Opinion
No. CV02 39 67 60 S
September 17, 2003
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. Facts of the Case
This is a declaratory judgment action brought by the plaintiff, Middlesex Mutual Assurance Company [hereinafter Middlesex] to determine a question of insurance coverage. Middlesex insured the defendants Bernard and Mary Ellen Favreau and their minor son, Christopher. Through a motion for summary judgment Middlesex seeks a declaration that it should not have to defend or indenmify the Favreau family in a pending civil action, Jane Doe ppa et al. v. Favreau et al., CV-02-0393019 S (Superior Court for the Judicial District of Fairfield at Bridgeport) [hereafter "underlying action"].
The pertinent facts, as alleged in the instant complaint, are as follows: The defendants, Bernard and Mary Ellen Favreau, together with their minor son Christopher, reside in Fairfield, Connecticut. They are defendants in the underlying action. Middlesex issued a homeowner's insurance policy [hereafter "Middlesex policy"] for the period September 27, 1999 to September 27, 2000. Middlesex also issued an umbrella homeowner's policy [hereafter "umbrella policy"] for the period August 2, 2000 through August 2, 2001.
The underlying action arose from sexual contact with a minor committed by the defendant Christopher Favreau. In Count One, paragraph three of the underlying action the plaintiff, Jane Doe, [hereinafter Jane Doe] alleges that Christopher Favreau "engaged in repeated acts of sexual exploitation, assault, and battery directed against [Jane Doe]." Each subsequent count repeats these basic allegations. In paragraph four of Count One Jane Doe alleges "In committing the foregoing assaults and batteries, [Christopher Favreau] engaged in willful, wanton and malicious conduct." In the Second Count of the underlying action Jane Doe alleges that "In committing the foregoing sexual assaults and batteries, all of which where extreme and outrageous, [Christopher Favreau] intended to CT Page 10878-df inflict, or knew or should have known that his conduct would likely inflict, emotional distress upon [Jane Doe]." In the Third Count of the underlying action Jane Doe alleges that "In committing the foregoing sexual assaults and batteries, [Christopher Favreau] should have realized that his conduct involved an unreasonable risk of causing [Jane Doe] to suffer emotional distress."
The next three counts of the underlying action are directed to the parent-homeowners, Bernard and Mary Ellen Favreau. In Counts Four Five and Six Jane Doe repeats the basic allegations of Count One. In Count Four she further alleges "[Christopher Favreau] was a member of the defendant parents' household when [he] willfully, wantonly, maliciously and intentionally caused the severe personal injuries and losses of [Jane Doe]. In Count Five Jane Doe alleges that the defendant parents were reckless in that they [a] "failed to control the minor defendant so as to prevent him from harming [Jane Doe]" . . . [b] "created and fostered an environment in their home which they knew was likely to instill sexually deviant behavior . . ." . . . [c] "they were aware that [Christopher Favreau] demonstrated sexually deviant behavior . . . but took no care or action to prevent him from harming others . . ." and [d] "recklessly failed to control [Christopher Favreau's] behavior, although they knew that the minor exhibited such behavior and had a propensity to commit sexual assault." In the Sixth Count of her complaint, Jane Doe alleges that the defendant parents are responsible for the "willful and malicious acts" of their unemancipated minor pursuant to Connecticut General Statutes 52-272."
The final four counts of the underlying action, brought on behalf of Jane Doe's father, again repeat the basic allegations contained in Count I. In Count Seven the plaintiff father also alleges that as a result of the "willful, wanton, malicious and intentional conduct of the minor defendant, and the negligent conduct of the defendant parents" the plaintiff father spent money for his daughter's medical care. In Count Eight, the plaintiff father alleges that he witnessed the sexual assault and that [Christopher Favreau] "intended to inflict, or knew or should have known that his conduct would likely inflict . . . emotional distress." In Count Nine the plaintiff father alleges that "[Christopher Favreau] should have realized that his conduct involved an unreasonable risk of causing plaintiff father to suffer emotional distress." In the Tenth and final count, the plaintiff father alleges that the defendant parents are responsible for the "willful and malicious acts" of their unemancipated minor pursuant to Connecticut General Statutes 52-272."
The underlying action relies upon allegations of sexual exploitation, assault and battery. On November 27, 2000 the defendant Christopher CT Page 10878-dg Favreau pled guilty to risk of injury to a minor, Connecticut General Statutes 53-21 and sexual assault in the third degree, Connecticut General Statutes 53a-72a.
