American Alternative
v.
St. Paul Guardian

Connecticut Superior Court Judicial District of New Haven at New HavenMar 27, 2007
2007 Ct. Sup. 8677 (Conn. Super. Ct. 2007)
2007 Ct. Sup. 867743 CLR 222

No. CV 05 4008516

March 27, 2007


MEMORANDUM OF DECISION


Motion for Summary Judgment #128

On March 15, 2006, the plaintiff, American Alternative Insurance Corporation (AAIC), brought the present action against nine defendants, seeking a declaratory judgment. The first, named defendant is St. Paul Guardian Insurance Company (St. Paul). The remaining eight defendants include: the town of Prospect (the town); St. Paul Travelers Company Inc.; Shawn LaJoie and his insurance company, Great American Insurance Company; Infinity Insurance Company; William Hunter, in both his administrator and individual capacity (Hunter defendants); and the Volunteer Fire Department of Prospect (VFDP). The plaintiff amended their complaint on April 26, 2005.

For the purposes of this memorandum, St. Paul Guardian Insurance Company and St. Paul's Travelers Companies Inc., are collectively referred to as "St. Paul."

The relevant procedural history is as follows. The present case arises from a tragic accident that occurred on March 26, 2001. The decedent, Margaret Hunter, was killed when her car was struck by a car operated by Shawn LaJoie, a volunteer fire fighter in the town of Prospect, as he was responding to a fire. The decedent's husband, William Hunter, filed a lawsuit alleging negligence against LaJoie in Superior Court. An offer of judgment for $3,000,000 was filed by Hunter. The offer was not accepted by any of the defendants. After a jury trial, the jury found that Hunter's wife had be twenty five percent at fault and a verdict was accepted for $3,465,000 for the decedent's estate and $600,000 Hunter. Judgment was subsequently entered for these amounts, plus offer of judgment interest in the amount of $1,319,066.28 and supplemental interests and costs.

AAIC, the insurance company of the Volunteer Fire Department of Prospect, provided coverage to LaJoie, a volunteer firefighter. The AAIC policy included a $1,000,000 per accident limit of liability under a commercial automobile policy and a $1,000,000 per occurrence limit of liability under an umbrella policy. The limits of this policy do not sufficiently cover the liability incurred by the judgment, leaving LaJoie with a personal liability for the remaining balance of more than two million dollars.

AAIC now seeks, by way of a declaratory judgment, a determination that LaJoie is a covered insured under the town's insurance policy with St. Paul. Additionally, AAIC seeks a determination of the pro rata shares of coverage as among the other insurance companies made party to this action and a determination of what payment, if any, of the offer of judgment and postjudgment interest awarded in the original action against LaJoie, must be paid.

In response to AAIC's complaint, the Hunter defendants filed an amended counterclaim and cross claim on September 12, 2005. A second amended counterclaim and cross claim was filed on May 23, 2006. Count one and two of the counterclaim, raising allegations against AAIC are not at issue in the present matter before the court. Counts one through four of the cross claim raises allegations against St. Paul. In count one of the cross claim, the Hunter defendants allege that St. Paul is liable for breach of the contract of insurance, pursuant to General Statutes § 38a-321. Count two of the cross claim alleges a breach of the duty of good faith by St. Paul, pursuant to § 38a-321. Count three alleges a violation of Connecticut Unfair Trade Practices Act (CUTPA) and count four alleges a cause of action for breach of contract and duty of good faith as third-party beneficiaries under the St. Paul policy. Count five of the cross claim raises a cause of action against the town, alleging that the Hunter defendants are entitled to statutory indemnification as an assignee pursuant to General Statutes § 7-308 and/or § 7-101a. The Hunter defendants also raise two cross claims against Infinity, which are not at issue in the present matter before the court. On July 3, 2006, LaJoie also filed a cross claim against the town, alleging that LaJoie is entitled to indemnification by the town of Prospect pursuant to General Statutes § 7-101A and/or § 7-308.

In count one of the counterclaim, the Hunter defendants allege that AAIC is liable to pay the offer of judgment interest on one or more of the following grounds: (a) Obligated to pay as a supplemental payment under the AAIC policy; (b) By choosing not to settle within policy limits, AAIC exposed LaJoie to personal liability for the settlement. AAIC acted negligently and breached the duty of care owed to LaJoie, thereby incurring obligation to pay; and (c) AAIC is estopped from denying its obligation to pay on behalf of LaJoie. Count two the counterclaim against AAIC alleges a breach of contract by AAIC, brought by the Hunter defendants as third-party beneficiaries under the AAIC policy in the role of a judgment creditor of LaJoie.

