Opinion
No. CV04-4001464S
May 9, 2006
MEMORANDUM OF DECISION
In this action, the plaintiff, Allstate Insurance Co. (Allstate), seeks a declaration that it does not have a duty to indemnify or defend three of the defendants, Waldemar Korytkowski, Teresa Korytkowski and their minor son, Karol Korytkowski, (collectively referred to as the Korytkowskis), in a separate suit brought against them by the three other defendants, Cezary Tarasik, Elzbieta Tarasik and their minor son, Grzegorz Tarasik, (collectively referred to as the Tarasiks), for the damages that Grzegorz Tarasik sustained when he was allegedly assaulted by Karol Korytkowski. See Tarasik v. Korytkowski, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 04 0085249 (Tarasik action).
In the two-count complaint in the present action, Allstate alleges the following facts. The Korytkowskis purchased a homeowner's insurance policy from Allstate. Under the provisions of the policy, Allstate is obligated to indemnify, subject to policy limitations and exclusions, an insured for damages that the insured becomes legally obligated to pay for bodily injuries that arise out of an occurrence that is covered by the policy, and to defend an insured in lawsuits in which a third party seeks such damages. In 2004, the Tarasiks brought suit against the Korytkowskis seeking damages for the injuries that Grzegorz Tarasik sustained when Karol Korytkowski punched him in the face during a fight (Tarasik action). According to Allstate, the allegations of the Tarasik action are premised on the intentional conduct of Karol Korytkowski and are, therefore, outside the scope of coverage provided by the policy.
In count one, Allstate alleges that it does not have a duty to indemnify the Korytkowskis for any damages they may be required to pay in the Tarasik action because that action does not arise from an occurrence as that term is used in the policy and is premised on the intentional conduct of Karol Korytkowski. In count two, Allstate alleges that, for the same reasons, it also does not have a duty to defend the Korytkowskis in the Tarasik action.
On October 28, 2005, Allstate filed a motion for summary judgment as to both counts of its complaint, accompanied by a memorandum of law in support. Allstate also relies on the following exhibits to support its motion: A copy of the complaint in the Tarasik action; a photocopy of a notarized police report; and a photocopy of a certified copy of the insurance policy. On November 23, 2005, the Tarasiks filed a memorandum in opposition, accompanied by uncertified excerpts of the policy and a copy of the complaint in the Tarasik action. The Korytkowskis did not oppose the motion for summary judgment.
Allstate purported to file all of these exhibits with its memorandum. The exhibits could not, however, be located in the court's file. Allstate introduced a photocopy of the notarized police report, dated May 28, 2002, into evidence at oral argument on the motion for summary judgment. Per court order, Allstate submitted a copy of the complaint in the Tarasik action and a photocopy of the certified copy of the policy to the court following oral argument on the motion for summary judgment.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
The policy submitted by Allstate contains a photocopy of the certification page. Section 10-2 of the Connecticut Code of Evidence provides in relevant part that "[a] copy of a writing, recording or photograph is admissible to the same extent as an original unless . . . a genuine issue is raised as to the authenticity of the original or the accuracy of the copy . . ." The Tarasiks themselves rely on uncertified excerpts of the policy. Therefore, they can raise no issue as to the authenticity or accuracy of the copy and the entire policy is properly before the court.
Although neither party submitted a properly authenticated copy of the Tarasik complaint, "[t]here is no question that the trial court may take judicial notice of the [court's] file in another case, whether or not the other case is between the same parties." (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003). The court will do so for the purpose of considering the contents of the Tarasik complaint in the context of Allstate's motion for summary judgment.
"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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005).
"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 . . . Once the moving party has met its burden . . . 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.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
Allstate moves for summary judgment as to its action on the ground that no genuine issues of material fact exist and it is entitled to a judgment as a matter of law. Specifically, Allstate maintains that pursuant of the terms of its policy with the Korytkowskis, it does not have a duty to defend or indemnify them for the following reasons: (1) all the counts in the Tarasik action are premised on an incident that does not qualify as an "occurrence" as that term is used in the policy, and are therefore not covered by the policy; (2) counts one, two, four anti five of the Tarasik action are premised on wilful or intentional conduct and thus are excluded from coverage; (3) count three of the Tarasik action is premised on a nonphysical injury and thus is also excluded from coverage; (4) the fifth count of the Tarasik action is based on the fourth count and, because it does not have a duty to indemnify or defend under the fourth count, it does not have an equivalent duty under the fifth count.