Connecticut General Statutes 53-21 provides:
(a) Any person who (1) willfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complied with the provisions of chapter 803, shall be guilty of a class C felony for a violation of subdivision (1) or (3) of this subsection and a class B felony for a violation of subdivision (2) of this subsection.
Although Middlesex referred to 53-72a, Connecticut General Statutes 53a-72a governs sexual assault in the third degree. That statute provides:
(a) A person is guilty of sexual assault in the third degree when such person (1) compel another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person, or (2) engages in sexual intercourse with another person whom the actor knows to be related to him CT Page 10878-dp or her within any of the degrees of kindred specified in section 46b-21.
In the instant declaratory judgment action, Middlesex has alleged multiple bases for denial of coverage. In Counts One and Three, the insurer alleges that the Middlesex policy is limited to "bodily damage" or "property damage" caused by an "occurrence." Middlesex policy, Definitions, page 1, paragraph 1; page 2, paragraph 5. Middlesex further alleges that the Middlesex policy excludes coverage for any bodily injury or property damage "which is expected or intended by the insured." Middlesex policy, Section II, Exclusions, page 16, section a. Further, Middlesex alleges that the Middlesex policy excludes coverage for bodily injury or property damage "arising out of sexual molestation, corporal punishment or physical or mental abuse." Middlesex policy, Section II, Exclusions, page 18, Section k.
The Middlesex policy defines occurrence as "an accident, including repeated or continuous exposure to substantially the same general harmful conditions, which results during the policy period in (a) Bodily injury." The policy defines bodily injury as "bodily harm, sickness or disease."
In Counts II and Four, Middlesex alleges that the umbrella policy is limited to "bodily damage" or "property damage" caused by an "occurrence." Umbrella policy, page 3. It initially alleges that the umbrella policy precludes payment for personal injury involving "any covered person intentionally breaking any law or arising out of any law being broken with your knowledge and consent of any covered person." Umbrella policy, page 4. Middlesex further alleges that the umbrella policy excludes coverage for personal injury claims arising from "actions which are expected or intended by the 'covered person.'" Umbrella policy, page 4. Middlesex finally claims that the umbrella policy excludes coverage for any claims arising from "sexual molestation, corporal punishment, or physical or mental abuse by a 'covered person.'" Umbrella policy, page 5.
The umbrella policy defines personal injury as "bodily harm, sickness or disease." That same policy defines occurrence as "an accident, or series of related accidents that unexpectedly, unintentionally and suddenly causes personal injury during the policy period."
II. Applicable Law
A. Summary Judgment and Declaratory Judgment Actions
Connecticut 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 party seeking summary judgment has the burden of showing the nonexistence of any material fact, 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. Connecticut Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In CT Page 10878-dh deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). 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).
Declaratory judgments are governed by Connecticut General Statutes § 52-29 and Connecticut Practice Book §§ 17-54, 17-55. Trial courts are afforded wide discretion in rendering declaratory judgment. Leoni v. Water Pollution Control Authority, 21 Conn. App. 77, 83, 571 A.2d 153 (1990). A declaratory judgment action, remedial in nature, should be liberally construed. Horton v. Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977); Connecticut Savings Bank v. First National Bank, 133 Conn. 403, 409, 51 A.2d 907 (1947). It is an appropriate method to determine whether an insurer has a duty to defend and indemnify its insured. Saint Paul Fire Marine Ins. Co. v. Shernow, 22 Conn. App. 377, 381, 577 A.2d 1093 (1990). A declaratory judgment action is also an appropriate vehicle to determine whether an insured's acts are intentional ones not covered by liability insurance for accidents. Aetna Casualty Surety Co. v. Murray, 145 Conn. 427, 429, 143 A.2d 646 (1958).
Connecticut General Statutes 52-29 provides:
(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.
The declaration shall have the force of a final judgment.
Connecticut Practice Book Sections 17-54 provides:
The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.
Connecticut Practice Section 17-55 provides:
A declaratory judgment action may be maintained if all of the following conditions have been met:
(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and CT Page 10878-dq
(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.
