Summary
finding no duty to defend insured who were parents of minor committing assault being sued under a vicarious liability claim
Summary of this case from New London County Mut. Ins. Co. v. LyonOpinion
No. 385786
May 23, 2003
MEMORANDUM OF DECISION
The plaintiff, Covenant Insurance Company (Covenant), seeks a declaratory judgment that it is not required to defend or indemnify its insureds, Thomas, Geraldine and Sean Sloat (Sloats), in connection with a pending civil action brought against them by Alan, Susan and Douglas Meyers (defendants).
The following facts are not in dispute. Douglas Meyers (Douglas) and Sean Sloat (Sean) were minors and students attending Trumbull High School. In February 2001, the defendants brought a civil action against the Sloats and certain other Trumbull High School students and their parents (the Meyers action) for alleged incidents of abuse and harassment against Douglas by certain members of the Trumbull High School wrestling team.
The operative complaint in the Meyers action, the Meyers' revised amended complaint dated August 2, 2002, alleges the following facts. Douglas was a special education student at Trumbull High School who suffered from Attention Deficit Hyperactivity Disorder, social and emotional maladjustment, and bipolar disorders. Douglas was subject to harassment and teasing from fellow band members while a member of the school's band, and from fellow teammates while a member of the school's cross-country team. Sean and the other student defendants knew or should have been aware of Douglas' disabilities and history of being harassed.
In or around November 1999, Douglas joined the high school wrestling team. The team had a long-standing tradition of humiliating new members by "hog-tying" and hanging them from shower hooks by their underwear. The team also had a tradition known as "the slapping game" in which players would remove their shirts before matches and hit themselves and each other until their chests turned red, leaving welts and handprints on each other's torsos. The team also engaged in an activity called "garbage ball" in which one player could use any means to stop another player from putting a volleyball into a can placed on a mat.
In the Meyers action, the defendants' revised amended complaint is in eight counts. The first count alleges that Sean, along with the other student defendants, "negligently" committed the following acts: (1) they jumped and physically restrained Douglas and sodomized him by inserting a plastic knife forcibly into his rectum; (2) they "hog-tied" his hands, arms and legs with tape and while tied, beat him forcibly by slamming his head into the floor, hitting him with their hands, stabbing him several times with a broken ski pole and bouncing a basketball repeatedly against his head; (3) while "hog-tied," they placed him on a gym mat roller, rolled him around with great velocity and then propelled him with great force into a wall, causing his body to strike the wall with great force; (4) they restrained him in a prone position on a mat and forcibly pulled his underwear up into his crotch; (5) they restrained him and pulled his shirt over his head to demonstrate how a wrestling team member could effectively choke someone; (6) they locked him in his locker for extended periods of time during which they spat on him through the ventilation openings, sprayed deodorant in his eyes, cursed him and struck him; (7) after locking him in his locker, they forced him to reveal his locker combination in exchange for being released, then used the locker combination to take his personal belongings and extorted him to pay them to return his personal belongings; (8) they routinely struck him in the face and on various parts of his body; (9) they gave him "wedgies," forcibly and violently pulling his underwear upwards; (10) they routinely subjected him to verbal and emotional abuse and wrote disparaging and sexually explicit graffiti on his locker; and (11) they spread false rumors alleging that he had criticized individual team members, and then urged those individuals to retaliate against Douglas with physical violence.
As a result of these acts, Douglas suffered damages including physical, psychiatric and emotional injuries and incurred costs for medical and psychological treatment.
Paragraphs 40 to 45 of count one allege these injuries and damages as follows:
40. As a result of the acts and omissions of the defendant students as set forth above, Douglas has suffered severe and painful physical injuries, some of which maybe permanent in nature, including:
a. Contusion and abrasion to the right anterior knee with effusion of the prepateller bursa, pain, swelling, numbness, and a limitation of range, strength motion and ambulation;
b. Abrasion and swelling of the rectum;
c. Contusions and abrasions all about the body, including the upper torso, the right arm, the shoulders and the upper back.
41. As a further result of the acts and omissions of the defendant students as set forth above, Douglas has suffered and continues to suffer severe and painful mental and emotional injuries, some of which may be permanent in nature, including:
a. Bipolar disorder with depression, agitation, and suicidal ideation;
b. Aggravation/exacerbation of attention deficit/hyperactivity disorder;
c. Post-traumatic stress syndrome.
42. As a further result of the acts and omissions of the defendant students as set forth above, Douglas has been forced to withdraw from Trumbull High School because of the stigma and intolerable environment caused by the events described above.
43. As a further result of the acts and omissions of the defendant students as set forth above, Douglas has been traumatized, causing him to suffer severe damage to his ego, his self-esteem, and his ability to relate, communicate and socialize with others. Such damage may be permanent in nature.
44. As a further result of the acts and omissions of the defendant students as set forth above, Douglas has incurred and will continue to incur into his adulthood, costs and expenses associated with medical and psychological treatment.
45. As a further result of the acts and omissions of the defendant students as set forth above, Douglas's ability to enjoy social and recreational activities, to foster and maintain personal, social, business and/or romantic relationships and to benefit and grow from these relationships has been diminished and damaged and may be permanent in nature.
