Opinion
No. CV-09-5012978
March 25, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
In this summary judgment motion New London County Mutual Insurance Company asks the court to determine that it does not have a duty to defend or indemnify its insured. Its policy excludes coverage for bodily injury "arising out of sexual molestation, corporal punishment or physical or mental abuse." Its insured, Jeffrey Lyon et al., has been sued for negligently providing a minor with alcohol in the insured's home and thereafter the minor was sexually assaulted in the insured's home by an unknown third person.
The second issue presented is whether the plaintiff insurer must provide a defense where an insured under the policy has been named as a defendant in an apportionment complaint.
FACTS
The plaintiff, New London County Mutual Insurance Company, commenced this action for a declaratory judgment by serving process on the defendant, Jeffrey Lyon, Sr., on August 24, 2009. The plaintiff is seeking a ruling that, under the terms of its homeowner's insurance policy, it has no duty to defend or indemnify the defendant. On February 23, 2010, the plaintiff amended its complaint to cite in Jeffrey Lyon, Jr. as an additional defendant and add a second count against him. On March 24, 2010, the plaintiff filed a second amended complaint which is the operative complaint.
Since Jeffrey Lyon, Jr. has not filed an appearance in this action, Jeffrey Lyon, Sr. alone will be referred to as "the defendant."
The facts alleged by the plaintiff in the second amended complaint are as follows. The defendant had a homeowner's insurance policy with the plaintiff for the time period between December 30, 2006 and December 30, 2007. As a result of injuries allegedly sustained from a sexual assault at the defendant's residence on June 16, 2007, the plaintiff minor, Jane Doe, through her father and next friend, John Doe, has brought a lawsuit (the Doe claim) against the defendant for negligent supervision and negligent provision of alcohol. Doe v. McGugan, et al., Superior Court, Judicial District of New London, Docket No. KNL CV095012047. The plaintiff claims that it has no duty to defend or indemnify the defendant for any claim arising out of the Doe claim for sexual molestation and physical abuse because that conduct is expressly excluded from coverage under the policy. Specifically the policy provides:
Coverage E-Personal Liability and Coverage F — Medical Payments to Others do not apply to "bodily injury" or "property damage" . . . k. arising out of sexual molestation, corporal punishment or physical or mental abuse . . .
In counts five and seven of the complaint in the Doe claim, Jane Doe and John Doe made the following relevant allegations. Jane Doe was invited to the Lyon home on June 16, 2007, to attend an underage drinking party hosted by Jeffrey Lyon, Jr. While at the Lyon home, Jane Doe was supplied with alcohol. During this party, Jane Doe became visibly intoxicated, and, while she was intoxicated, an unnamed, minor sexually assaulted her. The underage drinking by and sexual assault of the minor Plaintiff were caused by the negligence and carelessness of the Defendant . . . in one or more of the following ways, in that he . . . a. failed to properly supervise his minor son and his guests at his home; b. failed to take steps to prevent drinking of alcohol by minors on the premises . . . p. failed to take steps to prevent sexual assault of minors on the premises . . . 17. As a direct result and proximate result of the negligence and carelessness of the Defendants as aforesaid, the Plaintiff, `Jane Doe,' suffered injuries including sexual assault and battery . . ." In count two of the apportionment complaint, the defendants alleged that Lyon, Jr. was negligent when he failed to prevent the consumption of alcohol by minors, supervise his guests, and prevent sexual assault, and his negligence, in whole or in part, caused Jane Doe's injuries.
In addition, Jeffrey Lyon, Jr., as the defendant's son, is also an insured under the homeowner's policy. An apportionment complaint dated October 9, 2009, was filed against him by George McGugan and Patricia McGugan who are also defendants in the Doe litigation. The apportionment complaint claims that the alleged sexual assault on Jane Doe was caused in whole or in part by the negligence of Jeffrey Lyon, Jr. The Does chose not file a direct action against Jeffery Lyon, Jr.
The plaintiff again claims that it has no duty to defend and indemnify Jeffrey Lyon, Jr. from claims arising out of the apportionment complaint because no damages are sought in that context.
