Opinion
No. UWY-CV-08-5011071-S
July 14, 2011
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The parties in this action are the plaintiff, Stephen Slokus and the defendant, Utica First Insurance Company (Utica First). The plaintiff brought the present declaratory action on October 31, 2008, and asserted claims for breach of duty to defend and declaratory judgment that the defendant owes coverage to the plaintiff under a policy of homeowner's insurance issued to Lori Readel (the Policy). In particular, the plaintiff seeks a declaration that he is entitled to insurance coverage in connection with claims asserted against him in an amended complaint that was filed in Rinaldi v. Slokus, Superior Court, judicial district of Waterbury, Docket No. CV 075003359 (the Rinaldi lawsuit).
The Rinaldi lawsuit was commenced in January 2007, wherein Mary Rinaldi alleged that she was bitten by a dog while a lawful visitor to 27 Katie Lane, Waterbury, Connecticut (the premises). Rinaldi did not allege that the plaintiff resided at the premises and, in fact, alleged the plaintiff was a guest in the house. In her amended complaint dated October 11, 2007, Rinaldi alleged that the plaintiff resided at the premises and that he and the owner of the premises "owned and/or kept" the subject dog. The plaintiff has alleged that he was owed a defense by the defendant based on the four corners of the Rinaldi amended complaint and the defendant having failed to defend, is now liable for the amount of the settlement of the underlying Rinaldi lawsuit.
On December 3, 2010, the defendant moved for summary judgment on the plaintiff's breach of duty to defend and declaratory judgment counts and sought a declaration by the court that the defendant did not breach a duty to defend the plaintiff in connection with the Rinaldi lawsuit and that the defendant has no duty to indemnify the plaintiff for any settlement he paid to Rinaldi or to reimburse him for defense costs. On January 11, 2011, the plaintiff cross-moved for summary judgment on the issue of the defendant's liability for breach of duty to defend. Opposition briefs were filed by both parties, along with a reply brief by the defendant.
On June 6, 2011, oral argument was heard on the defendant's motion for summary judgment and the plaintiff's cross-motion for summary judgment.
II FACTUAL BACKGROUND
On December 24, 2004, Mary Rinaldi was a visitor to the premises owned by Lori Readel. On that date, the plaintiff's dog bit Rinaldi and Rinaldi alleged she sustained and suffered multiple abrasions and contusions. Rinaldi commenced an action against Lori Readel, the owner of the premises, and the plaintiff on January 2, 2007, relating to the dog bite. In her original complaint, Rinaldi alleged that the plaintiff was a guest in the home of Readel. On March 2, 2007, the plaintiff executed an affidavit in support of Readel's motion for summary judgment affirming that he was present as a guest at Lori Readel's apartment on December 24, 2004, and that he was the sole owner and/or keeper of the dog. He also affirmed that as of December 24, 2004, his legal residence was 1883 Massachusetts Avenue, NE, St. Petersburg, Florida. (Slokus Aff. March 2, 2007.) Readel's motion for summary judgment was denied. On August 9, 2007, counsel for Readel requested defense and indemnity coverage from the defendant for Readel. Thereafter, the defendant tendered a defense to Readel.
On October 11, 2007, Rinaldi amended her complaint and alleged that both Readel and "Stephen Slokus resided at the property at 27 Katie Lane, Waterbury, Connecticut." On December 18, 2007, counsel for the plaintiff demanded a defense for the plaintiff based on the new allegations in the amended complaint.
The policy at issue is a homeowner's insurance policy issued to named insureds Robert Readel and Lori Readel for the property located at 27 Katie Lane, Waterbury, Connecticut. The portions of the policy that are relevant to this action include the following:
Coverage L — Personal Liability
We pay, up to our limit, all sums for which an insured is liable by law because of bodily injury . . . caused by an occurrence to which this coverage applies. We will defend a suit seeking damages if the suit resulted from bodily injury or property damages not excluded under this coverage.
