Opinion
CV146025075S
03-29-2016
Western World Ins. Co. v. 138 South Gate, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara Brazzel-Massaro, J.
INTRODUCTION
The instant action was filed on September 17, 2014 by way of a writ, summons and complaint dated September 3, 2014. The plaintiff filed the action as a declaratory judgment in regards to a claim by the defendant 138 South Gate LLC for insurance coverage under a Commercial General Liability Policy for personal injury claims from Michael Falcone Jr., William Burr, Andre Turning Araujo and Michael Barbagallo. The plaintiff filed a second amended complaint on April 1, 2015. The individual defendants have each filed a complaint seeking damages and naming the defendant in the action. The plaintiff has filed this action as a declaratory judgment alleging that it is not obligated to provide coverage to the individual defendants. The plaintiff has filed a motion for summary judgment on this basis to which the defendant objected. The court heard argument at the short calendar on December 7, 2015.
FACTS
On April 1, 2015, the plaintiff, Western World Insurance Company (Western World), filed a Second Revised Amended Complaint against defendants 138 South Gate, LLC; Michael Falcone, Jr.; William Burr; Andre Turning Araujo; and Michael Barbagallo. This motion for summary judgment only pertains to the defendant 138 South Gate LLC, and therefore, 138 South Gate, LLC will be the only party referred to as the " defendant" in this memorandum.
The plaintiff's amended complaint alleges the following facts. On October 10, 2013, Falcone, Burr, Araujo, and Barbagallo were lawfully at the premises located at 138 South Gate Lane in Southport, Which is owned by the defendant. The men were attempting to ascend a stairwell with a 300 to 400 pound bathtub encased in a wooden crate and tied to a hand truck. The stairwell collapsed without warning, causing Falcone, Burr, Araujo, Barbagallo and the bathtub to crash through the first floor opening and into the basement stairs. As a result of this incident, all four men suffered severe injuries and each filed a separate complaint against the defendant. Falcone, Burr, Araujo, and Barbagallo were employees of subcontractors hired by the defendant.
The plaintiff issued a commercial general liability insurance policy to the defendant, effective from May 21, 2013 to May 21, 2014. The policy included a duty to defend clause, as well as an exclusion of coverage for claims arising out of injury to any subcontractor or contractor hired by the defendant. In their complaint against the defendant, Falcon, Burr, Araujo, and Barbagallo each assert claims for personal injuries resulting from the accident. The plaintiff has tendered a defense to the defendant in all four underlying actions and is defending under a full reservation of rights
On October 14, 2015, the plaintiff filed a motion for summary judgment, accompanied by a supporting memorandum with various exhibits. In its memorandum, the plaintiff seeks a declaratory judgment that it has no obligation to provide coverage under the commercial general liability insurance policy for each of the underlying claims. On December 2, 2015, the defendant submitted a memorandum of law in opposition, with the four complaints of the underlying actions attached as exhibits. The plaintiff filed a reply and a certified copy of the insurance policy on December 3, 2015.
DISCUSSION
" 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." " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o 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 . . . 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). " 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 . . ." Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The plaintiff argues that liability coverage and its duty to defend under the policy do not apply to the underlying actions because they were brought by the employees of subcontractors, and therefore fall under the policy exclusion. The defendant counters that the complaints in the underlying actions do not specifically allege that the individuals were hired by or through the defendant, and pursuant to the four corners doctrine, any outside information regarding the status of the men as subcontractors is irrelevant.
" 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 [underlying] complaint with the terms of the insurance policy." Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co. 254 Conn. 387, 395, 757 A.2d 1074 (2000). " Under the well-established four corners doctrine . . . [a]n insurer's duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage . . . Indeed, [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 . . . The 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 later situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Sielski, 159 Conn.App. 650, 655, 123 A.3d 92 (2015). Accordingly, " the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage . . . (Emphasis in original; internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 806, 67 A.3d 961 (2013).
