Opinion
CV146025014S
12-22-2015
City of Waterbury v. Hospitality Franchise Associates, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Andrew W. Roraback, J.
I
BACKGROUND
The principal question this motion presents is whether the defendants, Peerless Indemnity Insurance Company (" Peerless"), Hospitality Franchise Associates, LLC (" Hospitality"), and Liberty Mutual Insurance Company (" Liberty Mutual") breached a duty to defend the plaintiff, the City of Waterbury (" the city"), in a 2012 action brought by Gloria O'Loughlin (" O'Loughlin"). That lawsuit, O'Loughlin v. Hospitality Franchise Associates, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-12-6016873-S, was brought as a result of injuries O'Loughlin sustained while in transit from a restroom she had used as a patron of a restaurant known as " The Hills Restaurant." That restaurant was owned and operated by Hospitality which leased the facility from the city. The restaurant was located at a public golf course owned by the city, and the defendants urge the court to consider evidence that the restroom which O'Loughlin had used was not part of the premises which Hospitality leased and that they therefore had no duty to defend the O'Loughlin lawsuit.
The defendants Peerless Indemnity Insurance Company, Liberty Mutual Insurance Company, and Hospitality Franchise Associates, LLC will collectively be referred to as the defendants.
The city was named as " an additional insured" on a general liability insurance policy Peerless provided to Hospitality. This coverage was a requirement of the lease Hospitality had with the city for the restaurant premises.
On September 12, 2014, the city filed a three-count complaint against the defendants. In count one of the complaint, the plaintiff alleges a breach of the duties to defend and indemnify against Hospitality. Count two asserts similar allegations against Peerless and/or Liberty Mutual. At an August 31, 2015 hearing, the parties agreed that whether there was a duty to defend is a question of law. Therefore, the parties filed oral cross motions for summary judgment on that issue. On September 11, 2015, the defendants also submitted a memorandum of law in support of their motion for partial summary judgment. They attached a copy of the Peerless insurance policy in question to that memorandum.
II
Discussion
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
Our Supreme Court has stated that " an insurer's duty to defend . . . is determined by reference to the allegations contained in the [underlying] complaint . . . Moreover, 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 whether he has, in his complaint, stated facts which bring the injury within the coverage . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend . . . Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage . . ." (Citations omitted; emphasis omitted; internal quotation marks.) Misiti v. Travelers Property Casualty Co. of America, 308 Conn. 146, 155-56, 61 A.3d 485 (2013).
" [T]he duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend." Id., 161. " [T]he duty to defend is broadly construed." Id. In this case, the policy in question covered the City of Waterbury " with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to [Hospitality]."
Misiti includes a thoughtful and thorough discussion of the factors to be considered in interpreting the term " arising out of" as commonly found in policies of insurance. One such factor is whether the injuries suffered are incident to or connected with the use of the insured premises as further defined in Hogle v. Hogle, 167 Conn. 572, 356 A.2d 172 (1972). Misiti v. Travelers Property Casualty Co. of America, supra, 308 Conn. 159-60. Hogle stands for the proposition that " for liability for an accident or injury to be said to 'arise out of' the 'use' of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury 'was connected with, ' 'had its origins in, ' 'grew out of, ' 'flowed from' or 'was incident to' the use of the automobile in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile." Hogle v. Hogle, supra, 167 Conn. at 577.
In the first count of the O'Loughlin case directed against Hospitality, the plaintiff alleged that she was on premises " owned, operated, managed, maintained, controlled and/or possessed" by Hospitality and that while " walking from the ladies restroom stalls to the dressing room at [the restaurant] she was caused to trip and fall." In the fourth count against Waterbury, the plaintiff alleges that Waterbury " was obligated by law to maintain, repair, and keep reasonably safe for public travel, the premises, particularly (sic) ladies restroom of [the restaurant]."
While the defendants argue that the premises leased by Hospitality did not include the ladies restroom in question, a full copy of the lease has not been and should not be put before the court unless it supports the duty to defend. Even taking that representation as true, however, it cannot reasonably be concluded that use of the restroom by restaurant customers would not be connected with, incident to, grow out of, or have its origins in consuming food and drink at the restaurant. The case of Sacharko v. Center Equities Limited Partnership, 2 Conn.App. 439, 445, 479 A.2d 1219 (1984), is instructive in this regard.
In Sacharko, a landlord, who was an additional insured, brought suit against the tenant-restaurant's insurer for failing to defend the landlord in a suit brought by a restaurant employee who slipped and fell on ice and snow on the exterior of the premises. In that case, the tenant-restaurant leased the building but was also given the right to use land directly in the rear of the restaurant building where the fall occurred. Under these facts, the Appellate Court upheld the trial court's ruling that the location where the plaintiff fell was included within the premises leased and that the insurer had a duty to defend.
Furthermore, the defendants' argument that the Supreme Court's holding in Misiti dictates a finding that it had no duty to defend the city in the O'Loughlin case is unavailing. The facts of Misiti are distinguishable from the facts of O'Loughlin in several material respects. Most notably, in Misiti the primary insured was not named as a defendant in the lawsuit against the additional insured. This fact called into question whether a causal connection could be fairly inferred to support a finding that the plaintiff's injuries arose out of her use of the premises leased by the primary insured. While it is unclear whether, and to what degree, the court in Misiti relied on facts outside the pleadings, those facts suggest that the alleged injury took place under circumstances which were spatially and contextually unrelated to any use the plaintiff may have made of the named insured's tavern.
After a complete review of the relevant arguments, pleadings, and submissions on this question, the court concludes that the allegations in the O'Loughlin complaint " appeared to bring [her] claimed injury within the policy coverage." Missionaries of the Co. of Mary, Inc. v. The Aetna Casualty and Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967). A duty for the defendants to defend the plaintiff was, therefore, triggered, and they neglected to fulfill the duty.
III
Conclusion
Having found that the defendants breached their duty to defend the plaintiff in the O'Loughlin lawsuit, and in keeping with the parties' agreement as placed on the record on August 31, 2015, the court will grant partial summary judgment on the question of whether there was a duty to defend in favor of the plaintiff on counts one and two of the complaint. Partial judgment is therefore entered in favor of the plaintiff and against the defendants on those counts in the amount of $5, 086.90, which represents legal fees incurred by the plaintiff in defending the O'Loughlin claim and in bringing this action to enforce the duty to defend. As agreed by the parties, the question of whether there was a duty to indemnify will be the subject of further proceedings.
After reconsideration of its earlier ruling on the defendants motion to set aside default (#106), the court now vacates its original ruling (#106.20), denying the motion in part, and enters an order granting that motion in full.