The term "insured" is defined in relevant part under the Definitions section of the policy as 6. Insured means: (a) you; (b) your relatives if residents of your household . . .
The defendant denied coverage by letter dated December 26, 2007, on the grounds that the plaintiff was "not named on the declarations page of this policy at the time of this incident and he and Lori Readel were not married at the time of the incident so he did not qualify as an insured under this policy." (Def.'s Ex. No. 4.) On January 18, 2008, counsel for the plaintiff responded to the defendant and contended that it had an obligation to defend the plaintiff. Counsel argued that "[h]ere the Amended Complaint alleges that Mr. Slokus was a resident of Ms. Readel's household. The Amended Complaint therefore infers that Mr. Slokus is related to Ms. Readel." (Emphasis added.) (Def.'s Ex. No. 5.) Counsel for the plaintiff then directed the defendant to the American Heritage Dictionary definition of "relatives," which means "[c]onnected by kinship, common origin or marriage." Id. Counsel argued that a "fiancé" qualified as "being connected." Id.
On January 24, 2008, the defendant advised the plaintiff's counsel that it was not changing its position on coverage, denied coverage and a defense to the plaintiff.
II DISCUSSION A. Summary Judgment
On December 3, 2010, the defendant Utica First moved for summary judgment on the plaintiff's breach of duty to defend and declaratory judgment counts and sought a declaration by the court that the defendant did not breach a duty to defend the plaintiff in connection with the Rinaldi lawsuit and that the defendant has no duty to indemnify him for any settlement he paid to Rinaldi or to reimburse him for defense costs. On January 11, 2011, the plaintiff cross-moved for summary judgment on the issue of the defendant's liability for breach of duty to defend.
"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 of 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case." (Citations omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material fact, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard.
To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The court may address the merits of a declaratory judgment action upon a motion for summary judgment. United Services Automobile Assn. v. Marburg, 46 Conn.App. 99, 102 n. 3, 698 A.2d 914 (1997).
B. Interpretation of Policy
The defendant first contends that it is not liable to the plaintiff because he is not an "insured" as defined by the Policy. In this case, neither the plaintiff nor the defendant dispute that the plaintiff is not a named insured in the Policy. The plaintiff, however, contends that he is an insured as that term is defined under the Policy.
"It is the function of the court to construe the provisions of a contract of insurance . . . The [i]nterpretation of an insurance policy . . . involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . [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 . . . [giving the] words . . . [of the policy] their natural and ordinary meaning . . . [and constructing] any ambiguity of the terms . . . in favor of the insured." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 784-85, 900 A.2d 18 (2006), citing Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 462-63, 876 A.2d 1139 (2005).
"Our jurisprudence makes, clear, however, that although ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied." (Internal quotation marks omitted.) Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 770, 653 A.2d 122 (1995). "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.) Id., 771.
"It is well established [however] that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety, Co., 256 Conn. 343, 352, 773 A.2d 906 (2001). A duty to defend does not arise only when the injured party can successfully maintain a cause of action against the insured. The duty arises when the complaint states facts that bring the injury within the policy coverage. See Moore v. Continental Casualty, Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000). "On the other hand, if the complaint 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). "The defendant's duty to defend . . . is not invoked unless the party named in the complaint falls within the definition of `insured' as included in the policy." Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 466, 876 A.2d 1139 (2005).
The policy at issue has one relevant coverage part which is the definition section relating to the term "insured." The court starts its ambiguity inquiry with an examination of the language contained in Definition Section 6. Section 6 provides, in relevant part:
"Insured means: (a) you; (b) your relatives, if residents of your household . . ."
