Opinion
No. CV08-5006397S
April 15, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #134
Facts
The issue before the court is an interesting question of first impression in Connecticut. The facts are as follows. By service of the writ of summons and complaint, the plaintiff, New London County Mutual Insurance Company, commenced this action against the defendants, Maria Nantes, Armenui Dzhgalian, Aida Melikyan and Government Employees Insurance Company (GEICO) on June 2, 2008. Pursuant to Practice Book § 17-54 and General Statutes § 52-29, the plaintiff seeks a declaratory judgment that under Nantes' homeowner's insurance policy, there is no coverage afforded to Nantes for the personal injury claims asserted by the defendants due to the exclusion pertaining to claims that arise from the "use of a motor vehicle."
Herein, "the defendants" refers to Dzhgalian and Melikyan.
The complaint appears to contain a typographical error as it refers to Practice Book § 17-154, which does not exist; § 17-54 applies to declaratory judgment actions.
In a single-count complaint, the plaintiff alleges the following. In February 2007, Nantes was a Connecticut resident who owned and resided at 21 Sixth Street, Ansonia, Connecticut.
Nantes was the named insured on a homeowner's insurance policy issued by the plaintiff for that property. Nantes also had an automobile liability insurance policy through GEICO. In February 2007, the defendants, who were visiting physicians, boarded with Nantes at the insured location during a four-week residency at Griffin Hospital in Derby, Connecticut.
The complaint alleges that "[a]t the end of the work day on February 12, 2007, Ms. Nantes provided transportation [for] [the defendants] in her automobile, driving them from Griffin Hospital to the Nantes residence . . . Upon arriving at the Nantes residence, Ms. Nantes drove her car into her garage, which was located underneath the living quarters of the raised ranch residence . . . When Ms. Nantes and her passengers exited the vehicle to go upstairs to the living quarters for the night, the vehicle's engine was not shut off and continued to run . . . Early in the morning on February 13, 2007, one of the visiting physicians said she felt ill and collapsed on the upstairs level of Ms. Nantes' home. Ms. Nantes thereupon called `911' [for emergency assistance] and was advised to remove herself and the other occupants from the house . . ." The three women were treated at a hospital for carbon monoxide poisoning and released. On February 23, 2007, the plaintiff "disclaimed coverage for the claims asserted by [the defendants] on the basis of the motor vehicle exclusion" in the homeowner's insurance policy.
On December 15, 2009, Nantes and the defendants filed an answer and special defenses and a two-count counterclaim against the plaintiff. In their answer, they essentially admit the foregoing factual allegations except to the extent that the plaintiff characterizes the living arrangement as "boarding." On December 7, 2009, the plaintiff filed a motion for summary judgment on the ground that it is entitled to judgment as a matter of law in that it owes no duty to defend or indemnify Nantes. It filed a memorandum of law and a number of exhibits.
On January 19, 2010, Nantes and the defendants filed a memorandum in opposition on the ground that the plaintiff has failed to meet its burden of proof that, as a matter of law, the motor vehicle exclusion applies. The opposition is accompanied by a number of exhibits. On January 21, 2010, the plaintiff filed a reply memorandum. The court heard oral argument on January 25, 2010.
Both parties have submitted documentation with their respective memoranda. The plaintiff submitted exhibits labeled A through F. Exhibits B, E and F are Nantes' and the defendants' responses to requests for admissions regarding the settlement agreement in which each averred that the document attached thereto was a true and accurate copy of the settlement agreement; see the following footnote. The plaintiff also submitted the affidavit of Kathleen Munroe in which she averred that the submitted documents (eight exhibits) were true and accurate copies of the correspondence between attorneys regarding this matter, the affidavit of Cheryl Pasquarelli in which she averred that the submitted document (one exhibit) was a true and accurate copy of the relevant homeowner's policy, the affidavit of Kathleen Fadziewicz in which she averred that the submitted documents (six exhibits) were true and accurate copies of certain correspondence and a. transcript of a recorded statement given by Nantes.
Nantes and the defendants submitted affidavits of Dzhgalian, Melikyan and Delores Yarnell, their attorney, as well as an unauthenticated copy of a notice of findings from the Ansonia Fire Department regarding carbon monoxide levels in the home. No objections were raised to this unauthenticated evidence. A court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). The court will exercise its discretion and consider this evidence.
Discussion
"The purpose of a declaratory judgment action is to secure an adjudication of rights, where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties. It is axiomatic that no insurer is bound to provide indemnification or a defense beyond the scope of the coverage described in the insurance contract, the policy. St. Paul Fire Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380-81, [577 A.2d 1093] (1990), [aff'd], (222) Conn. 823 [610 A.2d 1281] (1992)." (Internal quotation marks omitted.) Allstate Ins. Co. v. Limone, Superior Court, judicial district of New Britain, Docket No. CV 08 4016936 (December 3, 2009, Trombley, J.).