The Tarasiks counter that genuine issues of material fact exist as to whether the incident in question was an occurrence as that term is used in the policy. They also maintain that in their action against the Korytkowskis, they have alleged that Grzegorz Tarasik's injuries arose out of the negligent acts of Karol Korytkowski, that issues of fact remain as to the question of Karol Korytkowski's intent and that issues of intent are not amenable for resolution on a motion for summary judgment. The Tarasiks contend that Allstate is required to defend the Korytkowskis if any of their allegations possibly qualify for coverage under the policy. The Tarasiks do not directly address the other grounds that Allstate raises in its motion.
Allstate's duty to defend the Korytkowskis will be examined first "[b]ecause 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 . . ." (Internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).
"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." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., 267 Conn. 592, 599 n. 7, 840 A.2d 1158 (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; emphasis in original; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins., 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).
Accordingly, it is necessary to examine the five-count complaint in the Tarasik action. In count one, the Tarasiks allege, without providing any factual details, that Karol Korytkowski committed a wilful, wanton and malicious assault and battery against Grzegorz Tarasik, causing him to sustain personal injuries, including a broken, fractured jaw. In count two, the Tarasiks allege, and again without providing any details, that Karol Korytkowski negligently and carelessly caused Grzegorz Tarasik to be struck in the jaw, resulting in the same personal injuries as alleged in count one. In the third count, they allege that Karol Korytkowski's conduct in negligently striking Grzegorz Tarasik in the jaw caused Grzegorz Tarasik to suffer emotional distress. In the fourth count, the Tarasiks allege that Grzegorz Tarasik's injuries were caused by the carelessness and negligence of Waldlemar and Teresa Korytkowski in that they failed to control or restrain their son from wilfully, wantonly and maliciously causing injuries to Grzegorz Tarasik. The Tarasiks allege that they are entitled to damages for this conduct pursuant to General Statutes § 52-572. In the fifth count, the Tarasiks allege that as a result of the wilful, wanton and malicious conduct of Karol Korytkowski, Cezary Tarasik has incurred and will incur medical expenses on behalf of Grzegorz Tarasik.
General Statutes § 52-572(a) provides in relevant part that "[t]he parent or parents . . . of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person . . . shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults."
All of Allstate's arguments are premised upon its contention that the causes of action that the Tarasiks assert against the Korytkowskis in the Tarasik action are not, for various reasons, within the terms of coverage of the Korytkowskis' policy with Allstate. "Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . 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 . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . This rule of construction favorable to the insured extends to exclusion clauses." (Citations omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004).
The first issue is whether the Tarasik action is premised on an "occurrence" as that term is used in the policy. The Family Liability Protection provision of the policy provides: "Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury . . . arising from an occurrence to which this policy applies, and is covered by this part of the policy . . . If an insured person is sued for these damages, we will provide a defense . . . even if the allegations are groundless, false or fraudulent . . ." In the definitions section of the policy, the term "occurrence" is defined as "an accident . . . resulting in bodily injury or property damage." The policy does not, however, 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 unforeseen 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; emphasis in original.) Allstate Ins. Co. v. Barron, supra, 269 Conn. 408 n. 10. The present policy does not contain any other provisions that would suggest that the term occurrence should be defined to include anything other than accidental conduct. In such circumstances, it is accepted that "the policy does not provide coverage for intentional conduct." Imperial Casualty Indemnity Co. v. State, 246 Conn. 313, 325, 714 A.2d 1230 (1998). As previously noted, in count one of the complaint in the Tarasik action, the Tarisiks summarily allege that Karol Korytkowski "assaulted and beat [Grzegorz Tarasik]" and that "[t]he assault and battery was willful, wanton and malicious." In count two, the Tarasiks summarily allege, without incorporating their allegations of intent from count one, that Karol Korytkowski "negligently and carelessly caused [Grzegorz Tarasik] to be struck in the jaw . . ." In count three, the Tarasiks allege that Karol Korytkowski's conduct in negligently striking Grzegorz Tarasik caused him to suffer emotional distress. In count five, the Tarasiks allege that as result of the "wilful, wanton and malicious conduct" of Karol Korytkowski, Cezary Tarasik incurred expenses to pay for medical treatment for his son, Grzegorz Tarasik. The scarcity of factual allegations in these counts is crucial in the present context because Allstate's duty to defend "is measured by the allegations of the complaint." The duty to defend "is determined by the facts in the underlying complaint, and not the titles assigned to the particular causes of action . . . [or] legal theories [advanced in the complaint]." (Citations omitted.) Covenant Ins. Co. v. Sloat, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0385786 (May 23, 2003, Levin, J.) (34 Conn. L. Rptr. 687, 692). As previously noted, the insurer's duty to defend depends on whether the Tarasiks have, in their complaint, "stated facts which bring the injury within the coverage [of the policy]." (Internal quotation marks omitted.) Hartford Casualty Indemnity Co. v. State, supra, 274 Conn. 464.
