability policy therefore expressly excludes coverage for any obligation of the insured under a workers' compensation law or any similar law." 9A L. Russ T. Segalla, Couch on Insurance (3d Ed. 2005) § 129:10, p. 23-24.
The commercial general liability policy in the present case provides that Nationwide "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies," and the plaintiff "will have the right and duty to defend the insured against any `suit' seeking those damages." The employer's liability exclusion excludes coverage for "`[b]odily injury' to . . . [a]n `employee' of the insured . . ." (Emphasis added.) Additionally, the workers' compensation exclusion excludes coverage for "[a]ny obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law"; however, "a claimant . . . who is not an employee has no right under [the workers' compensation statute] to claim for and be awarded benefits." (Emphasis added; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 800, 712 A.2d 396 (1998). Therefore, neither exclusion applies unless Foss was an "employee" of the defendants.
"The entire statutory scheme of the Workers' Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act." (Internal quotation marks omitted.) Dowling v. Slotnik, supra, 244 Conn. 800.
The court should note that "[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work." (Emphasis in original.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). "The right to control test determines" the relationship between a worker and a putative employer "by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 620, 716 A.2d 857 (1998).
In paragraph five of count one of the complaint in the underlying action, Foss alleged that "the plaintiff, Jeffrey Foss was working as an independent contractor with defendant Daniel Civitello and for defendant Pools By Design, Inc." "[T]he duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage." (Emphasis in original.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004). Accordingly, because Foss alleged that he was an independent contractor, rather than an employee, the court finds that the allegations of the underlying complaint indicate that the employer's liability and workers' compensation exclusions are inapplicable.
The court need not address the defendants' argument that the workers' compensation exclusion does not apply when the insured fails to file a workers' compensation claim because the court should grant the motion for partial summary judgment on other grounds. Additionally, the court need not address Nationwide's other arguments, mentioned above, because they were inadequately briefed. See State v. Colon, 272 Conn. 106, 153 n. 19, 864 A.2d 666 (2004) (holding a court is "not required to review issues that have been improperly presented to [it] through an inadequate brief").
CONCLUSION
The court therefore grants the defendants' partial motion for summary judgment on the issue of whether or not the plaintiff has a duty to defend because a review of the allegations of the underlying complaint indicates that the employer's liability and workers' compensation exclusions do not apply.