Opinion
No. CV 05-4012970-S
March 21, 2007
MEMORANDUM OF DECISION ON THIRD-PARTY DEFENDANT MARKEL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT
This is an action brought by the plaintiffs against Patrick Lenarz (hereinafter also "Lenarz") who was an employee of East-West Karate CT, LLC (hereinafter also "East-West") and Roberta Lenarz by revised complaint dated August 14, 2006. The plaintiffs' revised complaint sounds in nine counts. The first count is Assault and Battery as to Patrick Lenarz, the second count is Reckless Assault and Battery as to Patrick Lenarz, the third count is Intentional Infliction of Emotional Distress as to Patrick Lenarz, the fourth count is Negligence as to Patrick Lenarz, the fifth count is Negligent Infliction of Emotional Distress as to Patrick Lenarz, the sixth count is Negligent Supervision as to East-West, the seventh count is Derivative Liability as to East-West, the eighth count is Negligent Infliction of Emotional Distress as to East-West and the ninth count is Fraudulent Transfer as to Patrick Lenarz and Roberta Lenarz.
The revised complaint alleges that Jennifer Doe, a minor and very young (four years old in 1999 when she began taking classes at East-West with Patrick Lenarz) was enrolled in Karate classes at East-West. The defendant, Patrick Lenarz, was employed as an instructor in karate at East-West, and the plaintiffs claim that Lenarz sexually abused Jennifer Doe in a number of ways, including making her sit on his lap, placing his hands down her pants, touching her genital area and having other sexual contacts with the plaintiff, Jennifer Doe. All of the claims in the revised complaint arose out of the alleged sexual assault by Patrick Lenarz against Jennifer Doe between 1999 and 2003.
By Third-Party Complaint, East-West as Third-Party plaintiff brought suit dated September 14, 2006 against Markel Insurance Company (hereinafter also "Markel") as Third-Party defendant. The Third-Party plaintiff, East-West, claims in count one that Markel has liability insurance covering East-West, et al and in the first count claims indemnification of a judgment if rendered against East-West. The second count alleges breach of contract claiming that Markel's refusing to defend East-West is a breach of the insurance contract between East-West and Markel and requests that the Third-Party defendant, Markel, provide a defense to East-West in the action brought by the aforementioned plaintiffs. Markel had issued a one-year commercial lines package policy to East-West on September 11, 1998 and coverage was renewed continually through September 11, 2003 with no change in the operative terms of the policy in any of the renewals.
Markel has moved for summary judgment against East-West claiming that exclusions in the policy apply, and, therefore, there is no coverage in this case for any liability on the part of East-West. The Third-Party plaintiff and the Third-Party defendant filed memoranda of law and oral argument was heard before this Court on March 19, 2007.
STANDARD OF REVIEW:
"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472, A.2d 257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marked omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
The burden of disproving coverage and disproving a duty to defend is on the insurer, in this case Markel. O'Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29 (1955).
An aspect of an insurer's duty to defend is what is known as the "Four Corners Rule" which states, in pertinent part as follows:
CT Page 8407
An insurer's duty to defend, being much broader in scope and application in 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 insured'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. (Emphasis added.)
Board of Education v. St Paul Fire Marine Ins. Co., 261 Conn. 37, 40-41 (2002).
ISSUES AND FINDINGS: 1. Is there a dispute of material fact on the question of whether or not Markel is required to defend and indemnify East-West?
The short answer is "no."
Of course, the plaintiffs will have to prove their allegations, but as stated in Board of Education, supra, at pages 40-41 the duty to defend is measured by the allegations of the complaint.
2. Does the abuse or molestation exclusion in the subject commercial general liability policy relieve Markel of indemnification and/or the duty to defend?The short answer is yes
This exclusion states, inter-alia as follows: "This insurance does not apply to `bodily injury,' `property damage,' `advertising injury' or `personal injury' arising out of:
1. The actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured, or
2. The negligent:
a. Employment;
b. Investigation;
c. Supervision;
d. Reporting to the proper authorities, or failure to so report; or
e. Retention;
of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraph 1. above."
