Opinion
No. CV-04-4001476-S
April 17, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The third-party defendant, Cambridge Mutual Fire Insurance Company, has moved for summary judgment on the single-count Cross Complaint filed by the defendant-cross complainant, Gregory Powers.
Facts
In the Second Amended Complaint dated April 29, 2005 (the "Complaint"), the plaintiffs allege that on August 5, 2005 and prior thereto, Lisa Wilderman and her husband, Scott Wilderman, were friends and neighbors of Gregory Powers, and his wife. The couples ate meals together, spent time together, assisted each other in the care and maintenance of their properties, and generally carried on a friendly and neighborly relationship.
On August 5, 2005, Gregory Powers, without the plaintiffs' knowledge, entered the plaintiffs' property, approached the window of the bathroom, and photographed or attempted to photograph Lisa Wilderman in a partial state of undress. Complaint, ¶¶ 4-5. While outside the bathroom window, Gregory Powers struck the bottom of the window with his camera, and as a result, Lisa Wilderman became startled, and noticed the camera and hand holding it. She contacted police, which resulted in the arrest of Gregory Powers that evening with the camera in his possession, hiding in the woods across the street from the plaintiffs' home. Complaint, ¶ 6.
After the arrest, a search warrant was executed at the residence of Gregory Powers, at which time, videotapes, photographs, computer equipment and a telescope were taken into possession by the authorities. Complaint, ¶ 7. Lisa Wilderman was depicted in additional photographs and videotapes found at the residence of Gregory Powers, and the telescope had been pointed at and focused upon the plaintiffs' property. Complaint, ¶ 8.
In the First Count of the Complaint, Lisa Wilderman alleges negligent infliction of emotional distress. In the Second Count she alleges intentional infliction of emotional distress. Scott Wilderman alleges loss of consortium in the Third Count of the Complaint.
The property of Gregory Powers located at 15 Beach Park Road, Clinton, Connecticut was insured by Cambridge Mutual Fire Insurance Company under policy HP 2222225 issued to Beverly Powers, 15 Beach Park Road, Clinton, Connecticut, for the period of October 15, 2003 to October 15, 2004. The policy includes the Homeowners Additional Coverage Endorsement (H-142).
In October 2005, Gregory Powers filed a Cross Complaint against Cambridge Mutual Fire Insurance Company. According to the Cross Complaint, the Wildermans' Complaint alleges that Gregory Powers "negligently violated the plaintiffs' . . . rights to privacy," the policy "defines personal injury to include invasion of privacy," yet Cambridge has refused to defend and indemnify Gregory Powers.
On or about December 13, 2005, Cambridge filed an Answer denying coverage, and the following Special Defenses:
First Special Defense
If the third-party plaintiff sustains the burden of proving that he is entitled to coverage in the first instance based upon the basic insuring agreement, the third-party plaintiff is not entitled to coverage because the third-party plaintiff's conduct falls within the exclusion to coverage for bodily injury or property damage which is expected or intended by the insured.
Second Special Defense
If the third-party plaintiff sustains the burden of proving that he is entitled to coverage in the first instance based upon the basic insuring agreement, the third-party plaintiff is not entitled to coverage because the third-party plaintiff's conduct falls within the exclusion to coverage for injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured.
The relevant provisions of the insurance policy are as follows:
Section II — Liability Coverages Coverage E. — Personal Liability
If a claim is made or a suit is brought against an" CT Page 5512 insured " for damages because of" bodily injury " or" property damage " caused by an " occurrence " to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the " insured " is legally liable. Damages include prejudgment interest awarded against the " insured "; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the" occurrence " equals our limit of liability.
The relevant bolded/quoted words are defined as follows:
" Bodily Injury " means bodily harm, sickness or disease, including required care, loss of services and death that results.
" Property damage " means physical injury to, destruction of, or loss of use of tangible property.
" Occurrence " means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a " bodily injury "; or
b. " property damage" .
The Homeowners Additional Coverage Endorsement (H-142) provides an additional definition of "bodily injury":
Personal Injury Under Coverage E — Personal Liability, the definition of bodily injury is amended to include personal injury.
