Summary
finding that "[t]he allegations in the second and third count sound in assault and battery, even though they contain allegations of negligence"
Summary of this case from Evanston Insurance Company v. RadcliffOpinion
No. CV00 37 56 00 S
May 20, 2002
MEMORANDUM OF DECISION RE: MOTION TO STRIKE (#107 #113)
The plaintiff Salza commenced an action against defendants Richard and Kathleen Cellar alleging in the first count of the second amended complaint that, as a business invitee of the defendants' establishment, he was intentionally assaulted and beaten by Gosselin, a bartender acting for and on behalf, and within the scope of his employment with, the defendants, and in furtherance of their business.
The plaintiff amended his first amended complaint after the defendants had been allowed to implead their insurance carrier, American Equity Insurance Company (American Equity), into the action as third party defendant. The plaintiffs second amended complaint added a fourth count against American Equity, alleging that American Equity breached its policy with the defendants by refusing to defend and indemnify them. American Equity then filed motions to strike the third party complaint (#107) and the fourth count of the plaintiffs second amended complaint (#113).
The second count, which incorporates the allegations of assault in the first count, alleges negligence and carelessness on the part of the defendants proximately causing said assault in that they failed to: 1) protect Salza from the danger of assault, 2) take reasonable precautions to safeguard persons on the premises, 3) warn Salza, 4) establish measures to protect plaintiff from physical attack, 5) properly train and supervise employees to prevent said assault, and 6) failed to act reasonably prudently under the circumstances.
The third count, which does not incorporate the allegations of assault in the first count, alleges battery caused by Gosselin's negligence and carelessness in that he: 1) failed to control his movements so as not to come into contact, 2) failed to keep his movements from resulting in contact, 3) failed to avoid contact, and 4) unreasonably came into contact, with the plaintiff.
The allegations in the second count contain the word "assault" but the allegations in the third count do not contain the word "battery." Both counts, however, contain allegations of negligent conduct causing the assault (second count) and the battery (third count). The third count, although not using the word "battery" does contain allegations of physical "contact with the plaintiff" that caused injuries. The third count, therefore, sounds in battery despite the fact that it contains allegations of negligent conduct causing the "contact." See Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985) ("In this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently" [internal quotation marks omitted; emphasis added]); seeKrause v. Bridgeport Hospital, 169 Conn. 1, 8-9, 362 A.2d 802 (1975) (same); Alteiri v. Colasso, 168 Conn. 329, 333, 362 A.2d 798 (1975) (same); Russo v. Porga, 141 Conn. 706, 708-09, 109 A.2d 585 (1954) (same).
The fourth count, directed against the third party defendant American Equity, alleges that it issued a commercial general liability insurance policy to the defendants, that the plaintiff was an intended third party beneficiary of that policy, that it provides indemnification for claims of bodily injury arising out of the negligence of defendants' employees, that the plaintiff has alleged that he was injured as a result of the negligence of an employee, and that by refusing to indemnify the defendants, American Equity has breached the contract, and plaintiff has been damaged thereby.
Prior to the inclusion of the fourth count in the second amended complaint, the defendants filed a third party complaint against American Equity, alleging that it issued a commercial general liability insurance policy to the defendants, that it provides coverage for claims by third parties such as the plaintiff for bodily injury sustained as a result of the negligence of defendants' employees, that it has a duty to defend and indemnify the defendants against the claims in the plaintiffs complaint, and that it is obligated to satisfy any judgment in this action against them.
The policy itself has been made part of the pleadings.
American Equity first moves to strike the third party complaint on the ground that the policy has an exclusionary clause that expressly denies coverage for all assault and battery related injuries and that relieves it of any obligation to defend or indemnify the defendants.
The exclusion in the policy states: "ASSAULT AND BATTERY . . . Exclusion a. under COVERAGE A (Section 1) is replaced by the following: [This insurance does not apply to:] a. "Bodily injury" or "property dam age": (1) Expected or intended from the standpoint of any insured; or (2) Arising out of an assault or battery, provoked or unprovoked, or out of any act or omission in connection with prevention or suppression of an assault or battery, committed by any Insured or an employee or agent of the insured."
The exclusion added to COVERAGE B (Section 1) with regard to "personal injury" contains identical language.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 786 A.2d 1256 (2002).