The plaintiff filed the current motion for summary judgment on May 13, 2010, on the ground that the act of sexual molestation and abuse allegedly committed on the defendant's property is specifically excluded from coverage under the homeowner's policy. The plaintiff submitted a memorandum of law in support of the motion and attached a copy of the amended complaint filed in the Doe claim, a copy of the apportionment complaint in the same action, a copy of the homeowner's insurance policy with a certificate of authentication, and an affidavit by Diane Landock, the plaintiff's senior casualty specialist. The defendant filed a memorandum in opposition to the motion on September 15, 2010. On October 6, 2010, the plaintiff filed a reply memorandum. The motion was argued on November 8, 2010 and the parties consented to an additional thirty-day extension of time for the court to render its decision.
DISCUSSION
"There is no question that a declaratory judgment action is a suitable vehicle to test the rights and liabilities under an insurance policy." St. Paul Fire and Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380, 577 A.2d 1093 (1990). The court may address the merits of a declaratory judgment action in the context of a motion for summary judgment. United States Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 102, n. 3, 698 A.2d 919 (1997).
"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." Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). Furthermore, when a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
The plaintiff argues that it has no duty to defend or indemnify the defendant or Lyon, Jr. because the underlying action, which alleges a claim of sexual molestation and abuse committed on the defendant's property, is specifically excluded from coverage under the defendant's homeowner's policy.
In response, the defendant acknowledges his agreement with the plaintiffs presentation of the material facts, but argues an opposing interpretation of the insurance policy language. The defendant counters that the policy must be examined in its entirety, reading any exclusionary clauses in conjunction with the coverage and exclusion clauses of the policy, and that, in so doing, concludes that the underlying action, negligent supervision, is covered by the terms of the policy and not excluded. The defendant also argues that the underlying action does not fall within the exclusion from coverage because that action is based on the defendant's own negligence independent of any sexual assault. In its reply memorandum to the defendant's opposition to the motion for summary judgment, the plaintiff argues that the court should interpret the phrase "arising out of" in their exclusion clause as pertaining to the nature of the injury, not the alleged theory of liability. Such a reading would require that the sexual molestation or abuse exclusion applies here regardless of who engages in the excluded conduct.
In the defendant's memorandum of law, he offers legal arguments and differing interpretations of the policy language but does not assert any new facts and does not attach any contradictory affidavits or other evidence.
A.
As a preliminary matter, because "[c]onstruction of a policy of insurance presents a question of law"; Wentland v. American Equity Ins. Co., 267 Conn. 592, 600, 840 A.2d 1158 (2004); there are no genuine issues of material fact and the court must address whether the plaintiff deserves judgment as a matter of law. "The principles governing our determination of this issue are well settled. [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 . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend . . . Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend . . ." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398-99, 757 A.2d 1074 (2000).
The Supreme Court has provided further guidance for interpreting the language of an insurance policy in order to decide whether a complaint falls within coverage. "In ascertaining the meaning of the terms of the insured's policy, we also are guided by well established principles. The [i]nterpretation of an insurance policy . . . involves a determination of the intent of the parties as expressed by the language 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 . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy . . ." (Citations omitted; internal quotation marks omitted.) Id., 399.
"[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so." (Internal quotation marks omitted.) Detels v. Detels, 79 Conn.App. 467, 472, 830 A.2d 381 (2003). "However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . ." (Citations omitted; internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 382, 718 A.2d 820 (1998).
B.
The homeowner's policy in question includes the following relevant sections. Section II Coverage E reads, "[i]f a claim is made or a suit is brought against an `insured' for damages because of `bodily injury' or `property damage' caused by an `occurrence' to which this coverage applies, we will (1) pay . . . for the damages for which the `insured' is legally liable . . . and (2) provide a defense at our expense by counsel of our choice . . ." Section II Exclusions reads, "Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to `bodily injury' or `property damage' . . . k. arising out of sexual molestation, corporal punishment or physical or mental abuse . . ."
Neither party has argued that the events described in the Doe claim do not fit within the language of coverage; in other words, neither party disputes that Jane Doe suffered "bodily injury" caused by an "occurrence" at the home. Furthermore, neither party argued that the alleged conduct of the unnamed party guest did not constitute "sexual molestation" or physical abuse." The issue of interpretation focuses on whether the clause as a whole is a broad exclusion which excludes coverage for all injuries "arising out of sexual molestation" regardless of who the actor is and what the intent or actions of the insured were, or whether the exclusion clause is ambiguous when applied to the allegations in the complaint and thus there is a duty to defend and indemnify.
