Opinion
No. CV03-0518841S
September 3, 2003
MEMORANDUM OF DECISION
This is an action brought by the plaintiff, Allstate Insurance Company (Allstate), against the defendant Stephanie Ann Dridi, seeking a declaratory judgment that it does not have the duty to defend Dridi in a suit currently pending in the Connecticut Federal District Court. Allstate has now moved for summary judgment.
The other defendants, Steven Szekeres and Denise Miller, are the plaintiffs in the District Court action and are presumably named to comply CT Page 10879-ap with Practice Book § 17-56(6)(b).
Allstate has attached to its motion for summary judgment the federal complaint, which may be summarized as follows: The federal plaintiffs have brought an action under 42 U.S.C. § 1983 arising from an incident where a state victim advocate received information from Dridi "falsely and maliciously" accusing one plaintiff of threatening her with a handgun. This information "caused [the victim advocate] to invoke the powers of her office to violate the Fourth Amendment rights of the plaintiffs . . ." The victim advocate approached the Monroe Police Department and "falsely and maliciously stated to one or more officers of that department that the plaintiff . . . was a `paranoid schizophrenic,' that he owned a .357 magnum handgun, that he had threatened . . . Dridi with said handgun, and that he resided . . . in Monroe." The information was relayed by the police to a judge who issued a search warrant for the federal plaintiff's residence.
Szekeres v. Schaeffer, United States District Court for the District of Connecticut, Civil Action Number 301 CV 02099 (November 1, 2001).
The federal complaint continues by alleging that Dridi "had no basis for making the aforesaid false statements and . . . made such statements for the purposes of inflicting injury upon the plaintiffs." A warrant was signed by the judge; "[n]o warrant would have been issued had the defendants not made the false statements described above." The warrant was subsequently executed at the federal plaintiffs' residence "and the plaintiffs were subjected to the said search of their property, to humiliation and fear, and suffered severe emotional distress."
The complaint concludes by stating that in fact no gun or weapon was seized at the federal plaintiffs' home. "The conduct of the defendants [including Dridi] described above was extreme and outrageous and was CT Page 10879-am carried out for the purpose of inflicting emotional distress upon the plaintiffs."
The federal plaintiffs claim that the defendants, including Dridi, violated their fourth amendment rights. They also claim that under Connecticut common law the defendants slandered the plaintiffs and subjected them to intentional and negligent infliction of emotional distress.
In addition to the complaint, Allstate in its declaratory judgment action has attached a copy of the reply to a request for admission filed in the federal action. There the plaintiffs admit that they have alleged an injury in the form of emotional distress and have made a claim for emotional damages. As indicated, Allstate has asked this court to declare that it does not have the duty to defend the federal suit against Dridi and has moved for summary judgment in the action.
"It 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 . . . [T]he oft-stated principle [is] that the duty to defend is broader than the duty to indemnify . . ." (Citations omitted; internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 352 (2001) (affirming the granting of a motion for summary judgment).
"Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . [In deciding the issue of coverage], [t]he [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . The determinative question is the intent of the parties, that is what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . ." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399 (2000).
National Union Fire Ins. v. R. Olson Const., 769 N.E.2d 977, 981 (Ill.App. 2002) explains: "Whether an insurer has a duty to defend depends on a comparison of the allegations of the underlying complaint to the relevant policy provisions . . . When a declaratory judgment action is brought to determine a insurer's duty to defend a court must look solely to the complaint in the underlying action to determine whether the allegations show that the claim falls within or potentially within the CT Page 10879-an coverage of the policy . . . If it is clear from the face of the complaint that the allegations failed to state facts that bring the case within, or potentially within, the policy's coverage, the insurer may properly refuse to defend the insured."
In this case, therefore, the court must compare the factual and legal allegations of the federal complaint to the policy provisions cited by the plaintiff to determine whether it has the duty to defend Dridi in the federal suit. This also means that the court may not in its analysis make use of the reply to the request to admission relied upon by the plaintiff. See Tri-Coastal v. Hartford U/W, 981 S.W.2d 861 (Tex. 1998), reversing the granting of summary judgment in an action by an insurer to determine the duty to defend. The trial court erroneously had made use of information outside of the underlying complaint and the policy in reaching its decision.
