Opinion
No. CV-075017514S
July 7, 2010
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, The Hanover Insurance Company ("Hanover"), and the defendant, Danbury Insurance Company ("Danbury"), both seek summary judgment in this action in which Hanover seeks to recover a pro rata share of amounts it paid under a settlement made on behalf of its insured, Deborah Gallo. Danbury claims that it had no duty to defend or indemnify Deborah Gallo, or that its policy provided coverage in excess of that of the Hanover policy.
Facts
On August 19, 2005 Hanover insured Deborah Gallo ("Gallo") under a Homeowner's Policy of insurance which covered real property owned by Gallo at 23 Old Colony Road, Old Lyme, Connecticut ("Old Lyme Premises"). The Hanover Policy had a personal liability limit of $300,000. On August 19, 2005 Danbury insured Gallo under a homeowner's policy which covered real property owned by Gallo at 153 Fall Mountain Road, Bristol, Connecticut ("Bristol Premises"). The Danbury Policy also had a personal liability limit of $300,000.
The Danbury Policy provides, in pertinent part, that Danbury will pay sums for which the insured is liable because of bodily injury or property damage to:
2. a person away from the insured premises if the bodily injury:
d. is caused by an animal owned by or in the care of an insured.
The Danbury Policy contains an exclusion which provides, "This policy does not apply to bodily injury or property damage which results directly or indirectly from . . . premises that are owned, rented or controlled by an insured and that are not the insured premises."
The Hanover Policy provides:
7. Other Insurance. If a loss covered by this policy is also covered by other insurance, we will pay only the portion of the loss that the limit of liability that applies under this policy bears to the total amount of insurance covering the loss.
The Danbury Policy provides:
Coverage L — Personal Liability — This insurance is excess over other valid and collectible insurance that applies to the loss or claim.
On August 19, 2005 Gallo owned a dog named Luna, who was at the Old Lyme Premises when Robert Spitz, a minor, went onto that premises to retrieve his Frisbee. Robert stated in a statement, provided by Danbury in conjunction with its Cross Motion for Summary Judgment, that Luna was hidden by the porch and came running out from behind the porch and bit Robert just as he was about to pick up the Frisbee. Robert's father brought an action against Gallo in the Supreme Court of New York. Hanover settled that claim by payment of $50,000 on February 16, 2007.
Neither the original complaint in this action, nor the complaint filed in response to the defendant's request to revise contain any allegations as to when or whether demand was made upon Danbury for defense and/or indemnification with respect to the underlying dog-bite claim.
This court previously denied both motions for summary judgment on the ground that an issue of fact was present. However, the plaintiff moved to reargue and the court granted that motion. Reargument occurred on March 15, 29010.
Discussion of the Law and Ruling
The plaintiff argues that the Danbury Policy covered injuries caused by the insured's dog even if they occurred on a premises other than the insured premises. It argues based on one case Sacharko v. Center Equities Ltd, 2 Conn.App. 439 (1984), that where two policies contemplate the particular risk equally, liability will be prorated based on the total policy limits. The foregoing statement was dicta in Sacharko.
The defendant argues against the plaintiff's motion and in favor of its Cross Motion for Summary Judgment that its policy contained an exclusion for injury which results directly or indirectly from premises that are owned by the insured and that are not the insured premises. While there is no case law on point in Connecticut, courts in other jurisdictions have enforced similar exclusions. In Bianco v. Travelers Insurance Co., 99 A.D.2d 629 [3d Dept 1984], the Appellate Division of the New York Supreme Court held that an exclusion which applied to injuries "arising out of any act or omission in connection with premises" other than the insured premises owned by the insured, applied where a child was bitten by the insured dog at a separate property. Similarly, in St. Paul F. M. Ins. v. Ins. Co. of No. America, 501 F.Sup. 136 (W.D.Va. 1980), the plaintiff argued that where the insured set a fire on uninsured property which spread to adjourning properties that the exclusion of "property damage arising out of any premises, other than an insured premises, owned, rented or controlled by any insured" did not apply. It argued that the damages arose not from the property, but from the act of people setting fire on the property. The District Court rejected that argument. It interpreted the term "arising out of" to mean "incident to or having connection with," and held that the fire had a connection to the uninsured premises and, therefore, the exclusion applied.
