Allstate Ins. Co. v. Wilson, Civil No. 3:12cv1398 (JBA).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: JANET BOND ARTERTON
• Citation: 18 F.Supp.3d 156
• Parties: ALLSTATE INSURANCE CO., Plaintiff, v. Danielle WILSON, PPA T.W. and Renae Van Dell, PPA T.V., Defendants.
• Docket Number: Civil No. 3:12cv1398 (JBA).
• Decision Date: 30 April 2014

18 F.Supp.3d 156

ALLSTATE INSURANCE CO., Plaintiff,
v.
Danielle WILSON, PPA T.W. and Renae Van Dell, PPA T.V., Defendants.

Civil No. 3:12cv1398 (JBA).

United States District Court, D. Connecticut.

Signed April 30, 2014

Motion granted.

[18 F.Supp.3d 158]

Christopher M. Vossler, Daniel G. Lydecker, Howd & Ludorf, Hartford, CT, for Plaintiff.

Danielle Wilson, Madison, CT, pro se.

Renae Van Dell, New Haven, CT, pro se.
Matthew E. Auger, Ryan Walid Jaziri, Suisman, Shapiro, Wool, Brennan Gray & Greenberg, P.C., New London, CT, for Defendants.
RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
JANET BOND ARTERTON, District Judge.

Plaintiff Allstate Insurance Company (“Allstate”) moves [Doc. # 44] for summary judgment on its Complaint [Doc. # 1], seeking a declaratory judgment that it owes no duty to defend or indemnify Defendants Danielle Wilson, parent and next friend of the minor T.V., and Renae Van Dell, parent and next friend of minor T.W., in a lawsuit alleging sexual assault filed against them by Intervenor Jane Doe, parent and next friend of minor Mary Doe, in Superior Court for the Judicial District of New Haven (the “ Doe Lawsuit” or “ Doe Complaint”).¹

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I. Facts

The Doe Complaint alleges that during a 2009 New Year's Eve party a group of minor boys, including T.V. and T.W., sexually assaulted their longtime friend, Mary Doe.² ( Doe Complaint, State Docket No. NNH–CV–12–5034145–S, Ex. A to Intervenor's Opp'n [Doc. # 47] ¶¶ 23–50.) Mary Doe had consumed alcohol and was “feeling [its] intoxicating effects.” ( Id. ¶¶ 19, 27.) During the party, T.V. pulled up Mary Doe's dress without her consent, restrained her, assisted other males in sexually assaulting her, and forcibly touched her genitals. ( Id. Count 18 ¶ 57.) T.W. is alleged to have also forcibly restrained Doe, assisted other males in sexually assaulting her, forcibly touched her, and conducted oral sex. ( Id. Count 18 ¶ 57(e); Count 22 ¶ 57(d).) The Doe Complaint also asserts claims for negligence, alleging that T.V. and T.W. both “[f]ailed to assist Plaintiff, who considered [them friends], when she became obviously intoxicated.” ( Id. § 23 ¶ 57(e).)

The Doe Complaint states claims against T.V. and T.W. for false imprisonment (Counts One and Four), sexual assault (Counts Seven and Nine), negligent infliction of emotional distress (Counts Eighteen and Twenty–Two), intentional infliction of emotional distress (Counts Twenty–Four and Twenty–Eight), and civil conspiracy (Counts Thirty, Thirty–Two, and Thirty–Five).

The parents of T.V. and T.W. have both requested that Allstate defend them in the Doe Lawsuit pursuant to the terms of their respective homeowners' insurance policies, which are both identical in their terms. (Ins. Pol., Exs. A1 and A2 to Pl.'s Loc. R. 56(a)1 Stmt. [Doc. # 44–1] ¶ 11.) Allstate is currently providing legal defense to Defendants under a full reservation of its rights under the terms of each policy. (Pl.'s Mem. Supp. [Doc. # 44–2] at 10.) Allstate asserts, however, that it is not required to defend or indemnify under the terms of each policy, because (1) the facts of the Doe Lawsuit do not give rise to an “occurrence,” (2) there was no “bodily injury” arising out of an “occurrence,” and (3) the exclusions for “intentional and criminal” acts applies. (Pl.'s Mem. Supp. at 1–2.)