In the present case, the court must review each of the four underlying complaints to determine whether they fall within coverage under the policy. The plaintiff's amended complaint includes a copy of Falcone's April 1, 2014 complaint against the defendant. The defendant's opposition to the motion for summary judgment includes as an exhibit Falcone's second revised complaint, dated February 4, 2015. " Before the court compares the language in [the] underlying complaint with that of the policy, it must address a threshold issue, namely whether the court must analyze the first or second amended underlying complaint." Monroe v. Discovery Property & Casualty Ins. Co., Superior Court, judicial district of Bridgeport, Docket No. CV 12-6026835 (August 11, 2015, Kamp, J.) (60 Conn. L. Rptr. 871, 874). While appellate courts have not spoken on this issue, the Superior Court and the United States District Court for the District of Connecticut have chosen to consider only the latest filed complaints in order to determine the insurer's duty to defend. Nationwide Mutual Ins. Co. v. Mortensen, 222 F.Supp.2d 173, 182-83 (D.Conn. 2002); Monroe v. Discovery Property & Casualty Ins. Co., supra, 60 Conn. L. Rptr. 874. Consequently, this court will consider only Falcone's second revised complaint in determining whether the plaintiff's duty to defend applies to that underlying action. Notably, even where the nonmoving party has no obligation to submit documents in opposition to a motion for summary judgment because the moving party's own evidence is insufficient to establish that there is no genuine issue of material fact, the court nevertheless may consider whether the evidence the nonmoving party chooses to submit supports the moving party's claim. Allstate Ins. Co. v. Barron, 269 Conn. 394, 408-09, 848 A.2d 1165 (2004).
The policy provided by the plaintiff includes a duty to defend clause, which states: " We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking those damages. However, we will have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply . . ." The insurance policy contains the following contractor/subcontractor exclusion: " This insurance does not apply to any claim arising from injury to any contractor or subcontractor hired by or through any insured or to any claim arising from injury to any 'employee' or 'temporary worker' of any contractor or subcontractor who was hired by or through any insured.
" A contractor or subcontractor will be considered to be hired by or through any insured if the contractor or subcontractor was hired directly by any insured or was hired by another contractor or subcontractor who was hired by any insured."
Pursuant to this exclusion, any claim of injury by a contractor or subcontractor hired by the defendant is not covered under the policy. The exclusion also unambiguously states that in order for an individual to be considered a contractor or subcontractor, he or she must have been hired by the defendant. The issue now before the court is whether, from the four corners of the underlying complaints, it is clear that the employers of the men injured were hired by the defendant as subcontractors. If their employers were hired by the defendant, the exclusion provision applies and the plaintiff will not have a duty to defend against the underlying claims. In making this determination, the court can only look within the four corners of the underlying complaints.
The facts alleged in the underlying complaints do not explicitly state that the men were contractors or subcontractors of the defendant. With the exception of Falcone's second revised amended complaint, the underlying complaints were submitted as exhibits to the plaintiff's amended complaint. Barbagallo's complaint alleges that he " was lawfully on the premises . . . as a contractor employed by Electrical Connection, Inc." Similarly, Burr's complaint alleges that he " was lawfully on the premises . . . in the course of his employment with All American Heating & Air Conditioning, Inc." Similarly, Burr's complaint alleges that he " was lawfully on the premises . . . in the course of his employment with All American Heating & Air Conditioning, Inc." Araujo's complaint alleges that he " was lawfully upon the premises as a laborer and/or worker aiding in the construction of the aforementioned dwelling on the premises. In all three of those complaints, it is not alleged that Electrical Connection, Inc., All American Heating & Air Conditioning, Inc., or Araujo were hired by the defendant as subcontractors, only that the individuals were acting in the course of their employment.
In paragraph four of Falcone's second revised amended complaint, it is alleged that " Michael Falcone, Jr., an invitee, was lawfully on the premises located at 138 South Gate Lane, Southport, CT 06890 as an employee of a subcontractor known as All American Heating & Air Conditioning Inc. who had been retained by the defendant Southgate." (Emphasis added.) It is unclear from the face of the complaint what meaning was intended by the word " retained, " which could indicate that Falcone was employed by the defendant, or alternatively, that he was held by the defendant in some other manner. This ambiguity must be construed in favor of the non-moving party.
The court cannot determine from the four corners of the underlying complaints that the claims fall within the subcontractor exclusion of the policy, and therefore the plaintiff has not met its burden as the movant for summary judgment. Consequently, since the allegations in these complaints " [fall] even possibly within the coverage . . . the insurance company must defend the insured." (Internal quotation marks omitted.) DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).
CONCLUSION
For the foregoing reason, the court denies the plaintiff's motion for summary judgment.