The plaintiff relies on cases from other jurisdictions which hold that exclusions of uninsured premises should be limited to "conditions" of those premises and a dog is not a condition of a premises. See, i.e. Lititz Mutual Ins. Co. v. Branch, 561 S.W.2d 371 (Mo.Ct.App. 1997); Callahan v. Quincy Mutual Fire and Insurance Co., 50 Mass.App.Connecticut. 260, 736 N.E.2d 857 (2000).
The language of the exclusion in the Danbury Policy, "[t]his policy does not apply to bodily injury or property damage which results directly or indirectly from . . . premises that are owned, rented or controlled by an insured and that are not the insured premises," is not limited to "conditions" of the property, but, rather, applies to all injuries resulting "directly or indirectly" from the premises. Moreover, while the plaintiff has provided no evidence as to the facts of the underlying dog-bite case, the defendant has. Even if we construe the exclusion to be limited to injuries arising from "conditions" of the uninsured premises, the defendant has presented uncontroverted evidence that the dog bite resulted from a condition of the Old Lyme Premises — the porch hid the dog. Based on the foregoing, the court enters summary judgment in favor of the defendant and denies the plaintiff's motion for summary judgment.
The defendant also argues that its "other insurance" clause is an "excess" clause, while the plaintiff's other insurance clause is a "pro rata" clause. The court agrees. Many courts have held that a pro rata clause is deemed primary, and an excess clause is secondary. See USAA Cas. Ins. v. Univ. U/W Ins., 138 N.C. App. 684, 532 S.E.2d 250 (2000); Donahue Constr. Co. v. Transport Indem. Co., 7 Cal.App.3d 291, 302 (1970). This provides an additional basis for the granting of summary judgment in favor of the defendant and denying the plaintiff's summary judgment motion.
Danbury argues that an additional ground exists for granting summary judgment in its favor and denying the summary judgment of Hanover: that Hanover is not entitled to contribution because when it made the payment to the plaintiff on the underlying dog-bite case, it was acting as a "volunteer."
In Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 586 A.2d 567 (1991), the Connecticut Supreme Court upheld a ruling by the trial court which denied the plaintiff's request for contribution on the grounds, inter alia, that the plaintiff had made full (as opposed to pro rata) payment to the insured as a volunteer. The Court stated:
The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation. Kaplan v. Merberg Wrecking Corporation, supra, 412; Fidelity Casualty Ins. Co. v. Sears, Roebuck Co., 124 Conn. 227, 231-32, 199 A. 93 (1938); Azzolina v. Sons of Italy, 119 Conn. 681, 692, 179 A. 201 (1935); Waters v: Waters, 110 Conn. 342, 345, 148 A. 326 (1930); Bulkeley v. House, 62 Conn. 459, 467, 26 A. 352 (1893).
In the circumstances of this case, we are unpersuaded that the trial court was required to conclude that Hanover had established an equitable basis for a right to contribution. It is not clear, given the pro rata liability clauses in Hanover's policy and Fireman's oral binder, that Hanover could legally have been compelled to pay the fire loss in its entirety, classically a prerequisite to an action for contribution. Waters v. Waters, supra. Although the doctrine that denies a "volunteer" a right to contribution has been criticized, we have not had the occasion to confront this issue directly and we need not decide it in this case.
Hanover Ins. Co. v. Fireman's Fund Ins. Co., supra, at 353-54.
As in Hanover Ins. Co. v. Fireman's Fund Ins. Co., supra, the plaintiff has failed to establish an equitable basis for a right to contribution, and therefore, it appears that the payment it made on the underlying case was made as a volunteer. This constitutes an additional ground to deny Hanover's Motion for Summary Judgment and grant Danbury's Cross Motion for Summary Judgment.
In summary, the plaintiff's Motion for Summary Judgment is denied and the defendant's Motion for Summary Judgment is granted.