Opinion
No. CV 04-0488254
July 1, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #107
I. FACTS
Plaintiff, Nicole Porto, instituted this action against Hermitage Insurance Company (Hermitage) to enforce a judgment in her favor, following a trial to the court (Meadow, J.). On March 29, 2000, Nicole Porto instituted a seven-count complaint against New England Entertainment Corp., d/b/a/ Gecko Cafe (New England Entertainment). The initial complaint, set forth causes of action pursuant to the Dram Shop Act, Public Nuisance, gross negligence as well as counts for negligent supervision against New England Entertainment, and one Scott Stone.
At trial before Judge Meadow, plaintiff proceeded only on count three of the complaint, a claim of negligent supervision against New England Entertainment only. All of the other counts were withdrawn. In count three, Nicole Porto alleged that the negligence of New England Entertainment, acting through its agents, servants and/or employees was the proximate cause of injuries and damages sustained by her. Her injuries included severe laceration of the right wrist, requiring surgery, medical expenses, lost time for her employment and permanent injury.
Plaintiff claimed New England Entertainment was negligent in one or more of the following respects:
a. In that it had inadequate personnel to control the persons in the bar.
b. In that personnel were not properly stationed.
c. In that they did not properly patrol and supervise the premises.
d. In that they were not capable of a proper level of supervision.
e. In that employees were not hired for the purpose of protecting patrons.
f. In that they failed to properly observe, monitor, control and/or supervise the actions of the persons inside the bar.
g. In that they had notice that several patrons were a danger to the patrons, but failed to control their behavior and/or to remove them from the premises; and when they did so attempt to remove said individuals, they did so improperly and negligently.
h. In that they were not properly instructed or supervised regarding protection.
i. In that they failed to take reasonable steps to provide a safe and secure environment.
Following a hearing in damages, including a stipulation by the parties that judgment could enter in favor of the Plaintiff as to count three, Judge Meadow awarded Nicole Porte economic and non-economic damages totaling $203,797.00. Judgment was within the limits of the policy issued by Hermitage to New England Entertainment, which provided limits of $300,000.00 per occurrence.
As consideration for the stipulation to liability on count three only, Plaintiff agreed not to enforce the judgment against New England Entertainment, but to look exclusively to Hermitage in an attempt to satisfy the Judgment.
This action was commenced to enforce the terms of the Judgment entered by Judge Meadow on May 23, 2003, in that the Judgment was not satisfied within thirty (30) days after it was rendered. The defendant, Hermitage, has moved for Summary Judgment, claiming that, it had no duty to defend New England Entertainment in the underlying action, and that it has no duty to indemnify New England Entertainment for the Judgment entered on May 23, 2003.
General Statutes Sec. 38a-321. Liability of insurer under liability, states in relevant part that . . . Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, 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.
Hermitage claims that under the applicable policy, two exclusions, the Assault and/or Battery Exclusion, and the Absolute Liquor Liability Exclusion, there is no obligation indemnify the Plaintiff, Nicole Porto and it is entitled to a Judgment as a matter of law.
Policy No. HGL 419029-98, effective August 21, 1998-August 21, 1999.
The Assault and/or Battery reads as follows:
Assault and/or battery shall not be deemed an accident under the above mentioned policy. The Company shall not be obligated to pay on behalf of or defend the insured for any claim alleging an assault and/or battery no matter how the assault and/or battery is alleged to have occurred.
It is understood and agreed that this insurance does not apply to " bodily injury" or " property damage" arising or alleged to arise out of:
A) An assault and/or battery caused by or at the instigation or direction of:
1. The insured, his agent or employee;
2. Any patron of the insured; or
3. Any other person; or
B) Any act or omission of the insured, his agent or employee in connection with the prevention or suppression of an assault and/or battery or criminal acts of third parties.
The Absolute Liquor Liability/Exclusion provides as follows:
This endorsement modifies insurance provided under the following:
A. COMPREHENSIVE GENERAL LIABILITY INSURANCE Exclusion (c) is replaced by the following:
[This insurance does not apply to . . .]
(c) to bodily injury or property damage for which the insured or his indemnitee may be held liable by reason of:
(1) Causing or contribution to the intoxication of any person;
(2) The providing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol.
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies to an insured or his indemnitee who:
(1) Manufactures, sells or distributes alcoholic beverages; or
(2) Serves or provides alcoholic beverages with or without a charge.
Policy of Insurance No. HGL 419029-98 excluded from general liability coverage expected or intended injury as follows:
2. Exclusions
This insurance does not apply to:
"Bodily Injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" resulted from the use of reasonable force to protect persons or property.
The plaintiff has filed a memorandum in opposition of the motion for summary judgment.
II. STANDARD OF REVIEW
Faced with a motion for summary judgment, a trial court must determine, after reviewing documentation and other evidence, whether any genuine issue of material fact remains between the parties. Only if no genuine issue of material fact is present, is the moving party entitled to judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983); Daily v. New Britain Machine Co., 200 Conn. 562, 568, 512 A.2d 893 (1986).
Connecticut Practice Book, § 17-49 provides that summary judgment "shall" be rendered forthwith if the pleadings, affidavits and 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 all of the evidence in the light most favorable to the non-moving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d. 1001 (1998). The burden is on the moving party to show quite clearly what the law is, and that it excludes any doubt as to the existence of any genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A 2d. 582 (1989); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d (1979).
