848 A.2d 1165 (Conn. 2004), 17111, Allstate Ins. Co. v. Barron

Docket Nº:17111.
Citation:848 A.2d 1165, 269 Conn. 394
Opinion Judge:SULLIVAN, C.J.
Party Name:ALLSTATE INSURANCE COMPANY v. Stephen C. BARRON, Administrator (Estate of Kelly S.), et al.
Attorney:Karen K. Clark, with whom, on the brief, was Richard J. Kenny, Hartford, for the appellant (defendant Frank A. Leone, administrator of the estate of Charles S.)., Kathryn Calibey, Hartford, for the appellant (defendant Frank A. Leone, administrator of the estates of Jennifer S. et al.)., Christop...
Judge Panel:SULLIVAN, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.
Case Date:June 01, 2004
Court:Supreme Court of Connecticut
 
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Page 1165

848 A.2d 1165 (Conn. 2004)

269 Conn. 394

ALLSTATE INSURANCE COMPANY

v.

Stephen C. BARRON, Administrator (Estate of Kelly S.), et al.

No. 17111.

Supreme Court of Connecticut

June 1, 2004.

Argued Feb. 9, 2004.

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[Copyrighted Material Omitted]

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[269 Conn. 396] Karen K. Clark, with whom, on the brief, was Richard J. Kenny, Hartford, for the appellant (defendant Frank A. Leone, administrator of the estate of Charles S.).

Kathryn Calibey, Hartford, for the appellant (defendant Frank A. Leone, administrator of the estates of Jennifer S. et al.).

Christopher M. Vossler, with whom were Alexandria L. Voccio and, on the brief, Philip T. Newbury, Jr., Hartford, for the appellee (plaintiff).

SULLIVAN, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

SULLIVAN, C.J.

The dispositive issue in this appeal is whether the plaintiff, Allstate Insurance Company, had a duty to indemnify its insured under a homeowners' insurance policy issued by the plaintiff to Charles S. and Kelly S. The plaintiff filed this declaratory judgment action against the defendants 1 seeking a determination that it had no such duty. It then filed a motion for summary judgment claiming, inter alia, that there was no genuine issue of material fact as to whether the insured's conduct was intentional within the meaning of the policy's intentional conduct exclusion clause. The [269 Conn. 397] trial court granted the motion and rendered summary judgment in favor of the plaintiff. The defendants then filed this appeal claiming that the trial court improperly determined that there was no genuine issue of material fact as to

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the insured's state of mind. 2 We agree with the defendants and, accordingly, reverse the judgment of the trial court.

The horrific events underlying this case were set forth by this court in In re Joshua S., 260 Conn. 182, 796 A.2d 1141 (2002). "During the early morning hours of June 10, 1999, Kelly S., a woman with a long history of psychiatric problems, stabbed to death her husband, Charles S., in the bedroom of their East Hartford home. Awakened by the screams of Charles S., Kelly S.' then nine year old daughter, Jessica M., ran into the same bedroom, where Kelly S. then began to stab her repeatedly. Jessica M. ran from the bedroom and down the hall, while being pursued by Kelly S. Kelly S. then doused herself, Jessica M. and a bedroom with gasoline, and set the house on fire. Kelly S.... as well as two of [her and Charles S.' children] Jennifer S., nearly three years old, and Jonah S., one and one-half years old, died in the conflagration. Their son, Joshua S., then two months old, survived." Id., at 185-86, 796 A.2d 1141. Jessica M. fled from the house and also survived. Id., at 186, 796 A.2d 1141.

Separate wrongful death actions against the estate of Kelly S. (Kelly) were filed by Frank A. Leone, the administrator of the estates of Jennifer S. and Jonah S. and Frank A. Leone, the administrator of the estate of Charles S. The complaints in both actions alleged that the deaths had resulted from Kelly's negligent or reckless conduct. They also alleged that her mental capacity was severely impaired at the time of the incident. On [269 Conn. 398] October 30, 2001, the plaintiff, which had issued a homeowner's insurance policy to Kelly and Charles S., initiated this action seeking a declaratory judgment that it had no duty to defend 3 or to indemnify Kelly's estate because: (1) the incident was not an "occurrence" within the meaning of the policy; and (2) the policy's exclusions relating to intentional or criminal acts applied to Kelly's conduct. 4 The defendants filed counterclaims seeking a declaratory judgment that the plaintiff had a duty to defend and indemnify Kelly's estate for their claims.

