Opinion
No. CV 10 6007133
April 8, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT #104
This is a declaratory judgment action brought by the plaintiff to determine its obligation to defend and indemnify the defendant, Nancy Glass, under a homeowner's insurance policy issued by the plaintiff. The defendant, Glass, is the named defendant in a civil action pending in superior court in the judicial district of Waterbury, captioned Prevalla v. Glass, brought by the co-defendant in this matter, Adrian Prevalla. Safeco is providing Glass a legal defense in the Prevalla action under a full reservation of rights.
The plaintiff in the Prevalla action alleges that on October 9, 2008, Glass served him a piece of ginger cake containing marijuana and that he suffered illness, injuries, and losses as a result thereof. The complaint, attached to the memorandum in support of the motion for summary judgment, alleges that "[t]he illness, injuries and losses of the plaintiff Adrian Prevalla, were caused by the carelessness and negligence of the defendant, Nancy B. Glass, in one or more of the following ways:
a. in that she negligently and carelessly included a marijuana cannabinoid substance in the cake batter, causing harm to the plaintiff;
b. in that she failed to exercise reasonable care in baking the cake which she served the plaintiff;
c. in that she improperly and negligently did not follow the recipe in preparing the cake batter before baking it and serving it to the plaintiff;
d. in that she negligently risked an injury to the plaintiff by feeding him said cake;
e. in that she negligently trespassed upon the plaintiff by feeding him said cake;
f. in that she committed a negligent invasion of the plaintiff's body by feeding him said cake;
g. in that she negligently and carelessly did not warn the plaintiff of her inclusion of the marijuana substance in the cake, which she fed to the plaintiff, Adrian Prevalla.
The Prevalla action was initiated by writ, summons and complaint on February 2, 2009, with a return date of March 10, 2009. Glass immediately forwarded a copy of the lawsuit to Safeco, and Safeco represented to her through a reservation of rights letter that it would defend the lawsuit on her behalf. Attorney John Turner filed an appearance on her behalf in the Prevalla action, and has filed numerous pleadings and made appearance at hearings and court proceedings. The matter was scheduled for trial in June 2010, and jury selection is to commence on April 12, 2011.
Safeco initiated this declaratory judgment action by writ, summons and complaint dated September 16, 2010, and returnable on October 12, 2010, approximately 19 months after the Prevalla action was filed. The present motion for summary judgment was filed by Safeco on January 29, 2011, together with a memorandum of law in support of the motion with exhibits. Both Glass and Prevalla filed a memorandum in opposition to the motion for summary judgment on March 31, 2011, and Safeco filed a reply to the objections on April 4, 2011, when the court heard argument on the motion for summary judgment.
Only Exhibit B, a copy of the homeowner's insurance policy, was certified in accordance with Practice Book § 17-46.
Safeco attached the reservation of rights letter to its reply memorandum without any certification. The court allowed Safeco to provide the certification by the end of the day on April 4, 2011, which it did.
"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." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues 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 . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The court may address the merits of a declaratory judgment action upon a motion for summary judgment. United States Automobile Assn. v. Marburg, 46 Conn.App. 99, 102, n. 3, 698 A.2d 919 (1997). "An action for declaratory judgment is a special proceeding." Wilson v. Kelley, 224 Conn. 110, 121, 617 A.2d 433 (1992). "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.) St. Paul Fire and Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380-81, 577 A.2d 1093 (1990), aff'd, 222 Conn. 823, 610 A.2d 1281 (1992). "There is no question that a declaratory judgment is a suitable vehicle to test the rights and liabilities under an insurance policy." Id., 380. Declaratory judgment actions have been used to determine whether an insurer has a duty to defend and indemnify its insured. See Holy Trinity Church of God in Christ v. Aetna Casualty Surety Co., 214 Conn. 216, 571 A.2d 107 (1990).
The issue here is whether the claim for the alleged injuries set forth in the Prevalla complaint is excluded from coverage by provisions of the homeowner's policy which excludes claims for injuries "arising out of the use, sale, manufacture, delivery, transfer or possession by any person of a controlled substance(s). Controlled substances include but are not limited to cocaine, LSD, marijuana, PCP and all narcotic drugs." Plaintiff's Exh. B to Memorandum.
