Opinion
No. 410133
November 7, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #119
The plaintiff, Vermont Mutual Insurance Company, has filed a one-count complaint seeking a declaratory judgment pursuant to General Statutes § 52-29 and Practice Book § 17-54, against the defendant, Joseph Walukiewicz, to determine whether it has a duty to defend or indemnify him in connection with a personal injury lawsuit. In that lawsuit; Brown v. Robishaw, Superior Court, judicial district of New London, Docket No. CV 04 0568833 (underlying complaint); Kevin Brown sued Walukiewicz for the injuries he sustained on April 15, 2002. On July 19, 2005, a jury returned a verdict against Walukiewicz on a theory of negligence. At the time Brown sustained his injuries, Walukiewicz had a homeowner's policy with Vermont Mutual.
Vermont Mutual filed an amended complaint on March 4, 2005, to cite in Brown as a defendant. Brown also filed a motion to intervene on March 22, 2005, which was granted. Walukiewicz and Brown each answered, alleging as a special defense that the July 19, 2005 jury verdict rendered in the underlying case found that Walukiewicz acted negligently when Brown fell down the stairs, thus precluding Vermont Mutual from relitigating any intent on the part of Walukiewicz. Vermont Mutual replied to Walukiewicz's special defense.
On April 13, 2006, Vermont Mutual filed a motion for summary judgment on the ground that Brown's injuries were caused by Walukiewicz's intentional acts. Because the homeowner's policy does not cover injuries Walukiewicz intended to cause, Vermont Mutual claims that it is not obligated to indemnify or defend Walukiewicz in this matter, and, therefore, it is entitled to judgment as a matter of law. Vermont Mutual filed a memorandum of law in support of its motion and submitted various documentary evidence. On June 30, 2006, Brown filed a memorandum of law in opposition to the motion for summary judgment and submitted various documentary evidence. On July 6, 2006, Walukiewicz filed a memorandum of law in opposition and also submitted various documentary evidence. On July 14, 2006, Vermont Mutual filed a reply memorandum. The court heard the motion on July 17, 2006.
Vermont Mutual and Brown both have submitted certified copies of the homeowner's insurance policy between Walukiewicz and Vermont Mutual. Although none of the parties have submitted a certified copy of the underlying complaint, the court takes judicial notice of it and relies on it for this decision. See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994).
Brown has submitted certified copies of the complete trial transcripts of July 13 and 14, 2005. Although Vermont Mutual and Walukiewicz relied on uncertified excerpts, none of the parties have objected to their admissibility. This court will consider the transcripts. See Barlow v. Palmer, 96 Conn.App. 88, 92, CT Page 20611 898 A.2d 835 (2006) ("In interpreting the rules liberally, the deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where, as here, both parties submitted uncertified deposition transcripts. Therefore, a court properly could consider such a submission without objection"). The parties also submitted additional documents, but the court does not need to rely on them to determine the issues in the present case.
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." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "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 non-moving 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Vermont Mutual moves for summary judgment on the ground that there is no coverage under its homeowners' policy issued to Walukiewicz for the injuries Brown sustained as a result of Walukiewicz intentionally grabbing and throwing Brown down the staircase. In support of the motion, Vermont Mutual argues that, since Brown's injuries were the result of an intentional act, and not an accident, his injuries are not an "occurrence" within the meaning of the policy. Vermont Mutual further argues that the nature of the acts and the circumstances surrounding them, give rise to an inference that Walukiewicz intended to injure Brown, thereby barring coverage under the policy's exclusion for intentional acts.
In response, Brown argues that Walukiewicz never intended to injure Brown, thereby raising issues of fact as to whether the conduct at issue is an "occurrence" within the coverage of the insurance policy. Walukiewicz, in his memorandum in opposition to the motion for summary judgment argues that he pushed Brown aside to encourage him to leave the premises and that he did not intend Brown to fall backwards over the deck railing.
As our Supreme Court has repeatedly stated, an insurer's "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 that its duty to indemnify, is determined by reference to the allegations in the [underlying] complaint." (Citations omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004). "In construing the duty to defend as expressed in an insurance policy, [t]he 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 . . . If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Citation omitted; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005). "On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 354, 773 A.2d 906 (2001). "[T]he inquiry into an insurer's duty to defend focuses on the facts alleged, not legal theories . . . Accordingly, simply because there are allegations of negligence in the complaint does not necessarily mean there has been an accident." (Citation omitted; internal quotation marks omitted.) Times Fiber Communications, Inc. v. Travelers Indemnity Co., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 030196619 (February 2, 2005, Rogers, J.) (38 Conn. L. Rptr 642, 648).