Because the contract to be construed is a contract of insurance, the court must also be mindful of certain rules of construction. If the terms of a policy are clear and unambiguous, then the language from which the intention of the parties is to be deduced, it must be accorded its natural and ordinary meaning. Weingarten v. Allstate Insurance Co., 169 Conn. 502, 509, 363 A.2d 1055 (1975). However, when the words are susceptible of two interpretations, that which will sustain the claim and cover the loss must be adopted. Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716 (1954). Courts follow this rule, because it is the insurance company's attorneys, officers and agents who prepare the policy and it is their language which is being interpreted. Scranton v. Hartford Fire Ins. Co., 141 Conn. 313, 316, 105 A.2d 780 (1954). The rule of construction favorable to the insured, extends to exclusion clauses. Griswold v. Union Labor Life Insurance Co., 186 Conn. 507, 514, 442 A.2d 920 (1982).
III. THE ABSOLUTE LIQUOR/EXCLUSION DOES NOT APPLY
No allegation in count three claims that New England Entertainment caused or contributed to the intoxication of a patron or that alcoholic beverages were provided to minors. Claims concerning the violations of the Dram Shop Acts were contained in the original complaint, but were withdrawn prior to the trial before Judge Meadow.
Parties are permitted to plead in the alternative, and to withdraw those claims which cannot be sustained by a fair preponderance of the evidence. A cause of action for negligent supervision does not require the furnishing of intoxicating liquor as an element of the cause of action. Instead, it is premised upon the failure of the proprietor to exercise reasonable care in the supervision of the conduct of patrons, or other business invitees who are on the premises. Nolan v. Morelli, 154 Conn. 432, 440-41, 226 A.2d 383 (1967).
The absolute liquor exclusion does not avail the defendant on its attack upon a judgment rendered pursuant to count three of the plaintiff's complaint against its insured.
IV. ACTION IS NOT PRECLUDED BY THE ASSAULT AND BATTERY EXCLUSION
The defendant claims that Nicole Porto, a business invitee on premises under control of its insured, was the victim of an assault and/or battery. Therefore, it argues that the assault and battery exclusion applies, given the fact that the exclusion applies "no matter how the assault and/or battery is alleged to have occurred." Furthermore, it points to the language of the exclusion, which states that the policy does not apply to an assault and/or battery "caused by or at the instigation or direction of, 1) the insured, his agent or employee, 2) any patron of the insured, or 3) any other person."
This argument is not well-taken. An act designated to cause bodily injury to a particular person is actionable as a battery, either by one intended to be injured by the actor, or by another who is in fact injured by the act. Altieri v. Colosso, 168 Conn. 329, 334, 362 A.2d 798 (1978). The Restatement of Torts states that one is subject to liability for a battery if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such conduct, and (b) a harmful contact with the person of another, directly or indirectly results.
Restatement (Second) 1 Torts, S. 13.
Connecticut recognizes a cause of action for negligent assault and battery, provided it is the consequence of a force exerted by the defendant wantonly, or imposed without the exercise by him of due care. Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980). This has often been recognized in situations involving transferred intent, where one intends an assault, and injury results to one other than the one the actor intended to put on apprehension of bodily harm. Alteiri v. Colasso, supra at 335; Restatement (Second) 1 Torts, S. 16.
While there was testimony that an altercation broke out in the bar, and patrons had determined to engage in mutual combat, the plaintiff was clearly not the subject of an assault by any agent or employee of the insured, or a patron. This is not a situation in which a party, directing his actions at another, struck the plaintiff through inadvertence or happenstance. It is unclear, from the testimony before Judge Meadow, who actually made contact with the plaintiff, causing her to fall.
Unlike McWilliams v. Sphere Drake Insurance Company, No. CV-97-0057397S, Judicial District of Ansonia-Milford (March 27, 1998, Corradino, J.), the policy language applicable here contains no explicit language regarding the "hiring, retention, supervision or control of employees, agents or representatives." The court should not infer by implication, that which the defendant Hermitage Insurance Company has neglected to provide explicitly. Furthermore, although the Defendant might be able to construe the evidence as establishing a cause of action excluded by the policy provision, an equally plausible reading of the facts supports a cause of action as set forth in count three upon which the underlying judgment is based.
Although the plaintiff chose to proceed only on a single count, she is not required to prove that negligent supervision was the only cause of her injuries. The test for proximate cause is whether the defendant's conduct was a substantial factor in bringing about the plaintiff's injuries. Paige v. St. Andrew's Roman Catholic Church Corporation, 250 Conn. 14, 25, (1999). A concurrent cause may exist, and actively cooperate with the defendant's conduct in order to bring about an injury. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 433-34, 820 A.2d 258 (2003) Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29, 266 A.2d 370 (1969).
Since count three contains no allegations of an assault and battery, those elements are not necessary to sustain the cause of action.
Finally, the defendant argues that the exclusion applies because its agents and employees were engaged in the "prevention or suppression of an assault and/or batter and criminal acts of third parties." The defendant reads the clause too broadly, when it seeks to bring all of the allegations in the third count within its orbit. Clearly the defendant cannot reasonably be expected to be an insurer of the safety of persons on the premises and cannot be held liable for its failure to prevent a criminal act, absent extraordinary circumstances. See Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 611-12, 662 A.2d 753 (1998).
It is also contemplated that one might be injured, when an altercation is stopped or prevented and coverage would not attach in a claim by a patron, that he was prevented from assaulting another patron.
The claims contained in count three, when construed most favorably to the plaintiff, Nicole Porto, support a cause of action which would not preclude coverage based upon the policy language. The defendant's motion for summary judgment is therefore denied.
Lopez, J.