General Statutes § 52-29 provides in relevant part: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." "Practice Book § 17-54 et seq. sets forth, inter alia, the scope, conditions, and procedure for declaratory judgment actions." Colony Ins. Co. v. Oracle Lounge, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 4029107 (May 1, 2008, Bellis, J.) ( 45 Conn. L. Rptr. 481, 482). The plaintiff alleges that this case presents a substantial question in dispute regarding its duty to defend and/or indemnify Nantes.
The defendants also asserted claims against Nantes' automobile insurer, GEICO, which were apparently settled. A copy of the settlement agreement, entitled: "Settlement Agreement, Partial Assignment of Rights, Covenant Not To Execute, and [a] Release," was submitted with the complaint and with the motion for summary judgment. With reference to the agreement, the plaintiff alleged the following in its complaint. "In February 2008, [the defendants] settled their claims against [Nantes] . . . Pursuant to this Settlement Agreement, GEICO agree[d] to pay each of the claimants . . . the [relevant] policy limit . . . In exchange [they] agree[d] that they [would] not seek further monies from [Nantes] . . . Nantes . . . assigned to [the defendants] `her contract rights under [the plaintiff's policy] . . . for the amount of any judgment that [might] be entered in favor of [them] against [Nantes]' and `her right to recovery for [the plaintiff's] bad faith failure to settle within policy limits . . .'" In their answer, Nantes and the defendants allege that the document referenced by the plaintiff, being a writing, speaks for itself. They admitted in their answer that "the settlement agreement contained an agreement to pursue the claims through binding arbitration." According to the allegations in their counterclaim: "In March 2008 . . . by virtue of their mutual agreement to submit the matter to binding arbitration [in California where] . . . a retired justice of the California Supreme Court . . . presided over the matter . . . On July 1, 2008, [the defendants] filed a formal petition in the Los Angeles Superior Court . . . [as part of the arbitration process and in] August 2008 arbitration was held [and the defendants were awarded damages] . . . The California Superior Court entered an amended judgment against [Nantes] on February 19, 2009."
The foregoing is only relevant to the summary judgment motion presently before the court insofar as an insurer's duty to defend or indemnify is usually determined by reference to the allegations contained in the underlying complaint. See DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004). The record before this court does not contain such a complaint, nor does it contain a copy of the alleged California 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17 (2009).
Our Supreme Court has noted: "As we repeatedly have stated, the duty to defend is considerably broader than the duty to indemnify . . . [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 . . . Moreover, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case . . .
"Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy. Because 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 . . ." (Citations omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004).
The plaintiff argues that it has no duty to defend or indemnify Nantes under the motor vehicle exclusion in the homeowner's policy. In section II ("Exclusions"), the policy states in relevant part: "Coverage E — Personal Liability and Coverage F — Medical Payments to Others does not apply to `bodily injury' . . . (f) [a]rising out of: (1) [t]he ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented to or loaned to an `insured.'" According to the plaintiff, the foregoing exclusion applies to bar coverage for the injuries sustained by the defendants because their claimed injuries arise out of the use of Nantes' motor vehicle. It maintains that Connecticut courts interpret the term `use of an automobile' broadly in the context of motor vehicle exclusions and thus this exclusion bars their recovery.
"Coverage E — Personal Liability.
If a claim is made or suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the "insured" is legally liable. Damages include prejudgment interest awarded against "insured" and
2. Provide a defense at our expense by counsel of our own choice, even if the suit is groundless, false, or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the "occurrence" equals our limit of liability."
"Coverage F — Medical Payments to Others.
We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing `bodily injury.' Medical expenses means reasonable charges for medical, surgical, x-ray, dental, ambulance, hospital, professional nursing, prosthetic devices and funeral services. This coverage does not apply to you or regular residents of your household except `residence employees' with the permission of an `insured.' As to others, this coverage applies only:
1. To a person on the `insured location' with the permission of an `insured.'
Nantes and the defendants argue in response that the policy is ambiguous because the term use is undefined, and in such cases, the understanding of the ordinary purchaser controls. Such understanding would require coverage under these facts. They argue further that the cases relied on by the plaintiff do not support its motion because "each case, save one, concerns the act of driving." Specifically, they assert that "the carbon monoxide injuries were caused by a combination of factors including (1) Nantes' failure to turn off the engine . . . (2) Nantes' closing the garage door, thereby containing the carbon monoxide fumes within the home, and (3) Nantes' failure to have carbon monoxide detectors placed in her home, which would have prevented the injuries from occurring." They maintain that insuring provisions and exclusions are interpreted differently, and that exclusions are construed narrowly against the insurer with an eye towards coverage. Finally, they maintain that the defendants sustained dragging injuries separate and apart from the carbon monoxide injuries and those injuries "are completely unrelated to the use of an automobile and, thus, [the plaintiff's] motion fails."