"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 with the terms of the insurance policy. In such circumstances, the facts are not in dispute. . . ." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., 267 Conn. 592, 599, n. 7, 840 A.2d 1158 (2004).
"Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Montoya v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006).
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." (Internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199, 901 A.2d 666 (2006).
"[T]he duty to defend is considerably broader than the duty to indemnify . . . [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 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 . . . In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case . . . Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy. Because the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify." (Emphasis in original; citations omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire and Casualty Co., CT Page 9014 268 Conn. 675, 687-88, 846 A.2d 849 (2004).
"[I]f the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107 (2003). "[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). "[T]he duty to defend means that the insurer will defend the suit, if the injured party states a claim, which . . . is for an injury covered by the policy; it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact covered." (Internal quotation marks omitted.) Id.
Safeco has submitted a certified copy of the policy in order to prove the provisions therein do not cover the intentional acts of the defendant. Exhibit B to Safeco's Motion for Summary Judgment. The policy states, in pertinent part:
"Coverage E — Personal liability and Coverage F — Medical Payments Coverage to not apply to bodily injury or property damage . . . arising out of the use, sale, manufacture, delivery, transfer or possession by any person of a controlled substance(s). Controlled substances include but are not limited to cocaine, LSD, marijuana, PCP and all narcotic drugs." Id.
"[I]t is generally understood that for liability for an accident or any 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 offence in order to meet the requirement that there be a causal relationship between the accident or injury and that occurrence or offense. To arise out of means to originate from a specified source. The phrase arising out of it usually interpreted as indicating a causal connection." (Internal quotation marks omitted; citations omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001).
The court could find no Connecticut case which interpreted the controlled substance exclusion. The plaintiff cited two cases which have considered the exclusion and for the most part have construed it broadly. In Prudential Property Casualty Co. v. Brenner, 350 N.J.Super. 316, 795 A.2d 286 (2002), the New Jersey Appellate Division affirmed summary judgment in favor of Prudential based on the controlled substance exclusion. That case involved a claim arising out of the death of a drug dealer who was shot during an attempt to rob him of a large quantity of marijuana. His estate filed an action for wrongful death against the alleged thieves, and the parents of one, Bryan Brenner, had a homeowner's policy with Prudential. Prudential brought a declaratory judgment action to determine that the claim was excluded by virtue of the controlled substance exclusion. The trial court granted Prudential's motion for summary judgment and the New Jersey Appellate Division affirmed.
The second case cited by the plaintiff, Westfield National Ins. Co. v. Long, 348 Ill.App.3d 987, 811 N.E.2d 776 (2004), reached a similar result. In that case, Westfield issued a homeowner's policy to Robert Long. Long put methamphetamine in a woman's drink, she overdosed, and died as a result. Her estate sued, alleging that her death was caused by Long's distribution of an illegal drug. Westfield brought a declaratory judgment action, and the trial court granted Westfield's motion for judgment on the pleadings. The Illinois Court of Appeals affirmed the trial court.
Our sister state recently addressed the issue of the controlled substances exclusion as it relates to an exception for prescribed legitimate use of a controlled substance. In Mass. Property Insurance v. Gallagher, 75 Mass.App.Ct. 58, 911 N.E.2d 808 (2009), Stephen McMaster died of an apparent suicide after ingesting an overdose of propoxyphene. His mother brought an action on behalf of his estate against John Scaduto, claiming that Scaduto had negligently left the controlled substance in his home where McMaster had access. Scaduto had obtained the propoxyphene pursuant to a physician's prescription. Mass. Property Insurance, who had issued a homeowner's policy to Scaduto which contained an exclusion for claims for bodily injury arising out of the use, sale . . . transfer or possession . . . of a controlled substance brought a declaratory judgment asserting that the policy did not provide coverage. The trial court correctly found that the claim was excluded from coverage by the controlled substance exclusion, and moreover, was not covered under the exception for prescribed use.