"Construction of a contract of insurance presents a question of law . . ." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 40, 801 A.2d 752 (2002). "Our analysis of the language of the insurance contract is governed by the well established principle of insurance law that policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters, and that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder's expectations should be protected as long as they are objectively reasonable from the layman's point of view . . . The premise behind the rule is simple. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests . . . A further, related rationale for the rule is that [s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 80 Conn.App. 364, 371, 835 A.2d 91 (2003), rev'd in part on other grounds, 274 Conn. 457, 876 A.2d 1139 (2005).
"It is the function of the court to construe the provisions of the contract of insurance . . . The [i]nterpretation of an insurance policy . . . involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . . [giving the] words . . . [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the insured . . ." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Ass'n. v. Fontaine, 278 Conn. 779, 784-85, 900 A.2d 18 (2006). "[T]his rule of construction favorable to the insured extends to exclusion clauses . . . Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004).
Vermont Mutual argues it does not have a duty to defend because the event was not an occurrence, and, therefore, not within the coverage of the policy. To determine if the stated facts in the underlying complaint bring the injuries sustained by Brown within the coverage of the insurance policy, the court must examine the underlying complaint. Therein, in count one, Brown alleges that his "injuries and losses were caused by the carelessness of . . . Walukiewicz, in one or more of the following ways: (a) [in that] he negligently and carelessly approached [Brown] so as to cause him to fall and incur physical injury; (b) [in that] he physically handled the plaintiff in a manner which caused the plaintiff personal harm; and (c) [in that] he pushed or moved the plaintiff causing the plaintiff to fall."
The insurance policy issued to Walukiewicz provides coverage for bodily injury or property damage caused by an "occurrence." The policy defines "occurrence" as "an accident." The policy does not define the term "accident." In the context of insurance policy provisions, our Supreme Court has stated that "[t]he word `accident' has been defined as `[a]n unintended and unforseen injurious occurrence' . . . `an occurrence for which no one is responsible' . . . and `an event of unfortunate character that takes place without one's foresight or expectation.'" (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 408 n. 10, 848 A.2d 1165 (2004). The policy in the present case does not contain any provision that suggests that the term occurrence should include any conduct other than accidental conduct, and the policy particularly excludes coverage for intentional conduct.
Vermont Mutual argues that the predicate facts rather than the "artful pleading of liability" is what the court must look at to determine whether there is a duty to defend. Vermont Mutual maintains that merely because the legal theories in the underlying complaint are couched in terms of negligence, the event causing the injury, which the court must dwell upon, was not accidental. Vermont Mutual asserts that in the trial transcript, Walukiewicz testified that he intentionally grabbed and threw Brown, an act which can only have been intentional. Brown reasserts that the underlying complaint was framed only in negligence, that the court charged the jury on negligence only, and, therefore, the verdict was in negligence. He also relies on the trial transcript and points out that Walukiewicz testified that he had no intention of hitting or causing Brown any physical injury, and, therefore, the court cannot conclude as a matter of law that the event complained of was not an "occurrence." In his memorandum of law in opposition to the motion for summary judgment, Walukiewicz maintains that genuine issues of material fact exist as to whether a reasonable person could conclude that he pushed Brown aside to encourage Brown to leave the premises and not to injure him intentionally. Based on the evidence submitted by the parties, the court finds that there is a genuine issue of material fact as to whether Brown's injuries were an accident under the insurance policy. Accordingly, Vermont Mutual's motion for summary judgment is denied as to the duty to defend.
"Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case . . . Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury." (Internal quotation marks omitted.) Amex Assurance Co. v. Horobin, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0258572 (June 15, 1998, Dorsey, J.) ( 22 Conn. L. Rptr. 280), quoting Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
Vermont Mutual's complaint contains only one count. Partial summary judgment is not permitted on a single count of a complaint. Pitcher v. Hamrick, Superior Court, judicial district of New London, Docket No. CV 03 0566770 (April 12, 2005, Jones, J.). Because the court hereby denies Vermont Mutual's motion for summary judgment as to the duty to defend, the court must also deny the motion as to the duty to indemnify.