Opinion
No. CV-03-0829154-S
January 31, 2007
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This is an action brought by the plaintiff, Stephen Clinch, (also hereafter called "Clinch"), against the defendant insurance carrier, Generali-U.S. Branch a/k/a Assicurazioni Generali (also hereafter called "Generali") for said defendant's refusal to defend its insureds in the plaintiff's action against Waterfront Restaurants, Inc., Southern Ties, Inc., Harbor Park Associates, Limited Partnership, all doing business as America's Cup Restaurant in Middletown, Connecticut (hereinafter also "America's Cup"), as well as Uokuni Connecticut, Inc. Ventry, Inc., John O'Callahan, Richard Vasile and Frank Gionfriddo. On March 26, 2003, the court entered judgment in said underlying case in favor of the plaintiff against the defendant's insureds, America's Cup and Frank Gionfriddo, an employee of the defendant's insureds, in the amount of $320,609.85 plus costs in the amount of $674.70. The plaintiff claims that because that judgment was not satisfied within thirty days after its date, the plaintiff became subrogated to all the rights of the defendant's insureds and that the plaintiff now has a right of action against the defendant pursuant to Conn. Gen. Stat. § 38a-321 to recover the judgment entered against the defendant's insureds including costs and the statutory interest due thereon pursuant to Conn. Gen. Stat. § 37-3b. By motion dated February 6, 2006, the plaintiff moved for summary judgment against Generali. By motion dated April 24, 2006, the defendant filed a cross-motion for summary judgment. The parties filed memoranda of law with their motions for summary judgment, opposing memoranda and reply memoranda. This court held a hearing on said motions on January 29, 2007.
FACTS
On or about September 20, 1997 at approximately 12:15 a.m. and for some period of time prior thereto, the plaintiff was a customer and business invitee of the America's Cup. At said time and date America's Cup and its employees carried a general liability insurance policy and a liquor liability insurance policy issued by the defendant. At said time, date and place the plaintiff was confronted inside America's Cup by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside America's Cup by one of these males. After this altercation developed inside America's Cup Restaurant, America's Cup, through its agents, servants or employees, ejected the plaintiff, his companions and the three males from its restaurant into the parking area of same, and the verbal altercation resumed in the parking lot area. The plaintiff was struck in the back of his head causing him to fall and strike his head on the ground suffering further injuries. The lawsuit against America's Cup et al as aforesaid was commenced by complaint dated, July 9, 1999 in two counts. The first count sounded in negligence claiming that the negligence and carelessness of America's Cup, et al, inter-alia, was in failing to maintain the restaurant in a reasonably safe condition, failing to properly protect the plaintiff, failure to properly train its employees' failure to properly supervise and control its restaurant and the parking lot area. The second count sounded in claims of willful, wanton and reckless conduct by America's Cup, their agents, servants or employees. The defendant claims that its refusal to defend its insureds is based upon an exclusion provision in the general liability policy for assault and battery which exclusion reads as follows.
In consideration of the reduced premium charge, it is agreed and understood that this insurance does not apply to bodily injury, or property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.
Furthermore, there is no coverage for assault and/or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.
The liquor liability policy includes similar language in its exclusion.
In consideration of the reduced premium charge, it is agreed and understood that this insurance does not apply to bodily injury, or, property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.
Furthermore, there is no coverage for assault and/or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.
STANDARD OF REVIEW
"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472, A.2d 257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marked omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
ISSUES AND FINDINGS First Count:
The central dispute among the parties is whether or not the allegations in the complaint describe an assault. Plaintiff claims these allegations do not describe an assault, and the defendant claims that they do. The term "assault" has been described in DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594-95 (1985). "A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another." (emphasis added) . . ."We adopt the view of the majority of jurisdictions which have interpreted the word, `assault', in similar contexts. That view is that an `assault' by an insured must be more than a simple assault or more than a negligent infliction of harm; it must be the kind of serious conduct which would justify a victim in using deadly force in self-defense against the insured."