This "four corners" doctrine also means that the court, in deciding Allstate's motion, may not consider Dridi's point (at page 6 of her brief in opposition) that "[t]he status of the Federal action has not produced any adjudication of fact or law affecting the issues in the present case . . ."
First Allstate denies that its policy covers Dridi because the allegations in the federal complaint do not amount to an "occurrence." An "occurrence" is defined in the policy as "an accident . . . resulting in bodily injury or property damage." Thus the claim against Dridi would have to be the result of an "accident" for the policy to provide coverage. Our Supreme Court has stated that "the term `accident' is to be construed in its ordinary meaning of an `unexpected happening.'" Commercial Contractors Corp. v. American Insurance Co., 152 Conn. 31, 42 (1964). The "wrongful conduct" asserted by the federal plaintiffs against Dridi here hardly may be termed "unexpected."
The federal plaintiffs allege that Dridi gave false and malicious information to the victim advocate with the intent to cause emotional distress to the plaintiffs. Similarly in Rolette County v. Western Casualty Surety Company, 452 F. Sup. 125 (D.N.D. 1978) a county sought to recover legal expenses from an insurance company, claiming it had had a duty to defend the county in a § 1983 action. This action had alleged that a county sheriff had illegally seized a mobile home and automobile causing humiliation and emotional distress to the homeowners. The policy covered an "occurrence" which was defined as "an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured." The court concluded: "The acts referred to by [the homeowners] as being in deprivation of their constitutional rights were the application for the warrant of attachment and levy upon the warrant without prior notice and hearing. These acts were clearly intentional, not accidental. There is no indication in the complaint that the failure to give prior notice was the result of negligence or carelessness on the part of any of the defendants. Thus, CT Page 10879-ao the court finds the claim relied upon by the plaintiffs as the basis for a duty to defend . . . did not arise from an "occurrence" as required by the terms of the policy." Id. at 130.
In addition the policy indicates that Allstate will pay claims of bodily injury where "bodily injury" is defined as "physical harm to the body including sickness or disease . . ." Under similar policy language, our Supreme Court has held that an insurer does not have the duty to defend in a suit seeking damages for emotional distress arising out of a dispute over a financial transaction. Damages for emotional distress were not covered by the phrase "bodily injury" in the policy. Moore v. Continental Casualty Co., 252 Conn. 405, 411-12 (2000). See also Allstate Insurance Co. v. Lanata, Superior Court, judicial district of New Britain, Docket No. CV 01 511764 (September 25, 2002, Shortall, J.) ( 33 Conn.L.Rptr. 153) (underlying case alleges that defendant falsely provided information about plaintiff, causing emotional distress; this is not a bodily injury claim under policy); Grant v. North River Ins. Co., 453 F. Sup. 1361 (N.D.Ind. 1978) (no duty to defend against allegations in civil rights suit of false arrest and false imprisonment as opposed to physical bodily injuries).
Dridi argues that the federal plaintiffs have brought a civil rights case against her and that under federal pleading rules, they need not elaborate on their injuries in their complaint. Still, to satisfy the policy "an allegation of some sort of physical malady must be found within the four corners" of the complaint. United States v. Security Management Co., Inc., 96 F.3d 260, 267 (7th Cir. 1996). "The complaints, however, [as here], are totally silent on this subject. No adverse physical symptoms are alleged to have been caused by the discriminatory acts. We conclude, therefore that the complaints do not trigger a duty to defend under (the insurer's] bodily injury coverage." Id. See also Weaver v. Motorists Mutual Insurance Company, 599 N.E.2d 101, 102 (Ohio App. 1990) ("Since no claim for bodily injury was asserted against Weaver himself, no duty to defend attached under the contract").
Dridi's opposition brief at page 2. See also Weisman v. LeLandais, 532 F.2d 308 (2d Cir. 1976), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957): "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Since Allstate has demonstrated that the allegations of the complaint are not covered by its policy provisions, the court grants its motion for summary judgment. The declaratory judgment as sought finding that Allstate does not have the duty to defend Dridi in the pending federal lawsuit is issued by the court.
Since Allstate has prevailed by relying on the two policy provisions, the court need not consider Allstate's argument that the policy exclusion for intentional acts applies.
Henry S. Cohn, Judge