As our Supreme Court has stated, "intentional conduct and negligent conduct, although differing only by a matter of degree . . . are separate and mutually exclusive." American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 775, 607 A.2d 418 (1992). Nevertheless, the court also recognizes that "in a given case there may be doubt about whether one acted intentionally and negligently"; id., 776; and that "[a]n actionable assault and battery may be one committed willfully or voluntarily, and therefore intentionally . . . or one committed negligently." (Internal quotation marks omitted.) Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985). Indeed, in the present action, it is not even clear whether counts one and two are premised on the same conduct.
Allstate's reliance on the police report to supply the factual allegations that are not contained in the Tarasik complaint is misplaced in that "[i]t is the claim [in the pending lawsuit] which determines the insurer's duty to defend . . ." (Internal quotation marks omitted.) Hartford Casualty Indemnity Co. v. State, supra, 274 Conn. 464. Accordingly, the court will not consider the police report in deciding the present motion.
In counts one, two, three and five, the Tarasiks have not alleged any facts regarding the nature of the alleged incident between Karol Korytkowski and Grzegorz Tarasik and, therefore, have not stated facts that are sufficient to bring the incident within the term "occurrence" as it is used in the policy. Thus, these counts do not state facts that bring the matter within the coverage of the policy and do not trigger Allstate's duty to defend the Korytkowskis. As stated by one court, "simply because there are allegations of negligence does not necessarily mean there has been an accident." Times Fiber Communications, Inc. v. Travelers Indemnity Co. of Illinois, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 03 0196619 (February 2, 2005, Rogers, J.) (38 Conn. L. Rptr. 642, 648).
As to the Tarasiks' argument that the allegations of the underlying suit turn on questions of intent, which are not appropriate for resolution by summary judgment, as discussed CT Page 8801 supra, "[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." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins., supra., 274 Conn. 463. Thus, in deciding the present motion for summary judgment, the court is not determining what the intent of Karol Korytkowski was when he committed the alleged acts. Instead, the court is required to examine the policy and the complaint in the underlying suit to determine if the facts alleged give rise to a duty to defend.
Count four of the Tarasik complaint is considered separately for several reasons. In count four, the Tarasiks allege that Grzegorz Tarasik's injuries were caused by the negligence of Waldemar and Teresa Korytkowski due to their failure to use reasonable care to control and restrain their son's wilful, wanton and malicious conduct, and that the Korytkowski parents are therefore liable under General Statutes § 52-572, the parental vicarious liability statue.
See footnote 3.