Infinity is the insurer of the motor vehicle LaJoie was driving at the time of the accident. In count six of the second amended cross claims, the Hunter defendants allege that "pursuant to Connecticut General Statutes § 38a-321, [the Hunters] are subrogated to all the rights of Shawn P. LaJoie against Infinity, and have a right of action directly against Infinity to the same extent that Mr. LaJoie could have enforced his claim against Infinity had he paid in full the judgment in the Underlying Suit himself." In count seven, the Hunter defendants also allege that Infinity is liable for breach of contract and duty of good faith to the Hunters as third-party beneficiaries of the Infinity policy.

On August 3, 2006, the Hunter defendants filed a motion for summary judgment for count one of the Hunter cross claim against St. Paul, accompanied by a memorandum of law and documentary evidence. On September 28, 2006, St. Paul filed a memorandum in opposition to the motion for summary judgment, also accompanied by substantial documentary evidence. Shortly thereafter, on October 11, 2006, St. Paul filed its own motion for summary judgment on counts one, two, three and four of the Hunter defendants' second amended cross claim. The motion was accompanied by a supporting memorandum of law and documentary evidence. On October 26, 2006, the town filed a motion for summary judgment on count five of the Hunter defendants' cross claim and on the cross claim filed against the town by LaJoie.

On December 27, 2006, the Hunter defendants filed an omnibus memorandum of law in opposition to St. Paul's and the town's motions for summary judgment and in further support of its own motion for summary judgment against St. Paul. The memorandum was accompanied by extensive documentary evidence. Oral argument on the pending motions for summary judgment was heard at short calendar on January 2, 2007. Prior to argument, both the town and St. Paul submitted additional memorandums in support of their respective positions. The town filed a supplemental memorandum of law in support of its cross motion for summary judgment, adopting the arguments set forth in St. Paul's motion for summary judgment on the Hunter defendant's cross claim, and the accompanying memorandum. St. Paul filed a reply to the Hunter's opposition to St. Paul's cross motion for summary judgment, at this time as well.

In light of the arguments presented at short calendar, and at the request of the court, the parties submitted additional briefs in support of their respective motions.

DISCUSSION

As set forth above, several motions for summary judgment are presently pending before the court. "[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. "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." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (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). "[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 the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

"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 non-moving 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 such 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).

A. Present Case

The present matter before the court involves several different motions for summary judgment. The court will address each count of the cross claim that is the subject of a pending motion for summary judgment, in turn.

1. Count one of the cross claim

In the present case, two motions for summary judgment on count one of the cross claim have been filed, one by the cross claim plaintiffs, the Hunter defendants, and one by the cross claim defendant, St. Paul. Both parties concede that there are no material facts at issue and each argue that they are entitled to judgment as a matter of law on their respective motions.

The court first addresses count one of the Hunter defendant's cross claim. The Hunter defendants allege the following: "As a volunteer fireman engaged in fire duties for the Town of Prospect, Shawn LaJoie was covered as an insured under a liability insurance policy issued by St. Paul to the Town of Prospect . . . at the time of the collision that killed plaintiff's decedent." The Hunter defendants further allege that pursuant to General Statutes § 38a-321, they are subrogees of LaJoie's rights as an insured under the St. Paul policy and St. Paul is, therefore, liable for the full unpaid amount of the judgment in the underlying suit of Hunter v. LaJoie. The Hunter defendants then moved for summary judgment as to count one of their cross claim against St. Paul. In support of the motion, the Hunter defendants argue that the St. Paul insurance policy clearly extends coverage to LaJoie as a firefighter in the town of Prospect. Therefore, according to the terms of the policy, the Hunter defendants argue that they are entitled to judgment as a matter of law on count one.

Section 38a-321 provides in relevant part: "Upon the recovery of a final judgment against any person, firm or corporation by any person . . . for loss or damage on account of bodily injury . . . if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."