Connecticut courts have had an opportunity to interpret the phrase "arising out of" in various insurance policy contexts. "It 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] . . . To arise out of means to originate from a specified source . . . The phrase arising out of is usually interpreted as indicat[ing] a causal connection . . ." (Citations omitted; internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001) (General liability policy, antitrust coverage disputed); see also United Services Automobile Ass'n. v. Kaschel, 84 Conn. App. 139, 146, CT Page 8275 851 A.2d 1257 (2004) (applying the same definition of "arising out of" in the context of an exclusion for injuries arising out of the use of an automobile).
Connecticut courts have also reviewed the "arising out of" language in lead paint or pollution coverage disputes. In these cases the insurer is seeking to avoid a class of risks. In these cases courts have focused on the causes of pollution rather than just the injuries that come from pollution in order to decide whether the harms claimed "arise out of" the conduct specifically excluded. The courts distinguish between different types of conduct, and different types of contaminants in each particular set of facts to decide whether the exclusion is ambiguous. A superior court decision, involving lead paint coverage, succinctly explains this concept first established in Heyman Associates No. 1 v. Ins. Co. Of Pennsylvania, 231 Conn. 756, 653, A.2d 122 (1995); " Heyman . . . instructs this court to determine whether the clause is clear and unambiguous as applied to the particular facts of this case . . . A term or clause may be clear and unambiguous in one context, yet subject to more than one reasonable interpretation in another." (Citation omitted; internal quotation marks omitted.) Danbury Ins. Co. v. Novella, 45 Conn.Sup. 551, 553, 727 A.2d 279 (1998); See also Nat'l Grange Mutual Ins. v. Caraker, Superior Court, Judicial District of Windham at Putnam, Docket No. CV 03 0070715 (August 6, 2004, Foley, J.) ( 37 Conn. L. Rptr. 616) (highlighting "the importance of considering the polluting substance and the context in which the alleged pollution occurs"). Many pollution cases found that the language of the exclusion clauses denying coverage for "bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants" was ambiguous when it was being applied to occurrences that did not fit into the usual and expected circumstances that bring about pollution such as dumping contaminants in waterways. See e.g. Nat'l Grange Mutual Ins. v. Caraker, supra, 37 Conn. L. Rptr. 616. For example, courts have found pollution exclusion clauses to be "ambiguous to the extent that a reasonable insured would interpret it to exclude coverage for claims arising out of factual circumstances more analogous to classic environmental pollution, but not for claims of personal injury allegedly sustained as a result of the type of paint covering the surfaces of rented premises." Id.
The plaintiff further argues that the term "insured" does not appear in this exclusion clause by intention of the parties because where the parties intended to exclude actions by only the insured they wrote the term "by the insured" into the clause. Courts have relied on this standard rule of construction to hold that if language is used in one part of the policy and does not appear in other parts, the omission shows that the parties intended to leave the word out, and therefore, intended that the particular clause or section would not be limited by such a term. See e.g., Ristine v. Hartford, supra, 195 Or.App. 233-34. In the present policy, there are clauses that specifically include the language, "by an insured" when the parties wanted to be clear that an exclusion applies to the actions of an insured only. For example in the policy which is the subject of this lawsuit, Section II 1(a) excludes coverage for injuries "which is expected or intended by the `insured."' On the other hand, there are also clauses that specifically include language to broaden the scope of a clause to cover all possible actors when the parties intended to do so. For example, Section II 1(l) excludes injury "arising out of the use, sale, manufacture, delivery, transfer or possession by any person of a Controlled Substance." (Emphasis added.) The exclusionary clause in question does not include either of these phrases which would have clarified the intent of the parties. Thus, the scope of this exclusion as applied to the facts of this case is unclear to the court.
Furthermore, insurance policies must be construed from the perspective of a reasonable layperson purchasing the policy. The purchaser of a homeowner's policy of insurance purchases coverage for conduct they engage in or liability based on their ownership or control of real property. Generally, they do not purchase insurance because they are concerned with liability coming from actions of third parties or a particular type of harm. While a reasonable layperson could not expect coverage for his intentional acts meant to harm others, it is reasonable to expect that insurance provide a defense and in some instances indemnify claims for injuries that occurred because of acts of a house guest unless clearly denoted by policy language.