The parties made additional arguments. The defendants argue that this court should not consider the fact that Nantes settled her claim with her automobile carrier, GEICO, as evidence that the homeowner's policy exclusion applies. For the purpose of the motion before the court, the court has considered the settlement agreement only insofar as it is relevant to the procedural posture of this case.
The plaintiff maintains that certain statements made by Yarnell in her correspondence should be treated as admissions. Yarnell responds to this argument in her affidavit and the defendants address it in their memorandum. The plaintiff reiterates the argument in its reply memorandum. The court will not consider whether the statements made by Yarnell in her correspondence with the insurer were admissions that the carbon monoxide injuries arose out of the use of the automobile as it is unnecessary for the court to make such a determination in order to decide the issues before it.
To address the respective arguments of the parties, the court must determine whether the policy is ambiguous (part I). If the court concludes that it is unambiguous, the court will next examine Connecticut precedent to determine the "ordinary and natural meaning" of the terms used in the motor vehicle exclusion (part II A). The court will also examine how other jurisdictions have addressed identical, or nearly so, policy exclusions in similar factual situations (part II B) and whether the plaintiff has a duty to defend or indemnify Nantes (part II C). Finally, in part III, the court will address the argument that "the carbon monoxide injuries were caused by a combination of factors" and whether the argued dragging injuries "are completely unrelated to the use of an automobile."
I Ambiguity
"[C]onstruction of a contract of insurance presents a question of law for the [trial] court . . . [T]he 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 . . . In evaluating the expectations of the parties, we are mindful of the principle that provisions in insurance contracts must be construed as laymen would understand [them] and not according to the interpretation of sophisticated underwriters and that the policyholder's expectations should be protected as long as they are objectively reasonable from the layman's point of view . . .
"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 responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . [T]his rule of construction favorable to the insured extends to exclusion clauses." (Citations omitted; internal quotation mark omitted.) Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 591-92, 966 A.2d 672 (2009). "Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004).
When the insurance policy fails to define a term as used therein, a court may look to Connecticut case law and dictionary definitions to ascertain the ordinary and natural meaning of the term. See Budris v. Allstate Ins. Co., 44 Conn.App. 53, 57, 686 A.2d 533 (1996) ("[w]e look to Connecticut case law and dictionary definitions to ascertain the ordinary meaning of the term `owner'"). No Connecticut court has held that the term `use' in the phrase `use of a motor vehicle' is ambiguous, and a number of cases rely upon the plain meaning of the term `use.' See, e.g., Aetna Life Casualty Co. v Bulaong, 218 Conn. 51, 62, 588 A.2d 138 (1991) (whether passenger on motorcycle was using it for purposes of insuring clause); Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975) (whether injuries arose out of use of vehicle for purposes of motor vehicle exclusion); Mills v. Colonial Penn Ins. Co., 47 Conn.Sup. 17, 25, 29, 768 A.2d 1 (2000) [ 28 Conn. L. Rptr. 471] (whether injuries sustained in drive-by shooting arose out of use of shooter's vehicle under uninsured motorist provision of automobile policy).
The policy language at issue is not ambiguous nor is it subject to two reasonable interpretations. Accordingly, the issue is whether the "ordinary and natural meaning" of the terms of the policy exclusion which serve to exclude "`bodily injury' . . . [a]rising out of . . . [the] use . . . of motor vehicles . . . owned or operated or rented or loaned to an `insured'" exclude injuries sustained when a vehicle was negligently left idling overnight while parked in a garage.
II A Connecticut precedent
While no Connecticut court has answered the precise question presented in this case, there is relevant Connecticut precedent. "The determination of whether an act constitutes `use' of a motor vehicle [is] . . . very fact specific. When determining the meaning of the term `use' in an automobile insurance policy, a court must examine the factual circumstances of each case, including the particular characteristics of the vehicle. 6B J. Appleman J. Appleman, Insurance Law and Practice (Cum.Sup. 2001) § 4316, p. 88." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 43-44, 801 A.2d 752 (2002). "The term `use' is the general catch-all of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition. It is limited to the purpose for which the coverage is designed, namely, that the vehicle . . . [m]ust be pleasure or business, or commercial as defined in the policy." (Internal quotation marks omitted.) Hogle v. Hogle, supra, 167 Conn. 578 n. 1, quoting 7 Appleman, Insurance Law and Practice § 4316.
"Webster's Third New International Dictionary discloses that one of the principal meanings of the verb `to use' is `to put into action or service: have recourse to or enjoyment of: employ.' This meaning is consistent with `using' a vehicle as a passenger." Aetna Life Casualty Co. v. Bulaong, supra, 218 Conn. 62. "[Our Supreme Court has] held that `the use' of an automobile by an individual involves its employment for some purpose or object of the user while its `operation' by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another . . .