The second count alleges that in committing these acts, Sean and the other students acted recklessly, since they were conscious of the serious danger these acts posed to Douglas's physical and mental well-being. The third count alleges negligent infliction of emotional distress. The fourth count alleges assault and battery, in that Sean and the other students acted intentionally and with the desire to bring about apprehension and harmful and offensive physical contact to Douglas because of his disabilities. The fifth count alleges that the acts of "hog-tying" Douglas and locking him in his locker constitutes false imprisonment. The sixth count incorporates the same allegations as the previous counts and alleges further that the actions of Sean and the other students constitute intentional infliction of emotional distress. The seventh count re-alleges the same allegations as the prior counts and alleges that the defendant students conspired for the purpose of harassing, intimidating, injuring and causing distress to Douglas, which they knew or should have known would result in injury to him, and that they undertook their acts with malice and intent to injure him. The eighth count incorporates the operative facts of the prior counts and alleges that Sean's parents, Thomas and Geraldine Sloat, are liable to the plaintiffs pursuant to General Statutes § 52-572.
General Statutes § 52-572 (a) provides:
The parent or parents or guardian, other than a temporary guardian appointed pursuant to section 45a-622, of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, 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.
At the time of the acts alleged in the defendant's complaint, the Sloats were insured under a homeowners' insurance policy issued by Covenant. Coverage E of the liability coverage provisions of the policy provides: "If a claim is made or a suit is brought against an `insured' for damages because of `bodily injury' or `property damage' caused by an `occurrence' to which this coverage applies we will: 1. Pay up to our limit of liability for the damages for which the `insured' is legally liable . . ." The policy provides that "`[o]ccurrence' means an accident including continuous or repeated exposure to the same general harmful conditions, which results, during the policy period, in . . . bodily injury . . ." Under the policy, "[b]odily injury means bodily harm, sickness or disease including required care, loss of services and death that results." The "Exclusions" provision of the policy, however, provides that Coverage E does "not apply to `Bodily Injury' or `Property Damage' . . . a. which is expected or intended by the insured . . . [or] k. arising out of sexual molestation, corporal punishment or physical or mental abuse."
The Sloats made a demand on Covenant to provide them with a defense to the Meyers action and indemnification against any damages that might be awarded. Covenant has agreed to provide the Sloats with a defense under a reservation of rights but denies that it is obligated to provide a defense or to indemnify the Sloats.
On June 18, 2001, Covenant brought this action against the Sloats and the Meyers seeking a declaratory judgment that it is not required to provide the Sloats with a defense or indemnification. Covenant argues that the allegations against the Sloats in the Meyers action are not covered by the policy because they do not charge an "occurrence" as defined by the policy, and that even if an allegation in the Meyers action did constitute an occurrence, coverage is defeated by the policy's exclusions for bodily injury which is (1) expected or intended by the insured or (2) arises out of sexual molestation, corporal punishment or physical or mental abuse. The defendants filed a memorandum of law objecting to Covenant's motion. In their memorandum, the defendants counter that Covenant admitted its duty to defend, and even if it did not, declaratory relief is premature and inappropriate because the evidence alleged supports a claim of negligence, which is covered by the policy, rather than intentional, conduct or sexual molestation, which is not.
Practice Book § 17-54 provides that the Superior Court will "render declaratory judgments as to the . . . nonexistence (1) of any right, power, privilege or immunity . . . whether such right, power, privilege or immunity now exists or will arise in the future." Practice Book § 17-55 provides the conditions for seeking declaratory judgment; and trial courts are afforded wide discretion in rendering declaratory judgment. Leoni v. Water Pollution Control Authority, 21 Conn. App. 77, 83, 571 A.2d 153 (1990).
Practice Book § 17-55 provides:
A declaratory judgment action may be maintained if all of the following conditions have been met:
(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.
The defendants contend that, based on Hartford Accident Indemnity Co. v. Williamson, 153 Conn. 345, 350, 216 A.2d 635 (1966), a declaratory judgment cannot be proper under these circumstances. In Williamson, the Supreme Court held that General Statutes § 38-175, now codified as § 38a-321, allows a party to seek a determination as to whether an insurer has a duty to indemnify a person claiming to be an insured for a judgment rendered in a pending civil action. The court held that what is now Section 38a-321 "furnishes a plain and simple method for the determination of the liability of the plaintiff to respond to a judgment obtained [in the pending action]."
Section 38a-321 provides, in pertinent part, that
[u]pon the recovery of a final judgment against any person, firm or corporation by any person . . . if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.
"Although in Hartford Accident Indemnity Co. v. Williamson, supra, 153 Conn. 345, the court was critical of the use of a declaratory judgment action to test coverage under an insurance policy, later cases have decided insurance coverage through a declaratory judgment action without similar criticism. See Holy Trinity Church v. Aetna Casualty Surety Co., [ 214 Conn. 216, 571 A.2d 107 (1990)]; Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 697 A.2d 680 (1997); Safeco Ins. Co. v. Vetre, 174 Conn. 329, 387 A.2d 539 (1978); Pecker v. Aetna Casualty Surety Co., 171 Conn. 443, 370 A.2d 1006 (1976); St. Paul Fire Marine Ins. Co. v. Shernow, [ 22 Conn. App. 351, 380, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990)]. Moreover, in Williamson, the court addressed only `the duty to indemnify and not the duty to defend. `The obligation of the [insurance company] to defend Williamson does not depend on whether [the claimant] will be successful in obtaining a judgment against him. It depends on whether [the claimant], in his complaint against Williamson, has stated facts which bring his injury within the coverage of the policy . . .' (Citations omitted.) Hartford Accident Indemnity Co. v. Williamson, supra, 153 Conn. 349. In Williamson, where the insurance company's duty to defend was not at issue, the court found that, `[n]o facts [were] alleged in the complaint to demonstrate a reason for the determination of [insurance coverage] in a declaratory judgment action rather than under § [ 38a-321].' Id., 350.