The narrow issue for this court's interpretation is whether the plaintiff was Readel's "relative" who resided with her at the premises. The plaintiff argues that he qualifies as a "relative" for purposes of subparagraph (b) because Rinaldi's amended complaint alleges that he was a resident in Readel's household at the time of the dog bite involving Rinaldi. He contends that relative status is established in two ways. First, "relative status is established by inference because of the allegation in the operative complaint that Slokus resided with Readel." (Pl.'s Mem. 4.) Second, the plaintiff contends that "Utica First had information available to it from multiple sources, including the deposition of Rinaldi, taken by counsel appointed by Utica First to defend Readel, that Slokus both resided in Readel's home and was a relative. Readel and Slokus were engaged to be married at the time of the underlying dog bite." (Pl.'s Mem. 5.) The plaintiff contends that under Connecticut law there is a "one-way street rule" permitting an insured to establish a duty to defend by extrinsic evidence. Id. The plaintiff contends that he was the fiancé of Readel and by virtue of that relationship he was a "relative" as that term is defined under the Policy. Finally, the plaintiff contends that although the term "relatives" supports a finding that he was an "insured" at the time of the tender of the defense, alternatively the term "relatives" is ambiguous, and must be construed in favor of coverage. (Pl.'s Mem. 9-10.)
In examining the extrinsic evidence the plaintiff has chosen to support his motion for summary judgment, including the critical allegations that he resided at the home of Readel and was the fiancé of Readel, it is striking that neither the plaintiff nor his alleged fiancé Readel submitted an affidavit to support the allegation they were engaged as of December 24, 2004 or that he resided at the premises. In fact, the plaintiff has offered no affidavits to support this factual claim. Instead, the plaintiff offers an unsworn, uncertified deposition transcript of Rinaldi, the third party allegedly bitten by the plaintiff's dog. Practice Book § 17-45 clearly provides that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Unless the opposing party rebuts the moving party's affidavits with affidavits or evidence of its own, "the court is entitled to rely on the facts stated in the affidavit of the movant." Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d. 115 (1983). The plaintiff has not offered any affidavits, certified transcripts of testimony under oath, disclosures or written admissions to support his claim he was a fiancé of Readel or that he resided at the premises. The uncertified deposition transcript of the testimony of Rinaldi is not sufficient to establish that the plaintiff was a resident of the premises and the court notes that such testimony directly contradicts the affidavit of the plaintiff in the Rinaldi lawsuit affirming he was not a resident at the time of the incident. Since the defendant does not contest that the plaintiff was the fiancé of Readel, for purposes of this motion the court will assume that the plaintiff was the fiancé.
Even assuming that plaintiff was the fiancé of Readel and resided at the premises, the plaintiff must still establish he was a "relative" of Readel. Both the plaintiff and the defendant cite to the Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 994 A.2d 174 (2010) case with respect to the interpretation of the term fiancé in connection with an insurance policy. The plaintiff relies upon this decision for the proposition that a fiancé in a single-family home equitably qualified as an insured for purposes of a homeowner's policy. The defendant contends that the Connecticut Supreme Court did not hold that a cohabitating fiancé in a single-family home qualified as an insured for purposes of a homeowner's policy.
In Allstate, the plaintiff insurer brought an equitable subrogation action against the defendant fiancé seeking to recover damages it had paid under a homeowner's insurance policy to its insured as a result of a fire allegedly caused by the fiancé's negligence. Id., 256. At trial, evidence was submitted that at the time of the fire, the insured was engaged to the fiancé, the fiancé resided at the house with the insured, the fiancé had performed numerous substantial improvements to the house as if he was the owner and the insured and fiancé shared equally all of the expenses for the house, including the cost of the insurance policy. Id., 263-65. The fiancé argued that his status as the insured's fiancé and cohabitant rendered him a "covered person" under the insured's insurance policy and therefore the plaintiff insurer could not recover against him pursuant to the doctrine of equitable subrogation. Id., 256-57. The trial court rendered judgment in favor of the plaintiff insurer and the fiancé appealed to the Appellate Court claiming that the plaintiff insurer was not entitled to equitable subrogation because he was a tenant and a lodger against whom no right of subrogration existed. Id., 256-58. The Appellate Court rejected the fiancé's arguments and affirmed the judgment of the trial court. Id., 258. The Supreme Court reversed, holding that a proper exercise of the trial court's discretion in balancing the equities to determine whether subrogation was proper would have yielded one result, namely that since the insured and fiancé were economically dependent upon each other, the fiancé lived there full-time for two and one-half years, made numerous substantial improvements to the house, they shared all of the expenses for the house, including the purchase of insurance for the premises, that the equities precluded subrogation. The court examined the status of the defendant fiancé with respect to a landlord-tenant relationship or host-social houseguest relationship and disagreed that in order to find subrogation, the relationship needed to be categorized in the context of one of these two relationships. Id., 270-73.