"The commentators generally agree. `Use' is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user. G. Couch, Insurance (2d Ed.) § 45:321. One may `use' an automobile without personally operating it, as the term use is broader than operation." (Citations omitted; internal quotation marks omitted.) Id., 62-63 (holding that passenger on motorcycle was user of motorcycle).
"In Hogle [ v. Hogle, supra, 167 Conn. 577], the court held that alleged injuries to a driver's wife caused when his collie dog jumped from the back seat to the driver's seat striking the driver and causing him to lose control of the car and collide with a tree were not covered by the homeowner's insurance policy which had an exclusion for [liability for injuries arising out of] the ownership, maintenance, or use of automobiles while away from the premises . . ." General Star Indemnity Co. v. Millington, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0183908 (May 31, 2006, Jennings, J.) ( 41 Conn. L. Rptr. 570, 572). "[The court's] reasoning was very broad: `[I]t is generally understood that for liability for an accident or an 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 . . . [The homeowner's insurer's] obligation to pay the judgment rendered in favor of Mrs. Hogle does not depend on whether it was Mr. Hogle's negligent operation of the car, or the activities of his dog inside the car, which constituted the `proximate cause' of the accident, and, consequently, of Mrs. Hogle's injuries, as Mr. Hogle contends. Such obligation, rather, depends in this case on another fact namely, whether Mr. Hogle's `use' of his car was connected with the accident or the creation of a condition that caused the accident . . . [ Hogle v. Hogle, supra, 167 Conn.] 577-78." (Internal quotation marks omitted). Mills v. Colonial Penn Ins. Co., supra, 47 Conn.Sup. 26-27.
In Labonte v. Federal Mutual Ins. Co., 159 Conn, 252, 253, 268 A.2d 663 (1970), the plaintiffs were the parents of a teen driver who, without their authorization, borrowed their car and caused property damage to a third party's car. They sought indemnification through their homeowner's insurance policy for a claim brought against them pursuant to a statute which provided for their vicarious liability. Id., 253 n. 1. The relevant portion of the insurance contract excluded from coverage "the ownership, maintenance, operation, use, loading or unloading of (1) automobiles . . . while away from the premises or the ways immediately adjoining." (Internal quotation marks omitted.) Id., 255. In finding that there was no duty to defend or indemnify under the homeowner's policy, the court noted: "[W]e think that the purpose of the exclusionary clause under consideration is to exclude coverage from all liability arising from an off-premises automobile accident, no matter what the theory of recovery might be. To hold otherwise would be to distort the ordinary scope of a homeowner's policy to the detriment of both the insurer and the public, which would be subjected to higher premium rates for broad-based risk which would, in most cases, serve only to duplicate coverage available in most automobile insurance policies." Id., 258.
In Guglielmoni v. Prudential Property Casualty Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 90 032929 (March 11, 1991, Fuller, J.) ( 3 Conn. L. Rptr. 359, 360), the automobile exclusion in the homeowner's policy did not apply to bar coverage under the policy. Both the plaintiff and the insured had been passengers in a car operated by a third party, and they were returning to the car after the parties had stopped at a restaurant. Id., 359. "As [the insured] entered the car, he picked up a beer bottle and in the course of turning to throw it into a trash container, [he] accidentally hit the plaintiff in the mouth with the bottle. At the time [he] had one foot in the car, and the plaintiff was behind him and not in contact with the car. The car was not running and [the driver] was outside the car." Id. The plaintiff recovered a judgment against the insured, and the homeowner's insurer (New London County) disclaimed liability for personal liability coverage pursuant to the motor vehicle exclusion. Id. The court noted: "The general rule is that use of a car . . . requires [a] showing of a connection between the use of the automobile and the accident or injury, which usually requires the setting in motion of the operative machinery of the vehicle or its movement or something resulting from an activity incidental to the movement of the vehicle from one place to another." Id., 360. The court found the "plaintiff ha[d] shown by a. preponderance of the evidence that the exclusion in the [homeowner's] policy [did] not apply" because the injury did not arise out of the use of an automobile, noting that "[t]he purpose of providing complete coverage to the insured would be defeated if some remote connection with the automobile not germane to the claim is considered to be outside the scope of the homeowner's policy when it is also not covered by any automobile insurance coverage." Id.
The court will next examine briefly how courts in other jurisdictions have interpreted identical, or nearly so, policy exclusions when those courts were presented with similar factual situations.