"Section 38a-321 addresses indemnification issues only and not the duty to defend. `If [the plaintiff in the underlying action] does recover a judgment, then General Statutes § [ 38a-321] provides the means for the determination whether that judgment is against a person who was insured by the plaintiff against the liability involved.' Hartford Accident Indemnity Co. v. Williamson, supra, 153 Conn. 350. `Because General Statutes § 38a-321 is not triggered until after the underlying action has gone to judgment, it does not provide as speedy, appropriate or complete a remedy as to the issue of duty to defend or indemnify as this declaratory judgment action.' American States Ins. v. Amodio, Superior Court, judicial district of New Haven at Meriden, Docket No. 253737 (October 9, 1996, DiPentima, J.) ( 17 Conn.L.Rptr. 675). The holding in Williamson . . . applies only when the sole issue before the court is the duty to indemnify and not when, as in the present case, the duty to defend and the duty to indemnify are simultaneously at issue. This court, unlike the Williamson court, must decide the two issues together in this declaratory judgment action." Hanover Ins. Co. v. Halfmann, Superior Court, judicial district of New Haven, No. CV 98 0412888 (Oct. 27, 1999) (Zoarski, J.) ( 25 Conn.L.Rptr. 597); see also State Farm Fire Casualty Co. v. Bullock, Superior Court, judicial district of New Haven, No. 387111 (May 30, 1997) ( 19 Conn.L.Rptr. 599) (observing "that Williamson is in some tension with subsequent Supreme Court precedent").
Since Covenant seeks a declaratory judgment both as to the duty to defend and the duty to indemnify, Williamson is inapposite and declaratory judgment procedure is the proper vehicle to determine the rights of the parties.
II
The defendants claim that Covenant conceded its duty to defend the Sloats at the trial of this action before this court on January 15, 2003. Their argument is based on the following exchange between the court and Covenant's attorney.
THE COURT: Well, you're defending on the reservation —
MS. FITZSIMMONS: Reservation of rights, exactly. And that's been admitted to in the answer by the Sloat defendants and — CT Page 7111
THE COURT: But you contend that you — that you don't have a duty to defend?
MS. FITZSIMMONS: I'm contending that we do not have a duty to indemnify —
THE COURT: Right.
MS. FITZSIMMONS: — because based on the evidence and the facts in this matter —
THE COURT: You're conceding that you do have a duty to defend?
MS. FITZSIMMONS: No, I'm conceding that upon the four corners of the complaint, it was questionable. So the Covenant Insurance Company defended because that's what you're suppose to do under the case law. So we are defending. However, we do not have a duty to indemnify. That's our position.
(Emphasis added.)
The defendants argue that the statements by Covenant's counsel ("upon the four corners of the complaint" the duty to defend is "questionable") conceded Covenant's duty to defend and that it should be held to that statement as a judicial admission. Admissions, however, whether judicial or evidentiary, are concessions of fact, not concessions of law. In other words, judicial admissions merely do away with the need for evidence on a particular issue. Kopacz v. Day Kimball Hospital of Windham County, Inc., 64 Conn. App. 263, 272, 779 A.2d 862 (2001); see Tait's Handbook of Connecticut evidence (3d Ed) § 8.16.3; Black's Law Dictionary 49 (7th Ed. 2001). "The question of whether an insurer has a duty to defend its insured, [on the other hand,] is purely a question of law . . ." Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184, 819 A.2d 765 (2003); see also Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). Accordingly, counsel's statements are not treated as an admission.
Rather, the issue is whether Covenant abandoned the claim, clearly pleaded in its complaint, that it has no duty to defend the Sloats. Abandonment is essentially a voluntary and intentional surrender of a known right. Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). "`Abandonment' is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances." Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987).
Typically, where a case is tried to the court, without a jury, a claim of law is deemed abandoned where it is not briefed; Collins v. Goldberg, 28 Conn. App. 733, 738, 611 A.2d 938 (1992); or argued. See Practice Book § 5-2, which provides:
Any party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question.
The court finds that there has been no abandonment. First, in response to the court's inquiry as to whether "[y]ou're conceding that you do have a duty to defend," Covenant clearly answered "No." Second, following counsel's remarks, Covenant submitted a memorandum of law in which it reasserted and adequately analyzed its claim that it did not have a duty to defend the Sloats. "When briefs are submitted in a trial to the court, the trial is not completed and argument is not closed until such briefs are timely filed." State v. Mobley, 42 Conn. Sup. 574, 587, 634 A.2d 305 (1993), aff'd. per curiam and adopted, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994). Thus, functionally, in the same proceeding in which counsel made her ambiguous remarks, she filed a brief clearly asserting her position that Covenant did not have a duty to defend.