St. Paul filed a memorandum in opposition to the Hunter defendants' motion for partial summary judgment, and then filed its own motion for summary judgment on counts one through four of the cross claim. Regarding count one, St. Paul argues that the Hunter defendants are collaterally estopped from relitigating the issue of LaJoie as a volunteer of the town because that issue has been previously litigated, and decided, in the underlying action. In the alternative, St. Paul also argues that even in the absence of collateral estoppel, LaJoie would not be entitled to coverage under the express terms of the policy.

a. Collateral Estoppel effect of underlying action

"The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." (Internal quotation marks omitted.) Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). "[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim." (Internal quotation marks omitted.) Albahary v. Bristol, 276 Conn. 426, 444, 886 A.2d 802 (2005). "For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." Lafayette v. General Dynamics Corp./Electrical Boat Division, 255 Conn. 762, 772, 770 A.2d 1 (2001). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.

. . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 773. "In determining whether privity exits, [the court] employ[s] an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 462 n. 5, 897 A.2d 136 (2006). See also Mount Vernon Fire Ins. Co. v. Morris, 281 Conn. 544 (2007).

In Hunter v. LaJoie, the underlying action to the present case, William Hunter, in his personal, as well as administrator capacity, brought an action against numerous defendants for the damages arising out of the accident resulting in his wife's death. In his complaint, Hunter alleged, inter alia, a claim for statutory indemnification by the town for any liability assessed against LaJoie pursuant to General Statutes § 7-308. In response, the town filed a motion for summary judgment on that count, alleging that there is no genuine issue regarding the fact that LaJoie is not an employee of the town, and, therefore, the town has no duty to indemnify LaJoie in these circumstances.

This court, Blue, J., decided the motion for summary judgment in favor of the town. See Hunter v. LaJoie, Superior Court, judicial district of New Haven, Docket No. CV 02 0460386 (July 7, 2004, Blue, J.) [37 Conn. L. Rptr. 439]. The court stated: "There is no question, for purposes of this motion, that the VFDP is responsible under § 7-308(b) for damages caused by LaJoie while negligently performing fire duties. The question presented is whether the Town is additionally responsible for such damages under the same subsection." Id. After an analysis of the statutory interpretation of § 7-308, and relevant case law, the court made the following finding: "The text of § 7-308(b) imposes liability upon a municipality only for the acts of a fireman `of such municipality.' . . . The evidence establishes that LaJoie was not a firefighter `of' the Town. He was, instead, a firefighter `of' the VFDP." Id. The court goes on to discuss the arguments offered by Hunter in opposition to the motion for summary judgment. The court acknowledged the existence of the argument that the town is liable for the acts of LaJoie under principles of agency, but does not ultimately address the merits of this argument because Hunter had failed to raise the issue in his complaint. The motion for summary judgment was solely decided on the basis of liability under § 7-308.

In the present case, the Hunter defendants, as assignees of LaJoie, assert that LaJoie was an insured under the express terms of the St. Paul policy and that LaJoie is entitled to indemnification under the express terms of the policy. They assert that this issue was not litigated in the underlying action. The issue decided by this court, Blue J., in the underlying action of Hunter v. LaJoie, was whether under the terms of § 7-308a, LaJoie was a volunteer of the town or a volunteer of the VFDP. The court's analysis focused on the statutory indemnification scheme but not on the express terms of the St. Paul policy. While the court did determine the right to statutory indemnification, it did not determine LaJoie's right to coverage under the town's policy.

As the assignees of LaJoie the Hunter defendants currently stand in the shoes of LaJoie. At the time that the underlying action and motion was decided by Judge Blue, LaJoie interests and those of the Hunters were in conflict. Liability and damages were contested and no judgment was in existence. Furthermore, the issue decided by the court was not whether a right to indemnification existed, but rather whether a particular party was required by statute to indemnify LaJoie under the asserted theories of liability. It was not necessary for the court to address the scope or language of the town's insurance policy. Although LaJoie has since assigned his interests to the Hunter defendants, the issues raised in the current action differs from the issues litigated in the underlying action.