B Carbon Monoxide Cases
In Vanguard Ins. Co. v. Clarke, 438 Mich. 463, 475, 475 N.W.2d 48 (1991), overruled on other grounds, Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 664 N.W.2d 776 (2003), the Michigan Supreme Court held that the homeowner's policy did not cover the wrongful deaths at issue in the underlying action when it "contained an exclusion for liability `[for] bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any motor vehicle owned or operated by, or rented or loaned to any Insured . . .'" Id., 468. In that case, a father, after consuming alcohol, "drove home around midnight, and apparently used an automatic garage door opener to enter the family garage in his automobile. In a fatal error, [he] closed the garage door while the car engine continued to run. Deadly carbon monoxide fumes killed [him] as he sat in the car." Id., 467. The fumes also killed his wife, who went to the garage to look for him, and his son, who was found in the hallway leading to the bedrooms of the house. Id. The homeowner's insurer filed a declaratory judgment action in which the plaintiff in the wrongful death action argued that "the policy provided coverage for the negligent act of closing the garage door, and that act, concurrent with the negligent operation of an automobile, resulted in injury." Id., 468-69.
The court found that the policy terms were unambiguous. Id., 472. "The policy exclusion in the instant case plainly stated that homeowner's coverage would not extend to personal injury or property damage arising out of the use or operation of an automobile. Certainly, as the Court of Appeals recognized, the policy would have provided coverage had the garage door alone produced an injury, such as by closing on the insured's foot. In the instant case, however, the fumes produced by the operation of an automobile, and not the garage door, comprised the death-producing instrumentality. The direct terms of the auto-related occurrence exclusion therefore apply." Id., 473. Accordingly, the court held that "[b]ecause the tragic event at issue here clearly `arose out' of the operation and use of an automobile . . . the exclusion stands." Id., 475.
In Clarke, the Michigan Supreme Court, in analyzing their rule of reasonable expectation, noted that "[f]rom an objective standpoint, however, the language of the insurance policy itself provides the best answer because it unequivocally prohibited liability for personal injuries `arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any motor vehicle . . .' Furthermore, the [defendant's] estate obtained indemnification under the automobile policy from the same transaction at issue under the homeowner's policy. This indemnification provides strong inferential support that the insured had a reasonable expectation that the automobile policy covered the occurrence." Vanguard Ins. Co. v. Clarke, supra, 438 Mich. 472-73.
Note, however, that the Michigan Supreme Court has since held "that the rule of reasonable expectations has no application in Michigan, and those cases that recognized this doctrine are to that extent overruled." Wilkie v. Auto-Owners Ins. Co., supra, 469 Mich. 63 ("the Court [in Vanguard] characterized the `sole issue' in the case as whether to adopt the theory of dual or concurrent causality in insurance . . . This issue was resolved without any need to delve into the doctrine of reasonable expectations, and, thus, discussion of reasonable expectations was merely dicta" [citation omitted] id., 58-59).
In American Family Mut. Ins. Co. v. Co Fat Le, 439 F.3d 436, 438 (8th Cir., 2006), in a declaratory judgment action brought by the homeowner's insurer, `the policy exclude[d] coverage for bodily injuries or property damage `arising out of the ownership, supervision, entrustment, maintenance, operation, use, loading or unloading of any type of motor vehicle.' . . . On the night of April 28, 2001, [the insured] drove the car, which also held four of his friends, into the garage and closed the garage door. Once inside the garage, [the insured] kept the car's motor running, as well as the air conditioning and the cassette player. The next morning, [the insured's father] found the five boys dead in the car. The cause of death was determined to be acute carbon monoxide intoxication . . ." The "[a]ppellants allege[d] that the unsafe conditions on the premises were an inadequately ventilated garage and a running automobile in a closed garage. The former is not an inherently dangerous condition. It became dangerous only when the automobile was left running in the garage while the garage door was closed. The condition of a running automobile in an inadequately ventilated garage is not independent from the use of an automobile, which falls under the policy exclusion." Id., 440. The court concluded that the automobile exclusion applied and the claimed injuries were not covered by the homeowner's policy. Id., 441.
The court in Co Fat Le did not reach the issue of whether the controlled substances exclusion applied; supra, 439 F.3d 441; even though "acute methylenedioxymethaxuphetamine (commonly known as ecstasy) intoxication was determined to be another significant condition contributing to the deaths." Id., 438.
In contrast, in Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176, 177 (Fla.App. 1997), review dismissed, 717 So.2d 534 (Fla. 1998), in a declaratory judgment action brought by the homeowner's insurer, the court "conclude[d] that the premises liability claims were within the covenant to defend." "When the engine of an unoccupied motor vehicle was left running in a closed, unventilated garage, the air conditioning equipment — which was also located in the garage — dispersed carbon monoxide poison gasses throughout the house. All of the occupants, including the owner, died from the fumes." Id. The allegations of the underlying wrongful death complaint included allegations that the owner negligently closed the garage door, negligently maintained the air conditioning equipment, negligently failed to install carbon monoxide detectors, and negligently failed to warn the home's occupants. Id., 178.