Finally, the court observes that, neither in the evidentiary hearing nor in their subsequently submitted brief, were the defendants lulled into overlooking the duty to defend claim, nor were they otherwise prejudiced by counsel's unartful advocacy. See DeMilo v. West Haven, 189 Conn. 671, 681 n. 8, 458 A.2d 362 (1983). Under the circumstances, the court finds that Covenant has not conceded the duty to defend, nor has it abandoned its claim that it does not have a duty to defend the Sloats.
III
The court turns to the merits of Covenant's claim that it does not have a duty to defend the Sloats in the Meyers action. For reasons discussed infra, the court analyzes the coverage of Sean separately from that of his parents.
A.
"[T]he principles governing our determination of this issue are well settled. [A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint . . . 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 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." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 40-41, 801 A.2d 752 (2002). "Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citations omitted; internal quotation marks omitted.)" Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 387 (2000).
In ascertaining whether there is a duty to defend the court is limited to allegations of the complaint. "The question of whether an insurer has a duty to defend its insured . . . is to be determined by comparing the allegations of the . . . complaint [in the underlying action] with the terms of the insurance policy." Id., 395. "Under Connecticut case law, `it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact "covered" . . .' Missionaries of the Company of Mary, Inc. v. Aetna Casualty Surety Co., 155 Conn. 104, 112, 230 A.2d 21 (1967), quoting Lee v. Aetna Casualty Surety Co., 178 F.2d 750 (2d Cir. 1949)." Exel Logistics, Inc. v. Maryland Casualty Co., 40 Conn. App. 415, 419, 671 A.2d 408 (1996).
Here, the policy of insurance defines coverage in terms of an "occurrence," which the policy further defines as an accident. "In ascertaining the meaning of the terms of the insured's policy, we . . . are guided by well established principles. The [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 . . . It is axiomatic that 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 . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy." (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399-400. It is equally well settled that "construction of a contract of insurance presents a question of law . . ." for the court. Travelers Insurance Co. v. Namerow, 257 Conn. 812, 827, 778 A.2d 168 (2001).
"The term `accident' is to be construed in its ordinary meaning of an `unexpected happening.'" Commercial Contractors Corporation v. American Ins. Co., 152 Conn. 31, 42, 202 A.2d 498 (1964) (construing the word in the context of a "Manufacturers' and Contractors' Liability Policy"); accord, Tiedmann v. Nationwide Mutual Fire Ins. Co., 164 Conn. 439, 445, 324 A.2d 263 (1973) (also construing "accident" as an unexpected happening in the context of a Manufacturers' and Contractors' Liability Policy); see Webster's Third New International Dictionary 11 (1971) (defining "accident" as "an unforeseen unplanned event or condition."). "An accident is an unintended occurrence." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, 573 A.2d 699 (1990) (in the context of a disability policy), quoting Whetsell v. Mutual Life Ins. Co. of New York, 669 F.2d 955, 957 (4th Cir. 1982). Trial courts have applied the definitions of "accident" in Hammer and Commercial Contractors to the interpretation of the word in policies of homeowners' insurance such as that here. See, e.g., Grechika v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 00 0159540 (July 5, 2001, Doherty, J.); Blue Ridge Insurance Co. v. Honegan, Superior Court, judicial district of Middlesex, Docket No. CV 98 0085273 (August 10, 2000); Middlesex Mutual Assurance Co. v. Hitchcock, Superior Court, judicial district of New Haven, No. CV 99 0431600 (March 8, 2000). Where, as here, there is no conflicting language, it is clear 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).
Whether there is an accident, and hence an occurrence, must be determined from the standpoint of the insured seeking coverage. This result is militated by the policy's severability of insurance provision which provides: "This insurance applies separately to each `insured.'" "Where a policy contains a severability of interests clause, it is a recognition by the insurer that it has a separate and distinct obligation to each insured under the policy . . . `[T]he term "the insured" as used in [the] policy must be examined by first applying the "severability of interests" test. "The insured" does not refer to all insureds; rather, the term is used to refer to each insured as a separate and distinct individual apart from any and every other person who may be entitled to coverage thereunder . . .' Commercial Standard Ins. Co. v. American Gen. Ins. Co., 455 S.W.2d 714, 721 (Tex. 1970)." (Citations omitted.) Sacharko v. Center Equities Limited Partnership, 2 Conn. App. 439, 444, 479 A.2d 1219 (1984). Accordingly, the court analyzes the question of Sean's coverage and his parent's coverage separately.