Glass argues that the Safeco policy provides coverage for negligent acts and that the complaint in the Prevalla action alleges a number of acts of negligence that are covered. However, the only defect alleged with the cake ingested by Prevalla is the inclusion of marijuana. Prevalla's injuries are inextricably linked to Glass' use of, and Prevalla's ingestion of, marijuana. "In Connecticut, we long have eschewed the notion that pleadings should be read in a hyper technical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." (Internal quotation marks omitted.) Clinch v. Generali-U.S. Branch, 110 Conn.App. 29, 37, 954 A.2d 223 (2008) (where the court rejected the argument that although a variety of causes for the plaintiff's injuries could possibly be unrelated to the assault and battery alleged, "the negligent acts were tied inextricably by the language of the complaint to assault and battery").
The plaintiff has not put forth any pleading in this case that the facts presented in the Prevalla complaint are in dispute. Therefore, in comparing the allegations of the complaint in the Prevalla action with the terms of the insurance policy, the court finds that the homeowner's policy excludes coverage for such actions and Safeco has no duty to defend the defendant, Glass. The court finds that the facts, as pled, place Glass beyond the coverage afforded under the policy. The court finds that her actions as described in the Prevalla complaint — as a matter of law — are excluded under the policy.
It is unnecessary for the court to reach the issue of the intentional and criminal acts exclusion as set forth in the policy.
Both the defendants Glass and Prevalla argue that by acknowledging Prevalla's claim and defending Glass in the Prevalla action, Safeco has waived its rights to disclaim coverage and/or Safeco is somehow estopped from asserting policy exclusions due to its course of conduct in defending the Prevalla action. Further, Prevalla claims that Safeco never indicated that it would file a declaratory judgment action raising insurance coverage issues.
"General reservations of positions regarding coverage do not constitute waivers of defenses as to coverage, because waiver requires the intentional relinquishment of a known right." Southridge Capital Management, LLC. v. Twin City Fire Ins. Co., Superior Court, judicial district of Middlesex, Docket No. X04 CV 020103527 (September 8, 2006) [ 42 Conn. L. Rptr. 193], citing Pizzini v. American Int'l. Specialty Lines Ins. Co., 210 F.Sup.2d 658, 674 (E.D.PA. 2002) (letter by insurer reserving all rights and defenses sufficient to avoid wavier).
"There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other." Breen v. Aetna Cas. Surety Co., 153 Conn. 633, 643, 220 A.2d 254 (1966).
Safeco provided notice to Glass that it may later contest its contractual obligation to pay for her defense or indemnify her in the reservation of rights letter dated April 13, 2009. "Any action taken by Safeco to date should not be construed as a wavier of any of its rights. We specifically reserve our right to rely upon each and every term and provision thereof, and to disclaim liability or deny coverage for any additional reasons which may exist or which may hereafter appear and come to our attention. Other than what is stated in this letter, no action taken by Safeco should be construed as an admission of coverage under the subject policies . . . Safeco reserves the right to file a declaratory judgment action to seek a judicial determination of coverage for this claim." Exhibit A to Plaintiff's Reply to Objections, p. 5.
Although Glass submitted an affidavit asserting that Safeco represented to her that it would defend the lawsuit on her behalf, and "there was no representation or indication by Safeco that it would not defend me," this is clearly not the case. This representation is incontrovertibly refused by Safeco's reservation of rights letter dated April 13, 2009, which Glass acknowledged that she received. Although she claims she was never informed that Safeco would not defend her, the only detriment she asserts at this juncture is that she cannot afford an attorney.
Both Prevalla and Glass argue that Safeco delayed in filing the declaratory judgment action as well as the motion for summary judgment, and the trial in the Prevalla action is set for jury selection on April 12, 2011. The motion for summary judgment was filed in January 2011, and Safeco did not object to any extensions of time filed by both defendants in order to file their objections.
CONCLUSION
Safeco seeks a declaratory judgment that it has no duty to defend Glass in the underlying Prevalla action, and is not obligated to indemnify her against damages arising out of that action, and moves for summary judgment. The court finds that Safeco has not duty to defend or indemnify Glass because the incident is excluded from liability coverage under the homeowner's insurance policy. The plaintiff's motion for summary judgment is granted.