The court "read the allegations of the complaints in the premises liability causes of action to assert that the deaths were legally or proximately caused not by the running engine of the motor vehicle but instead by reason of the negligent placement of the air conditioning equipment in the garage, or by the failure to open the garage door or to ventilate the garage, or by the failure to locate carbon monoxide detection devices throughout the house. [The court concluded] that a jury could theoretically find that any one of these alleged acts of negligence was the legal cause of the deaths." Id., 187. The court held that "the insurer must provide a defense against both the motor vehicle and premises liability claims." Id. The Westmoreland decision has been criticized, explained and distinguished in Florida and elsewhere.
Florida's Supreme Court later noted: "The court found the policy ambiguous and defined `arising out of' to require a showing of proximate causation. The [appellate court] has since clarified, however, that the ambiguity found in the Westmoreland policy was a product of the `arising out of' language combined with other policy language . . . As clarified, therefore, Westmoreland does not hold that the `arising out of' language, standing alone, is ambiguous." (Citation omitted.) Taurus Holdings, Inc. v. United States Fid. Guar. Co., 913 So.2d 528, 533 (Fla. 2005). See also Allstate Ins. Co. v. Safer, 317 F.Sup.2d 1345, 1350 n. 4 (M.D.Fla. 2004) ("The Court does recognize that one Florida District Court of Appeal has held that the term `arising out of' was ambiguous as used in a policy exclusion similar to one at issue in this case . . . However, courts outside of the Fourth District Court of Appeal have refused to follow that court's decision in Westmoreland . . . Additionally, at least one panel in the Fourth District Court of Appeal appears to have retreated from Westmoreland's holding that `arising out of' is ambiguous . . . The Court agrees with the majority Florida view that the exclusion is not ambiguous" [citations omitted]).
It is notable that in both Clarke and Co Fat Lee, the operator of the vehicle remained behind the wheel when he succumbed to the deadly fumes. Only in Westmoreland did the court face the factual scenario in which the vehicle was unoccupied. The court in Westmoreland, however, did not undertake an analysis of whether the unoccupied motor vehicle was in `use.' Instead, it noted that "[i]t is at once apparent that the link between bodily injury and the use of a motor vehicle in the exclusion lies in the words arising out of." (Emphasis in original.) Westmoreland v. Lumbermens Mutual Casualty Co., supra, 704 So.2d 180. It then found that the phrase `arising out of' "may reasonably and logically be interpreted in substantively different ways;" Id., 181; and found that it required a showing of proximate causation. Id., 182-83.
Under Connecticut precedent, however, the term `arising out of' was not ambiguous in a similar homeowner's policy motor vehicle exclusion; Hogle v. Hogle, supra, 167 Conn. 577; and "[u]nder this standard of causation it need not be shown that the incident in question was proximately caused by the vehicle for coverage to attach." Board of Education v. St. Paul Fire Marine Ins. Co., supra, 261 Conn. 48, citing Hogle, supra, and 6B J. Appleman J. Appleman, Insurance Law and Practice (Cum.Sup. 2001) § 4316, p. 88.
C Duty to Defend and/or Indemnify
The plaintiff seeks a judgment that "there is no coverage afforded to [Nantes] for the personal injury claims asserted by [the defendants], pursuant to the exclusions pertaining to claims that arise from the use of a motor vehicle." An insurer's duty to defend is determined by whether an allegation of the complaint falls even possibly within the coverage. The record before the court does not contain an underlying complaint. See footnote 4. The duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy; here, it appears a judgment was entered against Nantes in California per an arbitration proceeding.
"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . Federal Deposit Ins. Corp. v. Caldrello, 79 Conn.App. 384, 390, [830 A.2d 767] (2003)." (Internal quotation marks omitted.) General Star Indemnity Co. v. Millington, supra, 41 Conn. L. Rptr. 574 n. 3.
It is alleged in the defendant's counterclaim that a judgment has been entered against Nantes in California. Accordingly, it appears that the question of the plaintiff's duty to defend is moot. See Vermont Mutual Ins. Co v. Walukiewicz, supra, 290 Conn. 590 ("Because the jury trial in the negligence action had concluded prior to commencement of trial in the declaratory judgment action . . . the issue of whether the plaintiff had a duty to defend Walukiewicz in the negligence action became moot").