For two reasons, the result would be the same here even if the policy did not have a severability of interests clause. First, the insuring provision of the policy, containing the definition of "occurrence," is ambiguous with respect to whose perspective is to be used to determine if an occurrence was an accident. Policy provisions that are ambiguous are construed in favor of the insured. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399-400; cf. Mills v. Colonial Penn Ins. Co., 47 Conn. Sup. 17, 768 A.2d 1 (2000). Second, this policy contains an exclusion, "a", for bodily injury or property damage "[which] is expected or intended by the ` insured.'" (Emphasis added.) While an exclusion cannot ordinarily create coverage; see, e.g., Elysian Investment v. Stewart Title Guaranty, 105 Cal.App.4th 315, 324, 129 Cal.Rptr.2d 372 (2003); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 740 (Fl. 2002); School Alliance v. Thomas Construction, 353 N.J. Super. 131, 144, 801 A.2d 459 (2001); the history of exclusion "a" indicates that "there is a relationship between the policy's definition of `occurrence' and the exclusion for intentional acts. King v. Dallas Fire Ins., 85 S.W.2d 185, 192 (Tex. 2002). Prior to 1986, the language in the exclusion was included in the definition of occurrence in the standard form Comprehensive General Liability Policy. In 1986, the language was shifted into an exclusion. Id. Nonetheless, as the Texas court in King explained, the language of the exclusion continues to inform the issue of whose perspective is used in determining whether there has been an "occurrence," within the insuring provision.
B. SEAN SLOAT'S COVERAGE 1.
The defendants argue that since Sean was at all times a minor during the alleged occurrences, his "intent cannot be inferred as a matter of law or otherwise." This argument is not supported by the law and misconstrues the real issue.
The law generally provides that infants are "liable for their malicious, intentional, or wilful torts." 43 C.J.S., Infants § 190; see Fear v. Smith, 184 Ill. App.3d 51, 56, 539 N.E.2d 1297, cert. denied, 136 Ill. Dec. 585, 545 N.E.2d 109 (1989); Horton v. Reaves, 186 Colo. 149, 155, 526 P.2d 304 (1974). "Ordinarily, tort liability attaches regardless of age where the nature of the act is such that children of a like age would realize its injurious consequences . . . However, where a tort requires a particular state of mind, and an infant because of his age or mental capacity, is incapable of forming such state of mind, he cannot be found guilty of the tort. Accordingly, although an infant of quite tender years may be held liable where the only intention necessary to the commission of a tort is the intention to perform the physical act in question . . . such an infant cannot be held liable where malice is the gist of the tort and he is too young to formulate the necessary malicious intention . . ." (Citations omitted; internal quotation marks omitted.) Walker v. Kelly, 6 Conn. Cir. Ct. 715, 719-20, 314 A.2d 785 (App.Div. 1973).
At the time of the alleged conduct, Sean was between the ages of fourteen and fifteen years old, certainly old enough to realize and appreciate the consequences of his alleged conduct. He was old enough to form a specific intent to commit acts that do not fall within the ambit of the policy's coverage for an occurrence.
Moreover, the defendants' argument that Sean was a minor misconstrues the issue. The issue is not whether Sean actually harbored an intent to harm Douglas or even "whether the injured party will successfully maintain a cause of action against the insured," but whether the Meyers have in their "complaint, stated facts which bring the injury within the coverage"; Board of Education v. St. Paul Fire Marine Ins. Co., CT Page 7116 supra, 261 Conn. 40-41; that is, whether the complaint alleges an unintended occurrence or unexpected happening from Sean's standpoint. The court concludes that it clearly does not.
2.
The gravamen of the defendants' argument is that the revised amended complaint in the Meyers action sets forth claims that fall within the coverage provisions of the Sloat's policy. "[T]he interpretation of pleadings is always a question of law for the court . . . Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988), and cases cited therein." Travelers Ins. Co. v. Namerow, supra, 261 Conn. 795. Construing the allegations of the complaint in the Meyers action in this manner, the court concludes that it does not allege an accident, that is, an unintended occurrence or unexpected happening, nor did the pleader intend to do so. Rather, the complaint alleges a pattern or campaign of acts intended and designed to inflict physical and emotional consequences on Douglas that were at least extremely unpleasant and at worst cruel or hideous. The course of conduct alleged cannot fairly be characterized as childish pranks with no intent to injure. No accident may be fairly "gleaned" from the allegations of the Meyers complaint. Flint v. Universal Machine Co., 238 Conn. 637, 648, 679 A.2d 929 (1996).
Paragraph 37 of counts one, two and three, and paragraph 33 of counts four, six and seven allege as follows:
a. While Douglas was in the locker room getting changed, defendants Christopher, Benjamin, John, Daniel F., Daniel S., Sean and Paul individually and in concert with all defendant students, jumped Douglas, physically restrained him, and sodomized him by inserting a plastic knife forcibly into his rectum;
b. Defendants Benjamin, Jeremy, Daniel F., Christopher, Derek, Daniel S., Sean, Paul individually and in concert with all defendant students, "hog-tied" Douglas's hands, arms and legs with tape, and while tied, beat him forcibly by slamming his head into the floor, hitting him with their hands, stabbing him several times with a broken ski pole, and bouncing a basketball repeatedly against his head;
c. Defendants Jeremy, Daniel F., Christopher, individually and in concert with all defendant students, placed Douglas, while "hog-tied," on a gym mat roller, and rolled him around in circles with great velocity, and then propelled him with great force into a wall, causing his body to strike the wall with great force;
d. Defendants Jeremy, Daniel S. and Sean individually and in concert with all defendant students, restrained Douglas in a prone position on a mat while one or more members braced themselves against Douglas's body and forcibly pulled his underwear up into his crotch;
e. Defendants Jeremy and Benjamin, individually and in concert with all defendant students, restrained Douglas and while restrained, pulled his shirt over his head to demonstrate how a wrestling team member could effectively choke someone;
f. Defendants Michael, Jeremy, Daniel F., John, Christopher, Daniel S., Sean, and Paul individually and in concert with all defendant students, locked Douglas in his locker, restrained him there for extended periods of time, during which time they spat on him through the ventilation openings, sprayed deodorant in his eyes, cursed at him, and struck him;
g. After locking Douglas in his locker, defendants John, Christopher and Sean, individually and in concert with all defendant students, forced Douglas to reveal his locker combination in exchange for being freed from the locker. Thereafter, said defendants used the combination to take Douglas's cash, food and personal belongings. Said defendants then extorted Douglas by requiring him to pay them cash if he wanted any of the items returned;
h. Defendants individually and in concert, routinely struck Douglas in the face and on various parts of his body;
i. Defendants individually and in concert, gave Douglas "wedgies" — forcibly and violently pulling the back or front of his underwear upwards;
j. Defendants Christopher, Jeremy, Michael, individually and in concert with all defendant students, routinely subjected Douglas to verbal and emotional abuse, and wrote disparaging and sexually explicit graffiti on and around Douglas's locker;
k. Defendants John, Daniel F., Michael, Sean and Paul, individually and in concert with all defendant students, spread false rumors alleging that Douglas had criticized individual team members, and then urged those individuals to retaliate against Douglas with physical violence.