A court can address the merits of a declaratory judgment action though a motion for summary judgment. Community Action for Greater Middlesex County, Inc. v. American Alliance Insurance Co., 254 Conn. 387, 397-98, 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, 254 Conn. at 395. Similarly, issues concerning insurance coverage are appropriate for summary judgment review. An insurer does not owe a duty to defend its insured simply because the insured has been sued. When an insurer argues that an insurance policy explicitly excludes from its coverage conduct alleged in an action against an insured, either party may file a motion for summary judgment to determine whether the insurer has a duty to defend the insured against the allegations of that complaint. Community Action, 254 Conn. at 397; Conway v. Travelers Casualty, Superior Court Judicial District of Hartford, Docket Number No. 0588119 (Dec. 15, 2000, Rubinow, J.).
B. The Insurer's Duty to Defend
"[T]he principles governing our determination of this issue are well settled. [A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint . . . The obligation CT Page 10878-di of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend." (Internal quotation marks omitted.) Board of Education v. St. Paul Fire Marine Ins. Co., 261 Conn. 37, 40-41, 801 A.2d 752 (2002). "Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Citations omitted; internal quotation marks omitted.) Community Action, 254 Conn. at 399. This court's discretion is limited. "The question of whether an insurer has a duty to defend its insured . . . is to be determined by comparing the allegations of the . . . complaint [in the underlying action] with the terms of the insurance policy." Community Action at 395. "Under Connecticut case law, it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact 'covered.'" (Internal quotations and citations omitted.) Exel Logistics, Inc. v. Maryland Casualty Co., 40 Conn. App. 415, 419, 671 A.2d 408 (1996).
When an insurer moves to determine the scope of its duty to defend an insured, "[t]he burden of proving an exception to a risk is on the insurer." O'Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955). "[T]he insurer has the burden of demonstrating that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and further, that the allegations in toto, are subject to no other interpretation." R.E.O., Inc. v. The Travelers Companies, Superior Court, judicial district of New Haven at New Haven, Docket No. 372522 (May 20, 1998, Silbert, J.), citing, New York v. Amro Realty Corp., 936 F.2d 1420, 1427 (2d Cir. 1991). See also Conway v. Travelers Casualty. The insurer must establish "with a high degree of certainty" that the exclusionary clause applies. Kelly v. Figueriredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). The question of whether the insurer has a duty to defend the insured "is to be determined by comparing the allegations of [the underlying plaintiff's] complaint with the terms of the insurance policy." Community Action, 254 Conn. at 395. Fundamentally, in a case such as this, the court must consider and determine whether the allegations of the underlying plaintiff's complaint CT Page 10878-dj state "a cause of action which appears on its face to be within the terms of the policy coverage." (Internal quotation marks and citations omitted.) Imperial Casualty Indemnity Co. v. State, 246 Conn. 313, 324, 714 A.2d 1230 (1998). See also Community Action, 254 Conn. at 395, 397-98. "The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage . . . If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Internal quotation marks and citations omitted; emphasis added.) Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000); see also Community Action, 254 Conn. at 397-98; Imperial Casualty Indemnity Co., 246 Conn. at 324. "On the other hand, if the [underlying] complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks and citations omitted.) Community Action, 254 Conn. at 399.
C. Exclusions in the Instant Policies
Turning to the insurance policies in the present action, the insurer has presented several arguments in support of its request for summary judgment in this declaratory judgment action.
1. The Instant Insurance Policies Limit Coverage to an Occurrence.
Middlesex argues that the defendant's acts as alleged in the underlying complaint were intentional and, therefore, do not constitute an "occurrence" as defined in the terms of the policy. In opposition, the defendant argues that there is no evidence of intent, a question that should be left for the jury.
The Middlesex policy defines occurrence as "an accident, including repeated or continuous exposure to substantially the same general harmful conditions, which results during the policy period in (a) "Bodily injury." The umbrella policy defines occurrence as "an accident, or series of related accidents that unexpectedly, unintentionally and suddenly causes personal injury during the policy period." The term accident is not defined.
"[P]olicy words must be accorded their ordinary and natural meaning . . . [A]ny ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." (Citations omitted.) Hansen v. Ohio CT Page 10878-dk Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996). "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 . . . It is axiomatic that 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 . . . The policy words must be accorded their natural and ordinary meaning . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy." (Internal quotation marks omitted.) Community Action, 254 Conn. at 399-400.
"[C]onstruction of a contract of insurance presents a question of law . . ." for the court. Travelers Insurance Co. v. Namerow, 257 Conn. 812, 827, 778 A.2d 168 (2001).