St. Paul did not seek, as it could have, a declaratory judgment on its obligations to defend or indemnify LaJoie under the terms of its policy of insurance. Instead, St. Paul asserted arguments based upon the narrower claim of statutory indemnification. At the time of the Motion for Summary Judgment LaJoie was contesting the entry of any monetary judgment at all based upon issues of liability. In fact, Mrs. Hunter was found to be twenty-five percent contributorily negligent. LaJoie was covered by the VFPD and his own automobile insurance policy. The court finds that the issue of coverage has not been fully and fairly decided in the underlying action, and the Hunter defendants are not collaterally estopped from litigating this issue in the present case. The scope of the indemnification obligation created by the express language of the St. Paul policy was not actually litigated nor necessarily decided.

b. Coverage under the policy

St. Paul and the Hunter defendants also dispute the existence of coverage for LaJoie under the terms of the policy. Both parties agree that LaJoie, a volunteer of the VFDP, was responding to a fire when the collision occurred. Neither party presents arguments relating to or contesting the damages determined in the underlying trial.

Both parties present extensive evidence to establish the connection, or lack thereof, that exists between the VFDP and the town. Arguably, that degree of the connection demonstrates whether LaJoie was acting as a volunteer under the policy, thereby entitling him to coverage. However, it is the terms of the policy itself that delimit the extent of coverage intended by the parties. Therefore, the court must first look to the four corners of the insurance policy to determine whether LaJoie is a covered insured under the St. Paul policy.

"[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 . . . 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 . . . 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).

In their motion for summary judgment, the Hunter defendants allege that the insurance policy at issue provides coverage to LaJoie for liability he incurred to the Hunter defendants while fulfilling his volunteer firefighting duties for the town, and accordingly, the Hunter defendants are entitled to judgment as a matter of law. In response, St. Paul argues that by the express terms of its policy with the town, LaJoie is not entitled to coverage as a volunteer fire fighter because he was not acting as a volunteer of the town, performing duties assigned to him by the town and using his vehicle to conduct town business. St. Paul repeats this argument in support of its motion for summary judgment on the first cross claim.

It is the Hunter defendants' position that firefighting is a covered activity under the St. Paul policy, and LaJoie, acting in the scope of his duties as a firefighter for the town is a covered insured under the policy. "[T]he VFDP provides fire services to the Town of Prospect on a volunteer basis, and thus the VFDP — and all of its members — are `volunteers' covered under the St. Paul policy." The Hunter defendants refer to the policy language itself to establish that LaJoie was an insured under the St. Paul policy. The policy expressly extends coverage to "[a]ny volunteer . . . but only for acts within the scope of duties assigned by you . . ." While this description does not specifically include firefighting, the Hunter defendants argue that the policy language indicates that firefighting was intended to be included as a service provided to the town due to the existence of other provisions that specifically relate to firefighting. For example, the policy expressly provides coverage to "[t]he owner of a commandeered auto while the commandeered auto is in your temporary care, custody or control. A commandeered auto is an auto that you commandeer, or take with or without permission, for the purpose of performing emergency operations, such as firefighting or law enforcement activities." (Emphasis added.) The policy also extends coverage to the town's mobile equipment, which the policy defines to include "equipment designed primarily for . . . fire fighting . . ." These provisions provide the basis of the Hunter defendants' argument that LaJoie is entitled to coverage under the St. Paul policy.

Although not specifically referred to by the Hunter defendants, the St. Paul policy also contains an exclusion from property coverage for "loss to tape decks or other sound reproduction equipment not permanently installed in a `covered automobile,' however, this exclusion does not apply to any equipment that is installed in a `covered automobile' which is (1) owned or operated by your police or fire department or ambulance corps . . ."

St. Paul also refers to the express language of the policy as support for its argument that LaJoie, as a firefighter, is not entitled to coverage. St. Paul argues that the Hunter defendant's argument "is inconsistent with the express and unambiguous terms of the St. Paul policy." St. Paul asserts that "by its express terms, the St. Paul policy limits the coverage afforded to volunteers of the named insured, the Town, to circumstances in which the volunteer is performing duties assigned to him by the named insured and conducting the named insured's business." This is the same provision of the policy that was previously cited by the Hunter defendants in support of their position. St. Paul, however, finds the ending of the sentence to be of particular relevance. "Any volunteer . . . but only for acts within the scope of duties assigned by you . . ." (Emphasis added). Thus, St. Paul argues that LaJoie was not working within the scope of duties assigned by the town, because his duties were assigned by the VFPD, an independent entity.