Covenant argues that the court may consider testimony of Sean Sloat offered without objection at trial and his answers to requests for admissions in the Meyers action in determining "coverage." It is uncertain whether Covenant claims that such material may be considered in determining whether Covenant has a duty to defend the Sloats or has a duty to indemnify. Because the court's analysis of Covenant's duty to Sean begins and ends with its duty to defend, it need not address Covenant's alleged duty to indemnify.
Moreover, although the first count of the Meyers complaint is entitled "negligence," this title is not determinative of Covenant's duty to defend. "Whether an insurer is obligated to defend an insured is determined by the facts in the underlying complaint, and not the titles assigned to the particular causes of action. State Farm Fire Casualty Co. v. Bullock, [ supra 19 Conn.L.Rptr. 599, 602)]. For `[i]f the title of the cause of action were controlling, the duty to defend would be manifest.' Id.; Flint v. Universal Machine Co., [ 238 Conn. 637, 646, 679 A.2d 929 (1996)] (the obligation of the insurer to defend depends on whether the plaintiff `has, in his complaint alleges facts which bring the injury within coverage')." Nationwide Mutual v. Mazur, Superior Court, judicial district of New Britain, Docket No. CV 98 0489231 (June 3, 1999).
Other jurisdictions have similarly held that "[t]he inquiry into an insurer's duty to defend focuses on the facts alleged, not legal theories." State Farm General Ins. Co. v. White, 955 S.W.2d 474, 475-76 (Tex.App. 1997); accord, First Southern Ins. Co. v. Jim Lynch Ent., Inc., 932 F.2d 717, 720 (8th Cir. 1991); Matlack v. Mountain West Farm Bureau Mut., 44 P.3d 73, 78 (Wyo. 2002); LD of Oregon v. American States Ins. Co., 171 Or. App. 17, 20, 14 P.3d 617 (2000); Bagley v. Monticello Ins. Co., 430 Mass. 454, 458, 720 N.E.2d 813 (1999); Ohio Cas. Ins. Co. v. Horner, 583 N.W.2d 804, 807 (N.D. 1998); Bayudan v. Tradewind Ins. Co., Ltd., 87 Haw. 379, 388, 957 P.2d 1061 (1998); Indiana Ins Co. v. North Vermillion, 665 N.E.2d 630, 635 (Ind.App. 1996); City of Bonaventura v. Allianz Ins. Co., 9 Cal.App.4th 402, 406, 11 Cal.Rptr.2d 742 (1992); Village of Newark v. Pepco Contractors Inc., 99 App.Div.2d 661, 662, 472 N.Y.S.2d 66, aff'd., 62 N.Y.2d 772, 477 N.Y.S.2d 325 (1984); USF G v. Wilkin Insulation Co., 144 Ill.2d 64, 73, 578 N.E.2d 926 (1991); Travelers Ins. Companies v. P.C. Quote, Inc., 211 Ill. App.3d 719, 729, 570 N.E.2d 614 (1991); Illinois Employers Ins. v. Dragovich, 139 Mich. App. 502, 362 N.W.2d 767, 769 (1984); Sola Basic Industries, Inc. v. U.S. Fidelity Guaranty Co., 90 Wis.2d 641, 646-47, 280 N.W.2d 211 (1979); see QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 354, 773 A.2d 906 (2001).
With respect to the third and sixth counts, which allege negligent and intentional infliction of emotional distress, respectively, the Supreme Court has held that emotional distress does not constitute bodily injury as defined in policies such as Covenant's. Moore v. Continental Casualty Co., 252 Conn. 405, 413, 746 A.2d 1252 (2000). Nor, of course, does it constitute property damage as defined in the policy.
The policy defines property damage to mean "physical injury to, destruction of, or loss of use of tangible property."