The defendant insureds cannot overcome the fact that the underlying action does not contain the requisite allegations of harm. For an "occurrence" there must be "bodily injury" or "personal injury" as those phrases are defined in the insurance contracts. The underlying complaint must indicate a physical manifestation of harm. Stark allegations of sexual conduct, however reprehensible, are not enough. Accordingly, the court finds that under the terms of the policies the underlying complaint fails to allege "occurrence" and, therefore, the defendant's acts fall outside the terms of coverage.
To the extent that Jane Doe and her father allege emotional trauma, emotional distress does not constitute bodily injury as defined in the Middlesex policy. Moore v. Continental Casualty Co., 252 Conn. 405, 413, 746 A.2d 1252 (2000).
Furthermore the underlying action cannot be construed to contain allegations that the events relied upon were accidents. Our Supreme Court has stated that the term accident means of an "unexpected happening." Commercial Contractors Corp. v. American Ins. Co., 152 Conn. 31, 42, 202 A.2d 498 (1964). The term accident ordinarily means an unexpected happening, unintended occurrence or an unforeseen unplanned event or condition. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, 573 A.2d 699 (1990); Commercial Contractors Corporation v. American Ins. Co., 152 Conn. 31, 42, 202 A.2d 498 (1964).
"The sudden and accidental exception exclusion is expressed in the conjunctive. It can only be invoked when the discharges are both sudden and accidental. This is consistent with fundamental contract law that every provision of a contract, including an insurance policy, should be given effect and not disregarded. If sudden were not accorded a temporal meaning, that is, if it were deemed to mean only unexpected, then the word accidental would in essence be rendered superfluous." (Internal quotations and citations omitted.) Covenant Insurance Co. v. Sloat, No. 385786, Superior Court Judicial District of Fairfield at Bridgeport (May CT Page 10878-dl 23, 2003, Levin, J.) ( 34 Conn.L.Rptr. 687).
In the present case neither insurance policy is ambiguous. The allegations of the underlying action cannot be construed to include either bodily harm or an accident. There was nothing sudden or unexpected about the conduct alleged. To the contrary, the underlying action describes a repeated course of conduct. These allegations do not constitute accidental events within the meaning of the policies.
2. The Instant Insurance Policies Preclude Coverage for Intentional Conduct
The court next addresses the plaintiff insurer's argument that the Middlesex policies both exclude intentional conduct. In this regard the case of United Services Automobile Association v. Marburg, 46 Conn. App. 99, 698 A.2d 914 (1997), is instructive. In Marburg the plaintiff insurer sought a declaratory judgment that it had no duty to defend or to indemnify the insured in an underlying action. The underlying action was brought by a minor plaintiff as a result of the insured's sexual abuse of the minor. Our Appellate Court noted "An insured's conduct can be considered unintentional in situations such as those here only if the insured can produce evidence to show that she did not intend to cause the damage. If the insured cannot show that her behavior was unintentional, the presumption of intent remains intact, and the exclusion of the homeowners policy precludes coverage." (internal citations omitted.) Marburg, 46 Conn. App. at 105.
The Marburg court then discussed intent. "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. Also, the intentional state of mind must exist when the act occurs. Thus, intentional conduct extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. Furthermore, it is not essential that the precise injury which was done be the one intended. Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." (Internal quotation marks and citations omitted.) Marburg, 46 Conn. App. at 105-06.
In the present case the defendants have not produced any evidence that Christopher did not intend to cause harm. In support of their opposition to the plaintiff's motion for summary judgment, the defendants Bernard CT Page 10878-dm and Mary Ellen Favreau attached personal affidavits, but neither support a finding that their minor son lacked intent to commit the acts alleged. Thus the defendants cannot sustain their burden of providing an evidentiary foundation to demonstrate a genuine issue of material fact. "It is not enough . . . 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 [in support of a motion for summary judgment] . . . Water Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 143 (1994); Marburg, 46 Conn. at 111. The insurer is allowed to rely on the doctrine of presumption of intent, a rebuttable presumption, to show that the minor insured intended to injure Jane Doe. Marburg, 46 Conn. App. at 111. Absent reliable contrary evidence, the insurer owed no duty to either defend or indemnify.