In further support of its argument, St. Paul also cites to the provision entitled "Coverage Agreement," which states: "We will pay on behalf of the insured all sums that the insured becomes legally obligated to pay because of "bodily injury . . . resulting from the ownership, maintenance or use . . . of a covered auto." A covered auto is defined in the policy to include a "non-owned auto," which is defined as "only those `autos' you do not own, lease, hire or borrow which are used in connection with your business. This includes `autos' owned by: (1) Your employees; (2) Volunteers; or (3) Members of their household." St. Paul emphasizes the portion of the provision that specifically states coverage only extends to autos "used in connection with your business" and argues that the policy cannot be interpreted to extend coverage to LaJoie because he was engaged in the business of the VFDP at the time of the accident, not the business of the town.

It is undisputed that LaJoie was acting in a volunteer capacity for the VFDP, however, this status does not preclude the conclusion that the VFDP, itself acted as a volunteer of the town. As St. Paul correctly states, the policy is only intended to cover volunteers engaged in activities assigned by the town. However, St. Paul fails to demonstrate that the VFDP is not considered a volunteer of the town under the policy. Although firefighting is not specifically covered in the policy, a reasonable person could only conclude that firefighting is included in the terms of the policy because of policy provisions indirectly providing coverage to certain firefighting activities and equipment.

Of particular relevance to this conclusion is the provision that a vehicle commandeered for firefighting purposes is considered to be within the control of the town and is entitled to coverage under the policy. It stands to reason that the town would not accept responsibility for vehicles commandeered for firefighting purposes if the duty of firefighting was not itself intended to fall within the scope of the policy. While the policy is specifically limited to volunteer duties assigned by the town, the policy does not unambiguously describe what activities this is intended to include. Furthermore, although firefighting is not expressly covered under the policy, any ambiguity that arises must be resolved against St. Paul and in favor of coverage. St. Paul's could have articulated a specific policy exclusion for the VFDP or its volunteers. It did not.

Consequently, this court finds that St. Paul has not met its burden under summary judgment to establish that the terms of the policy do not extend coverage to a firefighter acting in the scope of his duties. There is no genuine issue of material fact that the terms of the policy extend coverage to a volunteer of the town, who is using a family member's car to perform an act within the scope of his duties as a town volunteer. Thus, LaJoie is entitled to coverage.

The court's conclusion is further reinforced by the facts surrounding the relationship between the town and the VFDP. While both parties present extensive evidence to establish the degree of connection between the town and the VFDP, the court is not persuaded by St. Paul's arguments that the VFDP was wholly independent of the town. As discussed below, the evidence indicates otherwise.

The Hunter defendants argue that sufficient evidence exists to demonstrate that the VFDP was performing a volunteer function for the town. Article two of the VFDP's Articles of Incorporation state the following: "The purposes for which said corporation [the VFDP] is formed are the following, to wit: To answer all fire alarms in the town of Prospect. To extinguish fires in the town of Prospect. To render any and all services to the community which would ordinarily come under the obligations of such group." The Hunter defendants concede that the VFDP has an independent corporate status, and is entitled to control its own internal affairs, however, they argue that the town exercises "complete de facto control over the VFDP for all practical purposes." To demonstrate this de facto control, the Hunter defendants submit the certified deposition of Robert Chatfield, the town mayor and Fire Chief The deposition testimony establishes that the town owns the fire station and several of the fire trucks and permits the VFDP to use the facilities and equipment. Due to the rising cost of the equipment, it has become custom for town to purchase the equipment needed, and the VFDP to operate and maintain the equipment. The purchase of the equipment is approved by the town council. In addition, Chatfield testified and proffered exhibits demonstrate that the town provides seventy to eighty percent of the VFDP's annual budget and must approve the amount requested after reviewing the annual reports. The evidence submitted demonstrates the significant financial involvement of the town in VFDP operations, despite the independent corporate status.

In opposition, St. Paul argues that the statutory scheme relating to a town's duty to provide fire services indicate that the town has exercised one of four valid alternatives regarding the provision of fire services by opting to not exercise its authority to operate and control a fire department. St. Paul offers the town charter to establish this point: "The Volunteer Fire Department shall continue to function with members making their own rules and bylaws, electing their Chief and other officers and members, and otherwise controlling their own affairs."

To demonstrate its lack of control over the VFDP, the town submits the certified affidavit of Chatfield, to demonstrate that the VFDP purchases its own insurance coverage, and does not rely on the town to provide liability coverage. St. Paul, thus, opposes the Hunter defendants' argument that the VFDP was assigned the duty to provide fire services to the town.