"Personal injury" means injury arising out of one or more of the following offenses:
1. False arrest, detention or imprisonment, or malicious prosecution;
2. libel, slander or defamation of character; or
3. Invasion of privacy, wrongful eviction or wrongful entry.
The policy then provides the following exclusion to coverage:
Section II.
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to " bodily injury " or " property damage ": a. Which is expected or intended by the "insured";
The Homeowners Additional Coverage Endorsement (H-142) also provides an exclusion to coverage:
Section II Exclusions do not apply to personal injury. Personal injury insurance does not apply to: 2. injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured; . . .
Discussion of the Law and Ruling
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Gregory Powers does not claim coverage under the basic insuring agreement. His claim is based upon the definition of personal injury in the Homeowners Additional Coverage Endorsement because the endorsement defines personal injury to include invasion of privacy.
The issue before this court, then, is whether coverage exists under the Homeowners Additional Coverage Endorsement (H-142) set forth above.
The obligation of the insurer to defend . . . depend[s] on whether the injured party . . . has, in his complaint, stated facts which bring the injury within the coverage. If th[at] . . . situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. (Internal quotation marks omitted.)
DaCruz v. State Farm Fire Casualty Ins. Co., 268 Conn. 675, 687, 846 A.2d 849 (2004).
"(I)f the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citation omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). "The question of whether an insurer has a duty to defend its insured is purely a question of law." Community Action, supra, at 395.
Cambridge is entitled to the entry of summary judgment for three reasons.
First, the Complaint alleges conduct by Powers which is "expected or intended." As set forth above the policy at issue excludes bodily injury which is expected or intended by the insured.
Powers has submitted an affidavit in which he avers:
5. To the extent I undertook any of the actions alleged in the Plaintiffs' Complaint in this action, I did not do so with the expectation or intention of causing bodily injury, emotional distress or personal injury to Lisa Wilderman.
Powers cannot convert intentional conduct into negligent conduct merely by swearing that he did not intend the specific injury that actually occurred, as long as the injury which occurred was the natural result of his intended acts. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 779, 607 A.2d 418 (1992).
In Schuss the dispositive issue was whether the plaintiff, American National Fire Insurance Company, produced sufficient evidence for a jury to find that the defendant, Barry Schuss, acted negligently, rather than intentionally, when he set fire to a synagogue. The Court stated:
It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103, 491 A.2d 368 (1985); are separate and mutually exclusive. "The distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences." W. Prosser W. Keeton, Torts (5th Ed. 1984) p. 33. Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear.
"As Holmes observed, even a dog knows the difference between being tripped over and being kicked." Id.
In its most common usage, "intent" involves "(1) . . . a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act." (Emphasis in original.) Id., p. 34: Also, the intentional state of mind must exist when the act occurs. Id. Thus, intentional conduct "extends not only to those consequences which are desired, but also to whose which the actor believes are substantially certain to follow from what the actor does." Id., p. 35. Furthermore, "[i]t is not essential that the precise injury which was done be the one intended." Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). "Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." W. Prosser W. Keeton, supra, p. 36. Our case law accords with these principles. See, e.g., Mingachos v. CBS, Inc., supra; Alteiri v. Colasso, supra.
American National Fire Ins. Co. v. Schuss, supra, at 775-76.
The Court in Schuss further stated:
The only rational conclusion a fact finder could have reached is that the defendant acted either with the desire to cause harm by fire to the building or its contents, or with the substantial certainty that such harm would occur. The only rational conclusion is that the defendant intended, in the sense that we have discussed, to bring about a result, namely, some burning of that building or its contents, that invaded the interests of the synagogue in a way that the law forbids. W. Prosser W. Keeton, supra, p. 36. "It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); D'Arcy v. Shugrue, 5 Conn.App. 12, 21, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). It would defy common sense to think that the defendant neither desired nor knew with substantial certainty that, when he set the fires, particularly the fire in the sanctuary, either the building or its contents or both would be damaged by fire.
It is of no moment that he may not have specifically intended the Torah scrolls to burn, or that he may not have specifically intended that the building be substantially damaged by fire. The degree of the intentional invasion of the synagogue's interest is not determinative. It is not necessary that the precise injury that occurred be the one intended, so long as the injury was the direct and natural consequence of the intended act. Polmatier v. Ross, supra. 240; Alteiri v. Colasso, supra, 334. (Emphasis added).
