Opinion
No. CV 01 0558276
July 17, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #117
The plaintiff moves for summary judgment as a matter of law. The motion is denied.
On April 2, 2001, the plaintiff, Safeco Insurance Company of America (Safeco), filed a complaint seeking declaratory relief from the defendants, Donald Lee, Pamela Lee, Christopher Lee (the Lees), and Cynthia Arons. This action arises from the conduct of Richard LaFountain and Christopher Lee in June of 1999. Richard LaFountain and Christopher Lee both entered criminal pleas of nolo contendere to charges of arson in the third degree for the burning of three barns. The victims of these events commenced civil lawsuits against the young men. Safeco insured the Lees at the time of the incident.
The Travelers Indemnity Company A/S/O the State of Connecticut Department of Agriculture v. Richard LaFountain et al., CV 01 0559207 CT Page 8413-fs (Travelers case), and Cynthia Arons v. Christopher Lee et al., CV 01 0557765 (Arons case). The Travelers case and Arons case, as well as, the declaratory judgment action commenced by Nationwide Insurance Company against its client, Richard LaFountain and his parents (Nationwide case) CV 02 0562972, are all consolidated with this present declaratory judgment action.
On March 12, 2003, Safeco moved for summary judgment asserting that there were no triable issues of fact and it is entitled to judgment as a matter of law. Safeco's memorandum in support of its motion indicates that it adopts and incorporates the facts, reasoning and law stated in motion for summary judgments and memorandum in support prepared by Nationwide Insurance Company for the Nationwide case. Both insurance companies argue in their briefs that Richard LaFountain and Christopher Lee intentionally set the three barns on fire. Safeco argues that as a result of this intentional conduct, the policy issued to the Lees excludes them from coverage. In support of its motion, Nationwide submitted a memorandum of law together with numerous exhibits. Exhibit A is the insurance policy issued to the LaFountains; Exhibit B is a transcript of Richard LaFountain's plea of nolo contendere to the charge of arson in the third degree; Exhibit C is the deposition of Richard LaFountain; Exhibit D is Richard LaFountain's statement to the police dated June 25, 1999; and Exhibit B is the deposition of Christopher Lee. Safeco also submitted exhibits with its memorandum which included the insurance policy (Exhibit A), and the transcript of Christopher Lee's plea of nolo contendere to the charge of arson in the third degree (Exhibit B). CT Page 8413-fq
Nationwide submitted a forty-six paged brief without prior permission from the court in violation of Practice Book § 4-6.
The plaintiffs from the Travelers case and the Arons case both filed objections to Safeco's motion for summary judgment on April 4, 2003 and March 31, 2003, respectively. In support of their objections, these parties each filed a memorandum of law in support together with a voluminous amount of exhibits which included the Travelers case complaint, depositions of Richard LaFountain, Christopher Lee, Priscilla LaFountain, Donald Lee, Pamela Lee, and transcripts from the sentencing hearing of both Richard LaFountain and Christopher Lee.
On April 11, 2003, Donald Lee and Pamela Lee also filed an objection to Safeco's motion for summary judgment and moved for summary judgment. In support of their motion the Lees filed a memorandum in support but failed to offer any supporting evidence.
Discussion
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).
"The court may address the merits of a declaratory judgment action upon a motion for summary judgment." (Internal quotation marks omitted.) Vitanza v. Amica Mutual Insurance, Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 181090 (March 13, 2002, Downey J.) ( 31 Conn.L.Rptr. 521), citing United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 290 A.2d 596 (1969). "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." (Internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995).
In the present case, Safeco is seeking a declaratory judgment relieving it from its responsibility to indemnify and defend its insured. Safeco argues that there is no dispute that Christopher Lee intentionally set fire to the barns. Safeco further argues that such intentional acts CT Page 8413-fr remove the Lees from coverage under the policy.
Under Section II — Exclusions from Liability Coverage the policy states, "a. which is expected or intended by any insured or which is the foreseeable result of an act or omission intended by any insured." (Safeco Exhibit A.)
The interpretation of an insurance contract is a question of law for the Court. Aetna Life Casualty Company v. Bulaona, 218 Conn. 51, 588 A.2d 138 (1991). In order for Nationwide to prevail on this summary judgment motion it must be undisputed that Christopher Lee intentionally set fire to the three barns. Safeco rests its argument upon the pleas of nolo contendere made by Richard LaFountain and Christopher Lee, the police statement made by Richard LaFountain, and the depositions of both boys. The court initially notes that "[a] plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment . . . The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case." (Emphasis in original.) State v. Rish, 17 Conn. App. 447, 456, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S.Ct. 72, 107 L.Ed.2d 38 (1989). The court further notes that the judges of the Superior Court are divided as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment. Schratwieser v. Hartford Casualty Ins. Co., 44 Conn. App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997). There has been no appellate determination as to whether or not it may be proper for a trial court to consider deposition testimony in ruling on a motion for summary judgment. See Collum v. Chapin, 40 Conn. App. 449, 450 n. 2 (1996). The only other form of documentary proof offered is Richard LaFountain's police report which fails to establish an undisputed fact as to the intent of Christopher Lee. Accordingly, because genuine issues of material fact exist, Safeco's motion for summary judgment must be denied.
Conclusion
Safeco has not met its burden of demonstrating the absence of genuine issues of material fact, entitling it to judgment as a mater of law. Furthermore, this case presents complex issues of fact which are inappropriate for summary judgment. The Lees' motion for summary motion is moot in light of the court's holding in Safeco's motion for summary judgment, which requires it to provide a defense to the Lees in the Travelers case and the Arons case.
D. Michael Hurley Judge Trial Referee