The court is not persuaded by St. Paul's arguments of complete separation between the two entities. The town's involvement with the VFDP's operations demonstrates that LaJoie as a volunteer of the VFDP, was a volunteer for the town while acting within the scope of his duties as a volunteer firefighter, as the term "volunteer" is used within the St. Paul policy. The reality is that the VFDP is a volunteer entity that provides an essential municipal service to the Town of Prospect and exists solely for that function. Furthermore. the VFDP would not be able to provide its services without the Town's financial support. The Town, by its financial support, has assigned to a group of volunteers the duty of providing fire protection and other emergency services with the Town and for the benefit of the Town's residents.

For all of the above reasons, the Hunter defendant's motion for summary judgment on count one of its cross claim is granted and St. Paul's motion for summary judgment is denied.

2. Counts two, three and four of Hunter defendants' cross claim

St. Paul argues that it is entitled to summary judgment on counts two, three and four of the Hunter defendants' cross claim because LaJoie is not entitled to coverage under the policy, and, therefore, the allegations of these counts are not applicable to St. Paul. As previously discussed, however, St. Paul has not satisfied its burden under summary judgment to establish that a material issue of fact does not exist concerning LaJoie's lack of status as an insured under the policy. Any ambiguity in the policy relating to the definition of "volunteer activities assigned by the town" is construed against St. Paul as the insurer. For this reason, summary judgment in favor of St. Paul is denied for counts two, three and four of the Hunter defendants' cross claim.

3. Count five of the Hunter defendants' cross claim

Count five of the Hunter defendant's cross claim raises allegations against the town. The count alleges that pursuant to § 7-308 and § 7-101a, the town is obligated to indemnify LaJoie and pay all sums that LaJoie is obligated to pay as a result of the underlying action. The Hunter defendants allege that they are entitled to these payments because LaJoie has contractually assigned to Hunter any causes of action that he may have for indemnification against the town. In response, the town filed a motion for summary judgment on count five of the amended counterclaim and cross claims, alleging that the Hunter defendants are collaterally estopped from relitigating the issue of whether LaJoie is an employee of the town and are also barred, on the basis of res judicata, from relitigating their § 7-308 and § 7-101a claims.

As discussed above, this court, Blue J., directly addressed the issue of statutory indemnification under § 7-308 in the underlying action of Hunter v. LaJoie. The Hunter defendants argue that count five of their cross claim is not precluded by the prior action because they stand in LaJoie's shoes as a subrogee, and LaJoie did not litigate this issue in the underlying action. "A valid assignment transfers to the assignee exclusive ownership of all of the assignor's rights to the subject assigned and extinguishes all of those rights in the assignor. Bouchard v. People's Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991)." Mall v. LaBow, 33 Conn.App. 359, 362, 635 A.2d 871 (1993)

In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 230-31, 828 A.2d 64 (2003), the Supreme Court discussed the existence of privity between an assignee and an assignor of a chose in action. Several employees had assigned their claim for collection of unpaid wages against their employer to the state department of labor. While the court's analysis focused on the type of assignment made, it did state that "[w]hen an assignment is for collection only, the assignor and assignee are in privity with each other." Id., 230-31. The assignee in that situation cannot relitigate claims brought previously by the assignor. Id., 230.

The present case differs from Schoonmaker in that the town is asserting collateral estoppel to prevent the assignee from relitigating a claim that had been litigated by the assignee before the assignment from the assignor. However, it still provides direction to the present case. The claim for LaJoie's right to statutory indemnification was raised in the previous action by the Hunter defendants, and was fully, fairly and necessarily litigated between the Hunters and the Town at that time. Count three, the subject of the town's motion for summary judgment in the underlying action, alleged that, "Pursuant to Section 7-308 of the General Statutes, the defendant Town of Prospect is liable for indemnification of any liability assessed against Shawn P. LaJoie in this case, including any damages assessed under Counts One and Two." Hunter v. LaJoie, Superior Court, judicial district of New Haven, Docket No. CV 460386 (July 7, 2004, Blue, J.). The Town's obligation to indemnify LaJoie, from its own assets in the event the Town's insurance coverage was inadequate, was fully, fairly and necessarily litigated and decided in the underlying action. For this reason, the Hunter defendants are precluded from relitigating the claim for statutory indemnification. The town's motion for summary judgment on count five of the cross claim is thereby granted.