First, depending on the vantage point from which these allegations are viewed, the allegations may be sufficient to qualify as an occurrence. Compare discussions of claims of vicarious liability against minor tortfeasor's parents in Covenant Ins. Co. v. Sloat, supra, 34 Conn. L. Rptr. 693 (in discussing plaintiff's claim of vicarious liability against parents of minor tortfeasor, court explained, "the issue of whether the [underlying] action alleges an accident or occurrence must be determined from the standpoint of the insured seeking coverage, who, for the purposes of this analysis, are [the minor tortfeasor's] parents. While the acts alleged in the [underlying] action were certainly intended and expected from [the minor tortfeasor's] standpoint, they were most literally unintended and unexpected from his parents' standpoint. Therefore, with respect to [the minor's] parents, the allegations in the [underlying] action allege an `occurrence' under the policy"), with Middlesex Mutual Assurance Co. v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0396760 (September 17, 2003, Dewey, J.) ("The defendant parents would not be in court except for their son's conduct. The claims against these parents arise from intentional [conduct] . . . The policy exclusions therefore apply"). The court is not required to resolve this issue, however, due to another provision in the policy at issue.
Specifically, although the parties did not bring it to the attention of the court, the Family Liability Protection section of the policy contains a clause that expressly states: "We do not cover bodily injury or property damage arising out of (a) the negligent supervision by an insured person of any person . . ." The question is whether this exclusionary clause applies to the vicarious liability claim the Tarasiks allege against the Korytkowski parents in count four.
The court reviews this exclusion in light of the general principles that "[i]t is the function of the court to construe the provisions of the contract of insurance"; (internal quotation marks omitted:) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins., supra, 274 Conn. 463; and when interpreting an insurance policy, the court "must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 462, 870 A.2d 1048 (2005).
The Supreme Court considered a similar question in LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 268 A.2d 663 (1970). In that case, the plaintiffs' minor son was involved in an accident while he was driving a third party's automobile. The third party brought an action that included a vicarious liability claim against the minor's parents under § 52-572. At the time, the parents had a homeowner's insurance policy with the defendant insurer, and they brought an action against the defendant after it refused to defend them in the third-party action. The trial court rendered judgment for the parents, and the Appellate Court affirmed on the ground that the vicarious liability claim against the parents was imposed by statute and that the policy did not expressly exclude statutory claims. Id., 255-56.
On the defendant's appeal to the Supreme Court, the issue was whether an exclusionary clause of the policy relieved the defendant of its duty to defend the parents against the vicarious liability claim. The clause provided that coverage shall not apply "`to the . . . operation [or] use . . . of (1) automobiles . . . while away from the premises . . .'" Id., 255. The parents argued that the exclusion did not apply because their liability was not premised on their personal activity with an automobile off the premises, but was "vicarious and created solely by statute." Id., 256. The court disagreed, explaining that "[t]he meaning of the exclusionary clause in the instant policy is clear and unambiguous . . . That clause provides, in effect, that any liability, under any theory of recovery, whether personal negligence, master-servant, agency, or other theory of vicarious liability, which arises from an automobile accident off the premises, is outside the scope of the contract." Id., 257. Accordingly, the court concluded that the third-party claim against the parents did not state a claim that came within the terms of the policy. Id., 259. Therefore, the court set aside the judgments of the trial and appellate courts and remanded the case to the trial court to render judgment for the defendant. Id.
The exclusionary clause in the present policy is also clear and unambiguous. In effect, it provides that any claim, including a claim for vicarious liability, that arises "out of . . . the negligent supervision by the insured of any other person" is outside the scope of the policy. The claim that the Tarasiks allege in count four does not therefore, state a claim that is covered by the Korytkowskis' policy. Therefore, Allstate does not have a duty to defend the Korytkowski parents against the claim asserted against them in count four of the Tarasik action.
For the foregoing reasons, Allstate's motion as to count two of its complaint, in which it alleges that it does not have a duty to defend the Korytkowskis in the Tarasik action, is granted.
As to count one of Allstate's complaint, in which it alleges that it does not have a duty to indemnify the Korytkowskis, as the Supreme Court recently explained, "[b]ecause 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 . . . Consequently, [the trial court's] determination that [the insurer] had no duty to defend [the insured] in the [underlying] action necessarily means that [the insurer], also had no duty to indemnify [the insured] in that action." (Internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., supra., 268 Conn. 688.
As the court has determined that Allstate does not have a duty to defend the Korytkowskis, it has also necessarily determined that it does not have a duty to indemnify them. Accordingly, Allstate's motion for summary judgment as to count one of its complaint is granted.