American National Fire Ins. Co. v. Schuss, supra, at 778-79.
The injury alleged by Lisa Wilderman, distress at being surreptitiously photographed, looked at with a telescope and videotaped, clearly is a direct and natural consequence of Powers' intentional acts of spying on her. As in Schuss, juxtaposing the word "negligently" with a description of Power's conduct does not transform it from intentional to negligent conduct.
The second basis for the summary judgment in favor of Cambridge is that the Wildermans do not allege invasion of privacy. In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28 A.2d (1982), the Supreme Court recognized a cause of action for invasion of privacy. The Court adopted the four categories of invasion of privacy as set forth in 3 Restatement (Second), Torts § 652A: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Id.
In the Complaint, the Wildermans allege negligent infliction of emotional distress, intentional infliction of emotional distress and loss of consortium as a result of the event on August 5, 2004 and the prior "surveillance activities" by Gregory Powers. The word privacy is not even used.
The Homeowners Additional Coverage Endorsement (H-142) does expand the definition of "bodily injury" to include "personal injury" but the definition of "personal injury" does not include every tortious offense. It includes invasion of privacy, but an insurer's duty to defend is measured only by the allegations of the pleading and the Complaint does not allege invasion of privacy.
Finally, even if the Wildermans had alleged invasion of privacy, the exclusion for injury caused by a violation of penal law or ordinance would apply to every substantive factual allegation of the Complaint.
The clear illegality of Powers' conduct was specifically alleged in Paragraphs 4-8 of the Complaint, where the plaintiffs precisely set forth how Gregory Powers entered their property without their knowledge, attempted to photograph Lisa Wilderman in a partial state of undress, and was apprehended hiding in the woods, which lead to the discovery of evidence of prior surveillance and photographing activities.
Cambridge has presented copies of arrest and incidents reports of the Clinton Police Department, which indicate that Gregory Powers was charged with: (1) simple trespass, an infraction (C.G.S. § 53a-110a); (2) disorderly conduct — peeping tom, (a class C misdemeanor C.G.S. § 53a-182); (3) voyeurism, a class D felony (C.G.S. § 53a-189a); and (4) stalking in the third degree, a class B misdemeanor (C.G.S. § 53a-181e). The conduct alleged in the Complaint falls directly within the aforementioned statutes.
C.G.S. § 53a-110a: "A person is guilty of simple trespass when, knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property."
C.G.S. § 53a-182: "A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse; or (7) commits simple trespass, as provided in section 53a-110a, and observes, in other than a casual or cursory manner, another person (A) without the knowledge or consent of such other person, (B) while such other person is inside a dwelling, as defined in section 53a-100, and not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy."
C.G.S. § 53a-189a: (a) A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy."
C.G.S. § 53a-181e: "A person is guilty of stalking in the third degree when he recklessly causes another person to reasonably fear for his physical safety by wilfully and repeatedly following or lying in wait for such other person."
Moreover, Cambridge has attached the transcript of the criminal sentencing hearing that was conducted on July 7, 2005 before the Honorable Robert L. Holzberg. Gregory Powers pled guilty to disorderly conduct for all of the acts he committed against Lisa Wilderman. In return, he was sentenced to 90 days — suspended, 18 months probation, home confinement for four successive weekends, an order that he could not go within 500 feet of the Wildermans or their property, an order that he could not possess photography equipment, mental health counseling, and restitution of $2,753.08.
On October 24, 2006, Powers testified about his criminal case at a deposition. He said that he was not surprised that he was arrested. He tried to run away because he did not want to be arrested. Dep. of Gregory Powers, pp. 93-94. He then confirmed his plea of guilty to the charge of disorderly conduct. When asked why he pled guilty, he testified that the prosecutor proposed an offer and the terms were acceptable. When asked what the plea covered, he testified that the plea covered all of his conduct, including his presence on the property and all photographs — everything he was arrested for. When asked if he was guilty of the acts for which he was arrested, he said yes. Dep. of Gregory Powers, pp. 101-03.
Based on the foregoing, the injuries alleged by the Wildermans were caused by conduct that falls squarely within the violation of penal law exclusion to coverage. For the reasons set forth above, summary judgment is hereby entered in favor of Cambridge Mutual Fire Insurance Company on the Cross Complaint by Gregory Powers.