There is no binding appellate authority in Connecticut which directly applies to the case at hand, and an examination of Superior Court cases on the issue reveals differences in how the courts have interpreted such an exclusion clause. Some Superior Courts have read the policy exclusions that exclude coverage for injury "arising out of" sexual molestation or physical abuse broadly and held that the clause "precludes coverage for an entire class of risks arising out of specified conduct, and does not turn on the intent of the insured." Covenant Ins. Co. v. Sloat, Superior Court, judicial district of Fairfield, Docket No. 385786 (May 23, 2003, Levin, J.) ( 34 Conn. L. Rptr. 687); see also New London County Mutual Ins. Co. v. Riddick, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177973 (September 16, 2004, Matasavage, J.) ( 38 Conn. L. Rptr. 7) (holding there is no duty to defend because defendant would have never been sued for negligence but for the sexual molestation committed by her son); Middlesex Mutual Assurance Co. v. Favreau, Superior Court, judicial district of Fairfield, Docket No. CV 02 396760 (September 17, 2003, Dewey, J.) (holding that there was no duty to defend because the underlying action was based entirely on allegations of sexual contact). On the other hand, the Superior Court has also found that the exclusion clause does not apply to an insured individual who did not commit the specified conduct excluded, because a cause of action against the insured could only possibly arise out of her negligence which is separate from the sexual molestation. Amica Mutual Ins. Co. v. Wetmore, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 4010532 (August 13, 2009, Radclffe, J.) ( 48 Conn. L. Rptr. 213).
There is a similar split among the various state and federal courts that have ruled on whether an "innocent insured," (those who did not commit the sexual assault themselves), would also be excluded from coverage.
See American Family Mutual Insurance Co. v. Bower, United States District Court, Docket No. 1:07 CV 254 (Northern District of Indiana November 5, 2010) (explaining the split among different state courts and finding that an exclusion clause for sexual molestation does not apply to "innocent insureds" being held liable for negligence). Some courts find that claims against insured for negligent, supervision, or failure to warn or to protect, are claims which allege separate injuries from those of the underlying sexual molestation and therefore the exclusion clause does not apply. See e.g., St. Paul Fire Marine Ins. Co. v. Zotta, CT Page 8280 149 F.3d 878 (8th Cir. 1998) (applying Missouri law, the Federal Court held that the claims against the insured, for negligent supervision of children who were sexually molested by a third party guest in the house, fall within coverage because the claims alleged injury to the children that was separate from the sexual act and therefore, should not be excluded.); Sturt v. Grange Mutual Casualty Co., 145 Ohio App.3d 70, 761 N.E.2d 1108 (2001) (holding that the exclusion clause did not apply to the insured in this situation because the insured was being sued for misrepresentation and failure to warn separate from the underlying molestation.); Havel v. Chapek, 2006 Ohio 7014, Court of Appeals of Ohio, Eleventh District (2006), reconsideration denied, 113 Ohio St.3d 1514, 866 N.E.2d 512 (2007) (holding that the insured parents of a son who murdered a woman were still covered under the policy despite an exclusion clause for sexual molestation or physical abuse because the parents were only possibly negligent for failure to warn or protect and the exclusion only applied to intentional actors.)
Other courts find no duty to defend "innocent" insured individuals because an exclusion clause that uses the term "arising out of" excludes coverage for all injuries that are causally connected to a sexual molestation regardless of the intent of the insured, or the theory of liability. See e.g,. P.D. v. S.W.L., 993 So.2d 240 (La.App. 1 Cir. 2008); Hingham Mut. Fire Ins. v. Smith, 865 N.E.2d 1168, 69 Mass.App.Ct. 1 (2007); Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389, 934 A.2d 582 (2007); Ristine v. Hartford Ins. Co., 97 P.3d 1206, 195 Or.App. 226 (2004); American Commerce Ins. Co. v. Porto, 811 A.2d 1185 (2002).
It is noteworthy to the court that each of the Connecticut cases which interpreted the same exclusionary language to preclude coverage were cases where the actor was an insured, an employee or agent of the insured or a child of the insured. See e.g. Covenant Ins. Co. v. Sloat, supra, 34 Conn. L. Rptr. 687 (finding no duty to defend insured who were parents of minor committing assault being sued under a vicarious liability claim); Middlesex Mutual Assurance Co. v. Favreau, supra, Superior Court, Docket No. CV 02 396760 (finding no duty to defend insured parents being sued based on claims of vicarious liability and negligence when their son sexually assaulted another); New London County Mutual Ins. Co. v. Riddick, supra, 38 Conn. L. Rptr. 7 (finding no duty to defend insured parents of a minor being sued for negligence and negligent infliction of emotional distress when their child committed a sexual assault). In the present case, the individual who committed the sexual assault is an un-named guest in the house of the insured, and the pleadings do not establish a relationship that would make the defendant vicariously liable for the individual's actions beyond the claim of negligent supervision.