It is well settled law in Connecticut that the words "abuse" and "molestation" are not ambiguous. These words were cited in Community Action for Greater Middlesex County, Inc. v. American Alliance, Ins. Co. 254 Conn. 387, 401 (2000) "The fact that a word may have several definitions does not necessarily render it ambiguous. The policy exclusion exempts the defendant from liability for `the actual or threatened abuse or molestation by anyone of any person. . .' Whatever other conduct that broad language may include within its purview, it certainly includes unwanted contact of a sexual nature. `[W]e will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. . .' (internal quotation marks omitted). Based upon the allegations of sexual abuse and molestation by Patrick Lenarz in the revised complaint, paragraph number 1 of the aforementioned exclusion applies in the case at bar. The words "in the care, custody or control of any insured" is also not ambiguous. This Court has recently concluded that care, custody or control is ambiguous when it related to young women between eighteen and twenty-one. However, in the case of Community Action, supra, the words "care custody or control" were not deemed ambiguous. As a matter of fact, there was not even a question as to their ambiguity because that case involved three young boys who allegedly grabbed and fondled a younger girl while in a program conducted by the plaintiff in the case at bar, the sexual abuse and molestation commenced when Jennifer Doe was only four years old while taking karate classes at East-West: The factual situation is similar to that in Community Action, supra. Jennifer Doe was in the care, custody and control of East-West because she was taking classes there at such a tender age and was under the care, custody or control of East-West because it supervised the classes which Jennifer Doe attended. She was in the care, custody or control of East-West through its employee, Patrick Lenarz who was teaching Jennifer Doe. She was also in the care, custody or control of Lenarz.
This exclusion clearly applies to Patrick Lenarz and East-West. Moreover, the sixth count is excluded from coverage because it alleges negligent supervision as to East-West which is specifically mentioned in paragraph 2 of the exclusion. The same exclusion applies to the seventh count labeled Derivative Liability as to East-West, and the eighth count which alleges Negligent Infliction of Emotional Distress as to East-West.
Claims of East-West.
The claim by East-West is that Patrick Lenarz was not acting within the scope of his authority, and, therefore, was not an employee at the time of the incidents alleged. East-West also claims that whether or not Patrick Lenarz was within the scope of his employment is an issue of fact, and, therefore, summary judgment should be denied. East-West cites Brown v. Housing Authority, 23 Conn.App. 624, 628 (1990). "In most cases, it is the function of the jurors to determine from the facts before them whether. . . a servant was acting within the scope of his employment. (Citations omitted.) In some situations, however, the acts of the servant are `so clearly without the scope of his authority that the question is one of law'" Id., 628. In Brown v. Housing Authority, the employee, Sam Jones a maintenance mechanic employed by the Housing Authority exited his vehicle, grabbed a hammer, chased the plaintiff around the car and struck him on the chest with the hammer. As the court stated on page 628: "It is clear in the present case that Jones was not furthering the defendant's business interest when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The same is true in the case at bar. Patrick Lenarz was clearly not furthering East-West's business interest when he sexually molested and abused Jennifer Doe. His acts were in no way connected to the business of East-West. However, that does not prevent East-West from being subject to the exclusion because of the broadness and all encompassing language of the exclusion. Paragraph 1 states: "the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured." (Emphasis added.) The word "anyone" is sufficiently broad to include Patrick Lenarz. Even if, as the Third-Party plaintiff claims, Lenarz, by acting outside the scope of his employment, and, therefore, was not an insured, he and East-West still fall under the exclusion because of the broad language that refers to "anyone."
Additionally, as previously stated, the insurer's duty to defend is measured by the allegations of Jennifer Doe's complaint which not only doesn't state that Lenarz was acting outside the scope of his employment, but in the seventh count (against East-West), actually alleges that Lenarz was acting in the course of his employment.
The first count alleges in Paragraph 6, that Lenarz taught karate classes at defendant East-West. The sentence is carried over to all of the counts and, therefore, indicates that Lenarz was an employee acting within the scope of his employment. Count six accuses East-West, of failing to properly supervise Lenarz which also indicates that he was an employee of East-West, and in no place does it allege to the contrary or state that he was acting outside the scope of his employment.
CONCLUSION
Based upon the above findings, this Court concludes that there is no genuine issue of material fact, and that the Third-Party defendant, Markel, is entitled to judgment as a matter of law.
Accordingly, its motion for summary judgment dated January 3, 2007 is granted.