On April 24, 2002, the plaintiff filed a motion for summary judgment in which it claimed, inter alia, that there was no genuine issue of material fact that Kelly's conduct fell within the policy exclusion barring coverage for bodily injury that was intended or that reasonably could have been expected to result from the intentional or criminal acts or omissions of the insured. In support of its motion, the plaintiff relied on the allegations in the defendants' complaints in the underlying cases describing Kelly's conduct on the morning of June 10, 1999. The plaintiff also attached to its motion a copy of the insurance policy and the official death certificates from the office of the chief medical examiner for Charles S., Jonah S. and Jennifer S. indicating

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that the [269 Conn. 399] manner of death for each of the decedents had been homicide.

The defendants objected to the motion for summary judgment. In support of their argument that there was a genuine issue of material fact as to whether Kelly's conduct had been intentional, the defendants presented to the court the transcript of the deposition of Ann H. Kazarian, Kelly's treating psychiatrist. Kazarian testified that she treated Kelly from April 27, 1998, through July 2, 1998. At her first office visit, Kelly appeared to be depressed and reported being anxious. Kelly stated that, since high school, 5 she had had mood problems. Her symptoms included a pounding heart, anxiety, confusion, difficulty getting things done and a sense of being overwhelmed. She stated to Kazarian that "[t]he baby 6 is gorgeous. I force myself to smile. He smiles back, but I can't feel it." Kelly also described her husband as "a beautiful husband" and maintained that he was very supportive of her.

Kelly told Kazarian that she had been suicidal at times and that she had been hospitalized in 1994 after taking an overdose of Xanax. During the 1994 episode, Kelly had refused to take the medications prescribed to treat her depression. She had been hospitalized again in 1995 when she had developed a desire to hang herself.

Kazarian's initial impression of Kelly was that she was severely depressed but not psychotic. She made a diagnosis of "recurrent major depression, severe." Kazarian prescribed Prozac to treat the condition. Kelly called the next day, April 28, 1998, and informed Kazarian that she had thrown the prescription away because she was nursing a baby and her husband was concerned about the effect that the medication would have on the baby. Kazarian warned Kelly about the [269 Conn. 400] potential seriousness of her condition, especially in the postpartum period, and the likelihood that her depression and anxiety would recur. She authorized the pharmacy to refill the prescription. Kelly called Kazarian on May 4, 1998, however, and told her that, after obtaining the medication, she had thrown it away. Kelly also indicated that she was not doing well and had now decided that she would stop nursing and take the medication.

Kazarian saw Kelly again on May 5, 1998, and determined that her severe depression was worsening. She was more helpless, more hopeless, more anxious, not sleeping and unable to get things done. Kelly denied that she was suicidal at that time, but Kazarian was concerned that suicidal impulses might appear suddenly because her condition was changing rapidly and she had a history of impulsive decisions. Kazarian also knew that Kelly had had previous episodes of depression and that a person who has had three discrete episodes of serious depression has a 95 percent chance of experiencing additional episodes. In addition, Kazarian knew that Kelly previously had suffered from severe postpartum depression. She testified that, after one such episode, the likelihood of recurrence is "very, very, very high." Kazarian did not know at that time whether Kelly had had discrete episodes of depression or chronic depression, but the long-term prognosis was poor in either case. Kazarian prescribed additional medications and gave Kelly a list of persons to call if her suicidal impulses recurred.

Kazarian saw Kelly again on May 11, 1998. Kelly had been taking the medications, but had had a "terrible week." Kazarian prescribed additional medications

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and recommended that Kelly be hospitalized. She refused. On the evening of May 12, Kelly took an overdose of a variety of medications. She was found the next morning and admitted to a hospital. After Kelly was hospitalized, Kazarian determined that Kelly's moods swung from [269 Conn. 401] depressed to hypomanic 7 and revised her diagnosis to "bipolar 2." She believed at that time that Kelly had a lifelong illness and that the frequency and severity of her periods of depressions were likely to increase over time. Kazarian spoke to Kelly's husband by telephone while Kelly was hospitalized and told him that she was concerned about the safety of their children because, in postpartum mood disorders, there is a known increased risk of infanticide. When Kazarian received the hospital's discharge summary several weeks later, she noted on it that she had changed the diagnosis to bipolar disorder, that Kelly had a history of noncompliance in taking medications and that, at the time of Kelly's hospitalization, her insight and judgment had been severely impaired.

Kelly was discharged from the hospital on May 20, 1998. She called Kazarian the next day and indicated that she was taking the medications that had been prescribed. Kelly denied at that time that she was suicidal, but Kazarian believed that she was still a definite suicide risk.

Kazarian saw Kelly again on June 2, 1998. At that time, she increased Kelly's medications because "she was still so stressed." On July 2, 1998, Kelly had another office visit and reported that she had stopped taking the medications. She stated that she now believed that her illness was the result of sin and that, if she followed the teachings of the Bible, she would recover. Kazarian told her...

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