The plaintiff objects to the motion to strike and argues that the allegations in the third party complaint, and in the second and third counts of the second amended complaint, fall within the terms of the insurance policy, because they contain allegations of negligent conduct. The plaintiff argues that the "concept of a negligently inflicted personal injury by physical acts against another, as alleged here, is recognized under Connecticut law." Plaintiffs Memorandum in Opposition to American Equity's Motion to Strike, p. 3 n. 1. The cases on which the plaintiff relies for its argument are those cited in footnote 2, supra. These cases, however, in discussing how an actionable assault or battery may be committed, hold that negligent conduct causing physical contact and injury, as alleged here, constitutes an assault and battery. The allegations in the second and third count sound in assault and battery, even though they contain allegations of negligence.
The negligent conduct is alleged to have caused the assault and battery, as a result of which the plaintiff suffered injuries.
It is noted again that the plaintiff alleges that the negligent conduct caused the assault (second count) and battery (third count).
The defendants' third party complaint alleges that American Equity's policy provides coverage "for claims by third parties for bodily injury sustained as a result of the negligence of the [defendants'] employees." That allegation is, however, irrelevant here, because the plaintiffs second amended complaint clearly sounds in assault and battery.
The facts alleged are consistent with causes of action for assault and battery. The plaintiff alleges that Gosselin intentionally beat the plaintiff, and that he came into physical contact with the plaintiff.
In Kelly v. Figueiredo, 223 Conn. 31, 610 A.2d 1296 (1992), the court considered an exclusion clause with language identical to the one at issue here. The court agreed with the insurer "that the exclusion clause applies to all assaults and batteries." (Emphasis added.) Id., 35. In other words, such an exclusion applies to assaults and batteries caused by intentional, reckless or negligent conduct. See also Axa Global Risks US Ins. Co. v. S.G.S., Superior Court, judicial district of Danbury, Docket No. 337096 (November 15, 2000, Moraghan, J.) (allegations of assault and battery caused by negligence of cafe fall squarely within express assault and battery exclusion); Jeffrey Brothers v. Interstate Fire Casualty Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 421578 (October 19, 1999, Licari, J.) (assault and battery exclusion applies to both claims of active and passive negligence causing assault and battery); Penn-America Ins. Co. v. LTJ Corp., et al, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 468305 (July 23, 1996, Arena, J.) (allegations of assault and battery based on negligent conduct fall within scope of assault and battery exclusion).
The exclusion clause in Kelly v. Figueiredo provided: "[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. . . ." Kelly v. Figueiredo, supra, 223 Conn. 35; compare footnote 3.
In Kelly v. Figueiredo the plaintiff alleged that the defendant had negligently sold alcohol to an intoxicated person, who then committed an assault and battery on the plaintiff. The court held that the assault and battery exclusion "unambiguously relieves [the insurer] of any obligation to defend or indemnify the insured. . . ." Kelly v. Figueiredo, supra, 223 Conn. 36. Just as in the present case, the assault and battery inKelly v. Figueiredo was based on negligent conduct. There, the negligent conduct also amounted to a dram shop claim.
"If the words in the policy are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and 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. . . . We note, further, that a court will not torture words to import ambiguity, where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings. . . . The fact that the parties advocate different meanings of the exclusion clause does not necessitate a conclusion that the language is ambiguous. . . . There is no presumption that language in insurance contracts is inherently ambiguous. Only if the language manifests some ambiguity do we apply the rule that ambiguous insurance contracts are to be construed in favor of insureds and to provide coverage." (Citations omitted; internal quotation marks omitted.) Buell Industries v. Greater New York Mutual Ins., 259 Conn. 527, 545, 791 A.2d 489 (2002).
The exclusion clause at issue in the present case is plain and unambiguous, and it excludes coverage for "bodily injury" . . . "arising out of an assault and battery." as well as for any act or omission in connection with the prevention or suppression of an assault or battery, whether committed intentionally, recklessly or, as alleged in this case, negligently. See Kelly v. Figueiredo, supra, 223 Conn. 35; Jeffrey Brothers v. Interstate Fire Casualty Co., supra, Superior Court, Docket No. 421578.
Accordingly, the allegations in the second amended complaint fall within the scope of the exclusions, and that the motion to strike (#107) the third party complaint is therefore be granted, because American Equity does not have a duty to defend and indemnify the defendants.
"The obligation of the insurer to defend . . . [depends] on whether [the plaintiff] has, in his complaint, stated facts which bring the injury within the coverage. . . . 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. . . . 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 for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398-99, 757 A.2d 387 (2000).
Because the fourth count in the plaintiffs second amended complaint is based on American Equity's alleged duty to defend and indemnify the defendants, as alleged in the defendants' third party complaint, American Equity's Motion to Strike (#113) the fourth count of the plaintiffs second amended complaint is also granted.
___________________ RUSH, J.