Opinion
No. CV-06-5001716-S
April 23, 2008
MEMORANDUM OF DECISION RE THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, who claims he was injured on the premises of the defendants, seeks damages from the defendant gym and its owners. The defendants, in turn, have brought a third-party complaint against Essex Insurance Company, its insurer, seeking coverage under the terms of a policy of insurance issued by Essex. Essex has now moved for summary judgment as to all counts of the third-party complaint, contending that the plaintiff's claims are not covered by the subject policy. Essex argues that there are no facts in material dispute as to its contention that the plaintiff was volunteering his services when he was injured and that the policy in question excludes coverage for any claim that arises out of bodily injury to a person volunteering his services.
Most of the facts of this case are indeed not in serious dispute as they relate to the third-party complaint. The plaintiff was a member of the defendant/third-party plaintiff's gym. On September 21, 2005, he and his brother were at the gym to work out, and the defendant/third-party plaintiff, Gerald Montanari, an owner of the gym, was also present. The plaintiff and his brother had known Montanari for about ten years. Montanari told the plaintiff and his brother that a bay door was jammed and he was unable to close it by himself because he had recently sustained an injury to his eye. In addition, closing the door required the use of a ladder, and Montanari was afraid of heights. The plaintiff and his brother offered to help, and Montanari then directed the plaintiff to cut two cables in order to shut the door. Upon cutting the second of the two cables, the overhead door suddenly broke loose and caught the plaintiff's right hand in the track of the door, causing the injury that led to the filing of the instant complaint.
The defendants/third-party plaintiffs sought defense and indemnification under a Commercial General Liability Policy ("Policy") provided by Essex for a policy period that covered the date of the subject accident. The Policy included the following exclusion:
This insurance does not apply to any claim, suit, cost or expense arising out of "bodily injury" to
(1) any employee of a Named Insured arising out of and in the course of employment or while performing duties related to the conduct of the insured's business; or
(2) the spouse, child, parent, brother, sister or relative of that employee as a consequence of (1).
This exclusion applies whether an Insured may be liable as an employer or in any other capacity, and/or to any obligation to share damages with or repay someone else who must pay damages because of the injury, as well as liability assumed under any "Insured Contract."
Whenever the word "employee" appears above, it shall also mean any member, associate, leased worker, temporary worker or any person or persons loaned to or volunteering services to you. (Emphasis added.)
Relying on this provision, Essex has denied coverage to the defendants/third-party plaintiffs with respect to the plaintiff's action.
Essex now argues that no genuine issue of material fact exists as to whether it has a duty to defend and indemnify the defendants, and it therefore seeks summary judgment. Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Beers v. Bayliner Marine Corp., 236 Conn. 769, 771 n. 4, 675 A.2d 829 (1996).
"Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . such assertions are insufficient regardless of whether they are contained in a complaint or brief. Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226 (1995). The test is whether the movant would be entitled to a directed verdict on the same set of facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990). A party's motion for summary judgment is "properly granted if it raises at least one legally sufficient defense that would bar the (opposing party's) claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).
The parties agree that in Connecticut, "an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning." Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309, 524 A.2d 641 (1987); citing Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). When "a complaint in an action . . . states a cause of action against the insured which appears to bring the claimed injury within the policy coverage, it is the contractual duty of the insurer to defend the insured in that action . . ." Keithan v. Massachusetts Bonding Ins. Co., 159 Conn. 128, 138, 267 A.2d 660 (1970); accord Stamford Wallpaper Co. v. TIG Ins., 138 F.3d 75, 79 (2d Cir. 1998). "If the complaint [however] alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks omitted.) Springdale Donuts, Inc. v. Aetna Casualty Surety Co. of Illinois, 247 Conn. 801, 807, 724 A.2d 1117 (1999); see also Schilberg Integrated Metals Corp. v. Cont'l Cas. Co., 263 Conn. 245, 256, 819 A.2d 773 (2003).
It is also well-settled that "the duty to defend is considerably broader than the duty to indemnify." DaCruz v. State Farm Fire Cas. Co., 268 Conn. 675, 688, 846 A.2d 849 (Conn. 2004). "An insurer's duty to defend . . . 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 . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint." (Citations omitted; internal quotation marks omitted.) Id.
In Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 876 A.2d 1139 (2005), the Supreme Court noted that the insurer's duty to defend depends upon whether the injured party has alleged facts which bring the injury within the coverage. A liability insurer has a duty to defend its insured if the pleadings allege a covered occurrence, even if facts outside the four corners of those pleadings suggest that the claim may be without merit. Id., 466-67. When the pleadings do not allege a covered occurrence, of course, a liability insurer has no duty to defend. Id.
The gravamen of Essex's claim is its contention that the undisputed facts demonstrate that the plaintiff was "volunteering" his services within the meaning of the policy exclusion. There is little doubt that in a lay sense, the plaintiff did "volunteer" to fix the door as a gesture of friendship and/or accommodation, but the question in this case is whether he volunteered within the meaning of the policy exclusion. A careful reading of that exclusion leaves the court convinced that the policy drafters did not have this lay understanding of "volunteering" in mind, but rather a situation in which a person "stands in the shoes" of an employee or serves as a regular "volunteer," such as a hospital "candy striper," an unpaid intern at a law firm (or at a gym, for that matter) and the like. One must keep in mind that the exclusion is essentially one that bars coverage for injuries incurred by employees. The only reference to "volunteering" is contained in a section that defines an employee as including: "any member, associate, leased worker, temporary worker or any person or persons loaned to or volunteering services . . ."
This definition implies more than the ephemeral relationship that occurs when an individual offers to lend a helping hand, which is what the plaintiff did in this case (to his, and his hand's, detriment). The inclusion of persons "volunteering services to you" in the same breath as mention of members, associates, leased workers, temporary workers and persons loaned to the employer, suggests strongly that the policy contemplated the exclusion of persons who served in an employment or at least employment-like relationship with the insured. It can hardly be argued that the plaintiff, on the premises as a patron for a workout and agreeing to help an injured acquaintance solve an equipment problem, had, by doing so, either become the functional equivalent of an employee or had assumed an employment-like relationship with the defendant.
The court notes that a separate section of the policy also includes a definition of "Volunteer worker," which is defined as "a person who is not your `employee,' and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you." Although it is probable that a "volunteer worker," as defined in this section, and "one who volunteers services" as used in the exclusion are one and the same, the court's decision is not dependent on this identity of meaning. Still, the definition implies a relationship that is more than something that occurs in passing, and this plaintiff, unlike a "volunteer worker" was not assigned "duties" by any of the defendants. Thus, to the extent that volunteer workers and those who volunteer services are the same thing, the existence of this definition adds strength to the court's conclusion that the plaintiff was not a "volunteer" within the meaning of the exclusion.
Moreover, the policy's exclusion of employees, including employee-like volunteers, only applies to injuries "arising out of and in the course of employment or while performing duties related to the conduct of the insured's business." Quite clearly, this "volunteer's" actions did not "arise out of the course of his employment," nor was the plaintiff performing a "duty." All he did was offer to help out.
This court therefore concludes that given the undisputed facts of this case, the policy's exclusion of coverage for injuries sustained by an employee (which term includes those who volunteer their services to the employer), arising out of and in the course of employment or while performing duties related to the conduct of the insured's business, does not entitle Essex to judgment as a matter of law declaring that it is not obliged to provide a defense and/or to indemnify its insured. Accordingly, the motion for summary judgment is denied.