A line of Connecticut cases with more analogous fact patterns involving, "innocent" insured, are also inapposite because they all involve business insurance with much more precise exclusion language. See e.g. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 400 (exclusion language read "arising out of . . . the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured") (italics added); Clinch v. Generali-U.S. Branch, 110 Conn.App. 29, 36, 954 A.2d 223 (2008), aff'd, 293 Conn. 774, 908 A.2d 313 (2009) (applying exclusion language which read "this insurance does not apply to bodily injury, or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person") (italics added). The language in these cases expresses the intent of the parties to limit coverage to exclude any injuries from sexual molestation regardless of who commits it or who is involved in any way. The language in the present policy, on the other hand, does not specify whose actions are excluded from coverage. This difference in policy language is significant, and accordingly, the Amica Mutual Ins. Co. v. Wetmore court refused to apply an analysis, of clear and specific language which enumerates the possible actors that will fall into the exclusion, to a case in which the policy language was not as specific. Amica Mutual Ins. Co. v. Wetmore, supra, 48 Conn. L. Rptr. 213.
The line of authority holding that "arising out of sexual molestation" exclusion clauses do not apply to negligent parties who did not commit the molestation, observes that "negligent supervision and negligent entrustment torts are separate in nature and create distinct injuries from the molestation itself." American Family Mutual Ins. Co. v. Bower, supra, United States District Court, Docket No. 1:07 CV 254; see also St. Paul Fire Marine Ins. Co. v. Shrum, 149 F.3d 878, 880-81 (8th Cir. 1998) (holding that the intentional acts of another were incidental to and not an essential element of the negligence claim against the insured). The ability to separate the damages caused by the negligent conduct of the defendant as opposed to an unknown third party need not be identified with regard to a determination of the duty to defend.
In summary, the court concludes that the exclusionary language that the plaintiff relies upon is ambiguous as applied to the facts alleged in the Doe complaint. As such the court denies the motion for summary judgment as it relates to the plaintiff's obligation to provide a defense to its insured Jeffrey Lyon. The court does not reach the issue of whether the plaintiff has an obligation of indemnification.
C.
The plaintiff also presents a second argument against Jeffrey Lyon, Jr. The plaintiff argues that there is no duty to defend or indemnify him because the apportionment complaint brought against him does not seek damages as a remedy, and the policy only covers actions for "damages." Policy Section II Coverage E — Personal Liability states "[i]f a claim is made or a suit is brought against an `insured' for damages because of `bodily injury' or `property damage' caused by an `occurrence' to which this coverage applies we will provide a defense . . ."
The court must again conduct a similar analysis of these portions of the policy and the complaint. The Supreme Court has specifically clarified that "[p]ursuant to § 52-102b(a), the demand for relief in an apportionment complaint seeks only an `apportionment of liability.' `Liability' refers to a legal obligation or responsibility; Black's Law Dictionary (6th Ed. 1990); whereas `damages' refers to `monetary compensation' for loss or injury. Id. The terms are not synonymous." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 36, 848 A.2d 418 (2004). Since the plaintiffs in the underlying Doe claim have not exercised their option to amend their pleadings to make allegations against Lyon Jr. directly for damages, the only allegations against Lyon Jr. are those made by the apportionment complainants. By statute, the only remedy available to the apportionment complainant is apportionment of liability. The language of the policy is not ambiguous and clearly states that it will provide a defense if "a suit brought against the `insured' for damages." Therefore, the complaint for apportionment of liability brought against Lyon Jr. does not fall into the language of coverage in the policy.
CONCLUSION
For the foregoing reasons, the plaintiff is not entitled to summary judgment with regard to its claim that it does not have a duty to defend or indemnify the defendant Jeffery Lyon. The plaintiff is entitled to summary judgment that it does not have a duty to defend Jeffery Lyon Jr. with regard to the apportionment complaint.