Moreover, even if an occurrence were alleged in counts three and six, neither count would survive the policy's exclusion of bodily injury which is expected or intended by the insured, or arises out of sexual molestation, corporal punishment or physical or mental abuse. "An insured's conduct can be considered unintentional . . . only if the insured can produce evidence to show that she did not intend to cause the damage. See Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 205-06, 663 A.2d 1001 (1995). If the insured cannot show that her behavior was unintentional, the presumption of intent remains intact, and the exclusion of the homeowners policy precludes coverage. Id." United Services Automobile Association v. Marburg, 46 Conn. App. 99, 104-05, 698 A.2d 914 (1997). Here, the issue is one of pleading, not evidence. The revised complaint in the Meyers action clearly alleges conduct that can only be considered as designed to cause harm.
Covenant argues that the Meyers action arises out of "hazing" as defined in General Statutes § 53-23a. It is unnecessary to determine this question since the duty to defend depends on whether the claimant "has, in his complaint, stated facts which bring the injury within the coverage . . . It necessarily follows that the insurer's duty to define is measured by the allegations of the complaint . . ." Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 41, 801 A.2d 752 (2002).
For these reasons, the court holds that the allegations against Sean in the Meyers action do not come within the coverage provided in Covenant's homeowners' policy. Accordingly, Covenant does not have a duty to defend Sean. Nor does it have a duty to indemnify him from any judgment rendered in the Meyers action. "[W]here there is no duty to defend, there is no duty to indemnify, given the fact that the duty to defend is broader than the duty to indemnify." QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 382.
C. THOMAS AND GERALDINE SLOAT'S COVERAGE
That Covenant does not have a duty to defend Sean, however, is not determinative of whether it has a duty to defend his parents.
The eighth count of the Meyers action, the only count directed against Thomas and Geraldine Sloat, is expressly based on General Statutes § 52-572, which imposes vicarious liability for damages up to five thousand dollars on a parent or guardian of a minor who wilfully or maliciously causes injury to person or property.
The eighth count incorporates the operative allegations of the prior counts, recounted supra, and alleges:
59. At all times mentioned herein, the minor defendant students were residing with and/or under the care and control of the defendant parents when the willful, malicious and wanton acts described herein occurred and when the injuries to Douglas as described herein were sustained.
60. The plaintiffs' claims against the defendant parents/guardians are brought pursuant to the provisions of Connecticut General Statutes § 52-572.
As observed supra, the policy provides coverage for damages because of bodily injury caused by an "occurrence," which the policy defines as an accident, which, in turn, Connecticut courts define as an unintended occurrence or unexpected happening. As discussed in part III A, the issue of whether the Meyers action alleges an accident or occurrence must be determined from the standpoint of the insured seeking coverage, who, for purposes of this analysis, are Sean's parents. While the acts alleged in the Meyers action were certainly intended and expected from Sean's standpoint, they were most literally unintended and unexpected from his parents' standpoint. Therefore, with respect to Sean's parents, the allegations in the Meyers action allege an "occurrence" under the policy.
The court next considers Covenant's arguments that coverage for Sean's parents is eliminated by the policy's exclusions.
There are two relevant exclusions in the Sloat's policy, exclusion "a," discussed supra, and exclusion "k." Exclusion "a" excludes coverage for bodily injury or property damage "[w]hich is expect or intended by the `insured.'"
As was just stated supra, the complaint in the Meyers action does not allege that Sean's parents committed any acts whatsoever nor that they expected or intended that any harm come to Douglas. Rather, count eight is based on General Statutes § 52-572, which makes parents vicariously liable for their child's wilful or malicious acts, regardless of their own conduct or negligence. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). Accordingly, coverage is not defeated by exclusion "a.
The second exclusion, exclusion "k," provides that coverage does not apply to bodily injury "[w]hich arises out of sexual molestation, corporal punishment or physical or mental abuse . . ." Exclusion "k," unlike exclusion "a" employs the much broader phrase "arising out of," to define the scope of coverage excluded.
"`[I]t is generally understood that for liability for an accident or an injury to be said to "arise out of" [an occurrence or offense], 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" [that occurrence or offense], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence or offense].' Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975), and cases cited therein. To `arise' out of means `to originate from a specified source.' Webster's Third New International Dictionary (1961); see also Black's Law Dictionary (7th Ed. 1999) (defining `arise' as `1. [t]o originate; to stem [from] . . . 2. [t]o result [from]'). `The phrase arising out of is usually interpreted as indicat[ing] a causal connection.' (Internal quotation marks omitted.) Coregis Ins. Co. v. American Health Foundation, United States Court of Appeals, Docket No. 99-9300 (2d Cir. February 14, 2001); see also McGinniss v. Employers Reinsurance Corp., 648 F. Sup. 1263, 1267 (S.D.N.Y 1986)." QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001).
Unlike exclusion "a," which focuses on the intent of the insured, exclusion "k" precludes coverage for an entire class of risks arising out of specified conduct, and does not turn on the intent of the insured. Essex Ins. Co. v. Yi, 795 F. Sup. 319, 324 n. 2 (N.D.Cal. 1992); see 16 Holmes' Appleman on Insurance (2d Ed. 2001) § 116.1, p. 80.
Liability against Sean's parents is based on General Statutes § 52-572 which provides in pertinent part: "The 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, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, 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."