With this definition in mind, it is instructive to review paragraphs 5 and 6 of the first count of the complaint which read as follows
5. On September 20, 1997 at approximately 12:15 a.m., as a direct result of the defendants' failure to maintain its restaurant in a reasonably safe condition, the plaintiff, Stephen Clinch, and two of his companions, were confronted inside the restaurant by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside the defendants' restaurant by one of these males" (emphasis added).
The court concludes that because the allegations describe the three males as being under the influence of alcohol, it is an issue of fact as to whether or not the striking of the plaintiff was intentional. It does not appear to fall within the aforementioned definition of "assault."
6. After this altercation developed inside the defendants' restaurant, the defendants, their agents, servants or employees, ejected the plaintiff, his companions and the three males who were under the influence of alcohol from its restaurant and they thereafter failed to properly protect the plaintiff from the dangers to which he was exposed and thereby caused him to suffer severe and painful injuries and losses in the parking lot of the restaurant, including but not limited to a basal skull fracture, traumatic perforation of his left eardrum, a concussion and significant post-concussive symptoms.
There is no indication in paragraph 6 as to what caused the injuries to the plaintiff. There is no allegation of who, if anyone, struck him. There is nothing in paragraph 6 that can be construed as claiming the plaintiff was assaulted. At the very least, it is an issue of fact as to how the plaintiff was injured.
Because the first count contains issues of fact, summary judgment by either side is not appropriate. Accordingly, the motion for summary judgment by the plaintiff and the cross-motion for summary judgment are denied.
Second Count:
The pertinent paragraph in the second count is paragraph 8 which reads as follows
8. The defendant, Frank Gionfriddo, thereafter, while acting pursuant to the instructions and directions of the defendants . . ., their agents, servants or employees, and while acting in the course of his employment for the defendants . . ., in willful, wanton and reckless disregard of the plaintiff's rights and safety, struck the plaintiff in back of his head (sic) and caused the plaintiff to fall and strike his head on the ground." (Emphasis added.)
This paragraph is more specific as to what happened in the parking lot area than the allegations in the first count. The plaintiff has cited DeWitt v. John Hancock Mutual Life Ins. Co., supra in which the court concluded that ". . . the term `assault' as it appears in this insurance contract is ambiguous, and we reach this conclusion without torturing its ordinary meaning." If there is ambiguity in the insurance policy, it is well settled law that the ambiguity should be construed in favor of the insured because it is the insurance carrier that has written the policy. However, that takes place only where the conclusion is that the term is ambiguous. In Kelly v. Figueiredo, 223 Conn. 31, 35-37, (1992) the Connecticut Supreme Court found the words: "assault" to be unambiguous.
"[T]he insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts . . ." is not ambiguous. "The exclusion clause is not ambiguous." This language is very similar if not identical to the exclusion language in the defendants' insurance policies issued to the insureds in the underlying action. This is not only an opinion by the State Supreme Court, but it is subsequent to the ruling in DeWitt v. John Hancock Mutual Life Ins. Co., supra. Accordingly, this court cannot find that the language in the exclusions in the subject policies is ambiguous. In paragraph 8 of the second count, the language "struck the plaintiff in back of his head (sic)" absent any language that describes that action as being accidental or negligent can only be construed as an assault.
The plaintiff, in oral argument urged the court to accept the ruling in Schurgast v. Schumann, 156 Conn. 471 (1968) for the proposition that if the first count is not excluded by the terms of the insurance policies, then the second count should also not be excluded. However, that is not what Schurgast v. Schumann, says. On page 471, the court states: "Where a complaint in an action against one to whom a policy of liability insurance has been issued states different causes of actions or theories of recovery against the insured, and one such cause is within the coverage of the policy but others may not be within such coverage, the insurer is bound to defend with respect to those which, if proved, are within the coverage." (Emphasis added.)
Accordingly, this court finds that the specific language in paragraph 8 of the second count constitutes an allegation of assault and is, therefore, within the exclusion in the defendant's policies.
Therefore, as to the second count, the plaintiff's motion for summary judgment is denied, and the defendant's cross-motion for summary judgment is granted.