The Connecticut Supreme Court did not find that the defendant's status as a fianc6 and cohabitant rendered him a covered person under the insured's insurance policy. To the contrary, the court clearly found that the fiancé and the insured both "mistakenly assumed, without verifying, that the defendant's status as [the insured's] fiancé and cohabitant rendered him a covered person under [the insured's] policy." Id., 264. This court does not find the holding in Allstate to be applicable to the issue before it in this action, namely whether a fiancé is a "relative" under the insured's insurance policy.
Under Connecticut's rules of contract construction, the language of a policy must be accorded "its natural and ordinary meaning" and courts have deferred to the dictionary definition of terms that are undefined in an insurance policy. See Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 779, 784-85.
"To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 539. Webster's Third New International Dictionary defines the term "relative" as "a person connected with another by blood or affinity; especially one allied by blood . . ." Webster's Third New International Dictionary (1986 Ed.) p. 1916. The term "affinity" is defined, in relevant part, to mean "a relationship by marriage (as between a husband and his wife's blood relatives) . . . broadly: any familial relationship." Webster's Third New International Dictionary 35 (1986 Ed.) p. 35.
The plaintiff contends that the American Heritage Dictionary defines the term "relative" as "connected by kinship, common origin or marriage." American Heritage Dictionary (3d Ed. 1996) p. 1523. The plaintiff also claims that "relative" means "something having a relation or connection to something else." Id. The plaintiff then argues that "kinship" is defined as "[c]onnection by blood, marriage, or adoption; family relationship" or "relationship by nature or character; affinity." Id., 993. He contends that he had an affinity with Readel. The court finds that the plain meaning of the term "relative" is a connection by blood, marriage or adoption, none of which describes the relationship the plaintiff had with Readel.
In the alternative, the plaintiff contends that since there are two plausible interpretations of the term "relative," the term "relative" is ambiguous and the doctrine of contra proferentem applies. Conversely, the defendant contends that the term "relative" is not ambiguous and the doctrine of contra proferentem is inapplicable. "The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Springdale Donuts, Inc. v. Aetna Casualty Surety Co. Of Illinois, supra, 247 Conn. 806. "Rather, insurance policy language is ambiguous if we determine that it is reasonably susceptible to more than one reading." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 786. "[W]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] 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." (Citation omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002); see also Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004).
The court, however, finds only one plausible interpretation of the term "relative" and that the term "relative" clearly means a "connection by blood, marriage, or adoption." The court concludes that the term "relative" in the policy language in Definition Section 6 is not ambiguous.
It is undisputed that the plaintiff was not connected to the insured by blood, marriage or adoption. Based on the foregoing, the court finds that the plaintiff was not a "relative" as that term is defined in the policy and that the defendant did not breach its duty to defend the plaintiff in connection with the Rinaldi lawsuit, nor does it have a duty to indemnify the plaintiff or reimburse the plaintiff for defense costs or for any settlement paid to Rinaldi.
IV CONCLUSION
Based on the foregoing, this court grants the defendant's motion for summary judgment and denies the plaintiff's cross-motion for summary judgment. The court declares (1) that the defendant Utica First did not breach a duty to defend the plaintiff, Stephen Slokus in connection with the Rinaldi lawsuit; and 2) that the defendant has no duty to indemnify the plaintiff or to reimburse the plaintiff for defense costs or for any settlement he paid to Rinaldi.