The fact that Christopher Favreau was a minor at the time of the relevant conduct is also irrelevant. The issue is not whether he intended to harm Jane Doe but rather whether the Jane Doe complaint states facts that bring the injury within the policy coverage. Clearly this complaint does not. Instead each count of the underlying action alleges sexual contact of the minor. The defendant has not offered the court sufficient evidence to rebut the presumption of intent and raise a genuine issue of material fact regarding Christopher Favreau's state of mind.
D. Contrary to Their Labels, All Counts in the Underlying Complaint Refer to Intentional, Not Negligent, Conduct
The defendants insist that several of the allegations refer to negligent rather than intentional conduct. If so, these counts are outside of the parameters of the Marburg decision. Unfortunately for the defendants, as Appellate Court reasoned acts of sexual molestation of a minor are so heinous that an intent to injure on the part of the actor is to be presumed as a matter of law. Marburg, 46 Conn. App. at 110. "The fact that the allegations in [the] complaint are described in terms of 'negligence' is of no consequence. A plaintiff, by describing his or her cat to be a dog, cannot simply by that descriptive designation cause the cat to bark." Middlesex Mutual Assurance Co. v. Rand, Docket No. 76644, Judicial District of Middlesex (April 4, 1996, Stanley, J.) ( 16 Conn.L.Rptr. 414).
Although several counts in the underlying action are titled "negligence," this designation is not determinative. A duty to defend is determined by the facts in the underlying complaint, not the titles assigned to various counts. Nationwide Mutual v. Mazur, Docket No. CT Page 10878-dn 0489231, Superior Court, judicial district of New Britain (June 3, 1999, Robinson, J.). It is the act of the sexual contact and no other circumstance that creates the presumption of intent. The core claim is that the insured molested a minor, which in turn caused the minor harm. The minor plaintiff's harm was necessarily directly caused by the insured's failure to restrain himself from sexually contacting the minor plaintiff, and not by any ancillary failure. The presumption of intent is equally applicable to this claim, and coverage of the claim is properly excluded in accordance with the insurance policy.
4. The Instant Insurance Policies Preclude Coverage for Sexual Misconduct
In both the Middlesex and the umbrella policy there is an exclusion for bodily injury that arises out of sexual molestation. "'[I]t is generally understood that for liability for an accident or an injury to be said to "arise out of" [an occurrence or offense], it is sufficient to show only that the accident or injury "was connected with," "had its origins in," "grew out of," "flowed from," or "was incident to" [that occurrence or offense], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence or offense].' Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975), and cases cited therein. To 'arise' out of means 'to originate from a specified source.' Webster's Third New International Dictionary (1961); see also Black's Law Dictionary (7th Ed. 1999) (defining 'arise' as '1. [t]o originate; to stem [from] . . . 2. [t]o result [from]'). 'The phrase arising out of is usually interpreted as indicat[ing] a causal connection.' (Internal quotations omitted.) The sexual molestation exclusion "precludes coverage for an entire class of risks arising out of specified conduct, and does not turn on the intent of the insured." Covenant, quoting Essex Ins. Co. v. Yi, 795 F. Sup. 319, 324 n. 2 (N.D.Cal. 1992). The underlying action is based totally upon allegations of sexual contact. As a consequence the policy exclusions apply.
5. The Parental Liability Claims Are Precluded in these Policies.
As discussed earlier, both Middlesex policies exclude coverage unless there is bodily damage caused by an occurrence. Intentional conduct and claims arising from sexual molestation are also precluded. For the reasons already stated, Middlesex has no duty to defend those counts directed against the defendant parent. There is an additional count, however, that the parents are liable pursuant to Connecticut General Statutes § 52-572, a vicarious liability statute which makes parents responsible for children's willful or malicious acts, regardless of their own conduct or negligence. LaBonte v. Federal Mutual Ins. Co., CT Page 10878-do 159 Conn. 252, 256, 268 A.2d 663 (1970). However, the defendant parents would not be in court except for their son's conduct. The claims against these parents arise from intentional sexual contact. QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001). The policy exclusions therefore apply.
Connecticut General Statutes 52-572 provides:
(a) The parent or parents or guardian, other than a temporary guardian appointed pursuant to section 45a-622, of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.
(b) This section shall not be construed to relieve the minor or minors from personal liability for the damage or injury.
(c) The liability provided for in this section shall be in addition to and not in lieu of any other liability which may exist at law.
In light of the foregoing, Middlesex does not have a duty to either defend or indemnify the underlying action. The motion for summary judgment is granted.
DEWEY, J.