In one sense, it is clear that the parents' liability arises out of activity within the policy's exclusion. Certainly, they would not be in court but for the their son's alleged commission of excluded acts. In another sense, however, it may be argued that their liability does not arise out of those acts but solely "arises out of" their status as parents. To determine whether the claim against the Sloats is for bodily injury which arises out of sexual molestation, corporal punishment or physical or mental abuse it is necessary to examine the nature of the liability imposed by § 52-572.
In Labonte v. Federal Mutual Ins. Co., supra, 159 Conn. 253, a child stole a vehicle belonging to another person and damaged it. The child and his parents were sued by the owner. Liability against the parents was based on General Statutes § 52-572. At the time of the incident, the parents were insured by the defendant under a homeowner's insurance policy. The insurer denied coverage and refused to defend the parents. The parents brought a third party action against the insurer. The insurance policy contained an exclusion that stated that coverage did not apply "to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles . . . while away from the premises or the ways immediately adjoining."
Discussing the nature of the liability imposed by § 52-572, the court held that the parents were not "liable for any personal activity involving an automobile off the premises but that their liability is vicarious and created solely by statute . . . The statute in question thus creates liability where none existed at common law, and the liability is absolute, in the sense that no negligence need be shown to exist on the part of the parents. If the child is liable, as is admitted in the present case, the parents are jointly and severally liable with him." (Citations omitted.) Id., 256. Moreover, the court held that for purposes of the insurance policy exclusion, it was irrelevant that the parents' vicarious liability arose under a statute rather than under a relationship of agency or master-servant. "We see no reason why a different rule should apply in cases of vicarious liability created by statute. Vicarious liability is based on a relationship under which it has been determined as a matter of public or social policy that one person should be liable for the act of another, irrespective of the participation of the person vicariously liable . . . In this sense the policy behind vicarious statutory liability is identical to the policy which holds a master vicariously liable, without personal participation, for the torts of his servants." (Citation omitted.) Id., 258. The Labonte court further held: "In the case before us it is not a personal act of the insured which is excluded but rather, as claimed by the insurer, the subject matter of the accident without regard to the involvement of the insured [parents]." (Emphasis added.) Id., 259.
While there is little case law addressing whether exclusion "k" eliminates coverage for liability that is only vicarious, other insurance policy exclusions employing the phrase "arising out of" have been held to exclude coverage based on vicarious liability for prohibited acts enumerated in the exclusion. See, e.g., McDaniels v. Great Atlantic Pacific Tea Co., 602 F.2d 78, 82 (5th Cir. 1979); Midwestern Ins. Alliance, Inc. v. Coffman, 7 S.W.3d 393, 396 (Ky.App. 1999); MacTown, Inc. v. Continental Ins. Co., 716 So.2d 289, 292 (Fla.App. 1998).
Thus, under LaBonte, in determining whether the complaint alleges a claim for bodily injury arising out of excluded activity, the court must inquire not merely into the status of the parents as parents but into the underlying conduct of their son "the subject matter of the [incident] without regard to the involvement of the insured" parents. Labonte v. Federal Mutual Ins. Co., supra, 159 Conn. 259. The subject matter of the complaint in the Meyers action alleges bodily injury "which arises out of sexual molestation, corporal punishment or physical or mental abuse . . ." The complaint alleges injuries that are connected with, originate in, grow out of, flow from, or are incident to the physical and mental abuse of Douglas. QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 374.
Additionally, many of the allegations in the plaintiffs' complaint are connected with, originate in, grow out of, flow from, or are incident to corporal punishment and sexual molestation. Id. In other words, the allegations in the Meyers action "arise out of" the physical and mental abuse of Douglas, and therefore, are removed from coverage under exclusion "k." Cf. Christ v. Aetna Casualty Surety Co., 214 Conn. 216, 223 n. 5, 571 A.2d 107 (1990) (exclusion for "bodily injury or property damage arising out of demolition operations performed by or on behalf of the insured," held, unambiguous). Since exclusion "k" excludes coverage for such abuse, it excludes coverage for the parents' vicarious statutory responsibility therefor.
It is true that other jurisdictions discussing the issue of parental liability have held that homeowner's insurance policies may cover vicarious liability of parents for damages caused by the intentional acts of their minor children. See Property Casualty Co. of MCA v. Conway, 147 N.J. 328-29, 687 A.2d 729 (1997), and cases cited therein; Aceto v. Hanover Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 95 0371556 (January 9, 1996, Hadden, J.) ( 15 Conn.L.Rptr. 620, 623). In these cases, however, the courts were not interpreting a policy provision, such as provision "k," which excludes coverage for bodily injury that "arises out of sexual molestation, corporal punishment or physical or mental abuse . . ."
The court holds that Covenant does not have a duty to defend Thomas or Geraldine Sloat because the complaint in the Meyers action alleges bodily injury within exclusion "k." "[W]here there is no duty to defend, there is no duty to indemnify . . ." QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 382. Accordingly, Covenant has no obligation to defend or indemnify the Sloats for any damages they may suffer in the Meyers action.
Judgment may enter declaring that Covenant does not have a duty to defend or indemnify Sean Sloat or his parents, Thomas and Geraldine Sloat, for damages in connection with the Meyers action.
BY THE COURT
Bruce L. Levin Judge of the Superior Court