The following material facts are undisputed based upon the plaintiff's complaint, the admissions contained in the defendant's answer, and the evidence submitted by both parties. On February 12, 2007, at the end of the work day, Nantes provided transportation to the defendants in her automobile, driving them from Griffin Hospital to the Nantes residence. Upon arriving at the residence, Nantes drove her car into her garage, which was located underneath the living quarters of the raised ranch residence. Nantes and her passengers exited the vehicle to go upstairs to the living quarters for the night. The garage door was closed. Nantes did not turn off the vehicle's engine, the key remained in the ignition, and the motor continued to run. Early in the morning on February 13, 2007, according to her affidavit, Melikyan awoke feeling ill and "lapsed into unconsciousness" in the bathroom. Similarly, Dzhgalian attests that she awoke feeling ill and later "lapsed into unconsciousness." Nantes called "911" for emergency assistance, and the defendants received emergency aid and were transported to Griffin Hospital. The defendants attest that they sustained "severe and permanent" personal injuries due to their carbon monoxide exposure. Under the homeowner's insurance policy issued by the plaintiff, coverage for "Personal Liability" and "Medical Payments to Others" does not apply to "`bodily injury' . . . (f) [a]rising out of: (1) [t]he ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented to or loaned to an `insured.'"
The issue is whether the injuries allegedly sustained by the defendants could fall within the coverage provided by the homeowner's policy in light of that policy exclusion. To use an automobile is to put into action or service, have recourse to or enjoyment of it, or employ it for some purpose or object of the user. In the present case, Nantes and the defendants, asleep in their beds, were not employing the vehicle for some purpose at the time the injuries occurred, nor had they either recourse to or enjoyment of it. They alighted from the vehicle and went to bed, which suggests that at the time of the injuries, the vehicle was no longer in their service. It cannot be said, however, that the injuries arose out of some remote connection with the motor vehicle that is not germane to the claim. Nantes had put the vehicle into action or service when she drove the others home and pulled into the garage. Then, she failed to turn off the engine of the vehicle and failed to remove the key from the ignition. The fumes produced by the idling automobile comprised the injury-producing instrumentality. Connecticut precedent demonstrates that the link between bodily injury and the use of a motor vehicle in the language of the policy lies in the words arising out of. Our courts have consistently interpreted "arising out of" to mean "was connected with," "had its origins in," "grew out of," "flowed from," or "was incident to," even in the context of motor vehicle exclusions. While Nantes may not having been "using" the motor vehicle at the time that the injuries were sustained, the court finds that the injuries "arose out of the use of the motor vehicle" because they were "connected with," "had their origins in," "grew out of," "flowed from," or "were incident to" Nantes' use of the vehicle when she drove the vehicle home.
III A Concurrent Cause
Nantes and the defendants maintain that the carbon monoxide injuries sustained by the defendants "were caused by a combination of factors." Insofar as they argue by implication that the plaintiff has a duty to defend or indemnify Nantes under a "concurrent cause" theory, the court must address those arguments. "The problem of concurrent causation arises [w]hen an insured cause joins with one or more additional causes which may be uninsured . . . The question in such cases is whether the convergence of causes should defeat an insurance policy exclusion." Vanguard Ins. Co. v. Clarke, supra, 438 Mich. 465. In the leading concurrent cause case, State Farm Mutual Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 99-100, 102, 514 P.2d 123, 109 Cal.Rptr. 811 (1973) (en banc), the California Supreme Court ruled that liability coverage under a homeowners' policy was available with respect to a gunshot injury which was jointly caused by negligent driving, an excluded risk, and negligent filing of the gun's trigger mechanism, an included risk. See also Vanguard Ins. Co. v. Clarke, supra, 470.
In United Services Automobile Assn. v. Kaschel, 84 Conn.App. 139, 146, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004), our Appellate Court considered whether an insurance company had a duty to defend or indemnify a motorist under his homeowner's policy against a claim of negligent failure to render aid or assistance. The motorist allegedly struck a motorcyclist with his vehicle, exited the vehicle to check on the motorcyclist's injuries, and then left the scene in his vehicle without rendering aid. Id., 142. "The defendants urge[d the court] to apply the concurrent cause doctrine set out in [ Partridge, supra,] . . . [The court] decline[d] to do so because [it found that] Hogle v. Hogle, supra, 167 Conn. 572, controll[ed its] analysis in [that] case." Id., 146 n. 7. See also General Star Indemnity Co. v. Millington, supra, 41 Conn. L. Rptr. 572-73 (declining to apply concurrent cause doctrine to claims alleging negligent training of police officer involved in automobile collision in light of Kaschel and other precedent).
In the present case, as noted, Nantes and the defendants do not rely expressly on concurrent cause. They argue, however, that "the carbon monoxide injuries were caused by a combination of factors including (1) Nantes' failure to turn off the engine . . . (2) Nantes' closing the garage door, thereby containing the carbon monoxide fumes within the home, and (3) Nantes' failure to have carbon monoxide detectors placed in her home, which would have prevented the injuries form occurring." They argue further that "the injuries . . . [were not] in any way connected to the transportation of (the women) within the vehicle. Rather, the harm was caused by the failure to turn off the engine upon exiting the vehicle (coupled with the other negligent acts of closing the garage door and not installing carbon monoxide detectors)." Insofar as they argue that the homeowner's policy exclusion does not apply to the "other negligent acts of closing the garage door and not installing carbon monoxide detectors," these acts of negligence were not independently capable of producing the injuries claimed. Because Connecticut has not adopted the concurrent cause doctrine, the court will not consider it in determining the plaintiff's liability under the contract.
Nantes and the defendants do not cite Partridge. They do rely, however, on a number of cases in which a shooting incident occurred in an automobile, and at least one of those cases expressly adopts the reasoning of Partridge. See State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 542-43, 350 S.E.2d 66 (1986). See also Eichelberger v. Warner, 290 Pa.Super. 269, 276-79, 434 A.2d 747 (1981) (relying on Partridge in part to conclude that exclusionary clause acted to exclude only those injuries which were proximately caused by automobile).
It is not clear whether the concurrent cause doctrine, if adopted and applied, would require coverage in this case. In Co Fat Le, the Eighth Circuit Court of Appeals applied the law of Missouri, a state which recognizes the concurrent cause doctrine; id., 439; and held that the alleged unsafe conditions on the premises were not "an independent cause of the decedents' deaths." American Family Mutual Ins. Co. v. Co Fat Le, supra, 439 F.3d 440. The Michigan Supreme Court in Clarke opined in dicta that even "a California court might reject applying the concurrent causation theory under the facts presented because the concurrent cause of closing the garage door was not itself independently capable of producing the injury [death from carbon monoxide poisoning] for which relief is sought" Vanguard Ins. Co. v. Clarke, supra, 438 Mich. 473 n. 9. In that case, the Michigan Supreme Court expressly declined to adopt the concurrent cause doctrine, Id., 466.
B Dragging Injuries
Finally, Nantes and the defendants maintain that both of the women sustained injuries "from being dragged by Nantes while attempting to remove them from her home" and such injuries "do not arise out of the use of an automobile." They argue that "[t]he dragging injuries concerned action on the part of [Nantes] that was independent from the fumes . . ." There are no allegations regarding the dragging injuries in the plaintiff's declaratory judgment complaint, but the plaintiff does address the argument, maintaining that "there would be no need to make a rescue, if not for Nantes' use of her automobile" and that " Kaschel . . . applies with full force, and bars the defendant's negligent rescue claim."
Nantes and the defendants present the following evidence. Dzhgalian attests in her affidavit: "I also suffered a severe orthopedic injury, most probably sustained when [Nantes] dragged me down a. flight of steps and across the floor." Melikyan makes no such averment as to dragging injuries in her own affidavit. The plaintiff maintains, based upon the evidence it submitted, that "[b]y letter dated June 27, 2007, Yarnell [the attorney for the defendants] replied to the April 20, 2007 letter [in which the plaintiff had reiterated its denial of the claims based on the motor vehicle exclusion] claiming, for the first time, that [the defendants] were injured `as they were dragged/carried out of the home.'"
In her "time limit settlement demand" letter to the plaintiff dated November 12, 2007, Yarnell represents that the orthopedic injuries were "evidently received when she collapsed down the stairs and/or when Ms. Nantes dragged her down a flight of steps and across the floor."
The Appellate Court decision in Kaschel, supra, 84 Conn.App. 146, is not directly on point, as the court addressed the insured's failure to render aid, not aid allegedly rendered negligently. Id. (noting "any injuries that [the injured party] allegedly sustained as a result of [the insured's] failure to render aid to him arose out of [the insured's] use of his motor vehicle"). In General Star Indemnity Co. v. Millington, supra, 41 Conn. L. Rptr. 573, the court noted that "[t]he reasoning [in Kaschel] applies equally to the claims of negligent supervision and negligent training. If there was not a motor vehicle accident there would not and could not be any claims based upon negligent supervision and training, which claims clearly `flowed from' and `had their origins in' the motor vehicle collisions. There are no facts pleaded which establish a claim that the injuries could have resulted wholly from the independent failures to train or supervise in the absence of the automobile collisions." As noted by our Supreme Court in Hogle, supra, 167 Conn. 578, "[the insurer's] obligation . . . depends in this case on another fact, namely, whether [the insured's] `use' of [the] car was connected with the accident or the creation of a condition that caused the accident." (Emphasis added.)
Nantes and the defendants maintain that the "plaintiff's motion fails" because they argue that Nantes committed other actions resulting in "dragging injuries [that] are far removed from any use of Nantes' automobile." As discussed previously, when Nantes allegedly drove the vehicle home and then left it idling in the garage, it was that use of the motor vehicle which created the condition that caused the carbon monoxide injuries. Based upon the evidence submitted, Nantes and the defendants have not raised an issue of fact that the dragging injuries claimed were not sufficiently "connected with" the condition created by the motor vehicle. The exclusion applies.
Conclusion
Accordingly, the plaintiff's motion for summary judgment is granted.