II. Discussion ³

“Under Connecticut law, it is well established that a liability insurer has a duty to defend its insured if the pleadings” against the insured “allege a covered

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occurrence.” Ryan v. Nat'l Union Fire Ins. Co., 692 F.3d 162, 167 (2d Cir.2012) (quoting Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 876 A.2d 1139 (2005) (alterations omitted)). “In determining whether a claim falls within the scope of an insurance policy, the Supreme Court of Connecticut ‘construes broad policy language in favor of imposing a duty to defend on the insurer,’ and ‘requires a defense if an allegation of the complaint falls even possibly within the coverage.’ ” Id. (quoting Hartford Cas. Ins. Co., 274 Conn. at 466, 876 A.2d 1139 (2005) (alterations omitted)).

“[A]n insurer's duty to defend is measured solely by whether the complaints against the insured allege facts that, if proven true, would present a claim within the scope of the policy's coverage. It is well settled that an 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.” Coregis Ins. Co. v. American Health Found., 241 F.3d 123, 127 (2d Cir.2001) (internal citations and quotation marks omitted) (quoting Springdale Donuts, Inc. v. Aetna Cas. and Sur. Co., 247 Conn. 801, 807, 724 A.2d 1117 (1999)). “[T]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured.” Middlesex Ins. Co. v. Mara, 699 F.Supp.2d 439, 448 (D.Conn.2010). “[W]hen an exclusion clause is relied upon to deny coverage, the insurer has the burden of demonstrating that the allegations of the underlying complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation.” VT Mut. Ins. Co. v. Ciccone, 900 F.Supp.2d 249, 273 (D.Conn.2012). “In insurance cases, summary judgment may be granted as to the extent of coverage as a matter of law.” Mara, 699 F.Supp.2d at 445.

A. Occurrence

Identical language in Defendants' policies defines a covered “occurrence” as: an accident, including continuous or repeated exposure to substantially

the same general harmful conditions ... resulting in bodily injury or property damage.

(Ins. Pol. at 3) (formatting altered). “Bodily injury” as used in the definition of an “occurrence” is “physical harm to the body, including sickness or disease.” Id. The policies provide that, “[s]ubject to the terms, conditions, and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury ... arising from an occurrence to which this policy applies, and is covered by this part of the policy.” ( Id. at 21) (formatting altered).

Allstate contends that the Doe Complaint does not allege facts that if proven true would constitute an “occurrence,” and thus it does not have a duty to defend. Intervenor contends that there is a plausible claim for negligence against Defendants based on their failure to assist her and prevent the sexual assault, triggering Allstate's duty to defend.⁴ (Intervenor's Opp'n [Doc. # 47–1] at 7–12.)

Defendants are entitled to coverage if any allegation in the Doe Complaint, construed broadly, presents a claim within the scope of the policy's coverage for an “accident” arising out of an “occurrence.”

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See Ryan, 692 F.3d at 167–68. A plaintiff's characterization of the underlying claims against the insured is not dispositive. Mara, 699 F.Supp.2d at 456–57 & n. 32. Instead, “a duty to defend is determined by the facts in the underlying complaint, not the titles assigned to various counts.” Middlesex Mutual Assur. Co. v. Favreau, Case No. CV02396760S (JDD), 2003 WL 22234621, at *7 (Conn.Super.Ct. Sept. 17, 2003). “Connecticut courts look past the terminology in pleading to grant summary judgment for the insurer, holding there is no duty to defend a negligence action which is actually based on intentional acts by the insured.” Mara, 699 F.Supp.2d at 456 (citing Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006)).

“The Connecticut common law definition of ‘accident’ focuses on lack of intent. The Connecticut Supreme Court has defined the term ‘accident’ as an ‘unintended,’ ‘unexpected,’ or ‘unforeseen, unplanned’ event or condition.” Middlesex Ins. Co. v. Mara, 699 F.Supp.2d 439, 447 (D.Conn.2010) (collecting cases); see also Commercial Contractors Corp. v. Am. Ins. Co., 152 Conn. 31, 42, 202 A.2d 498 (1964) (defining accident with its “ordinary meaning” as an “unexpected happening”); Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 774–75, 67 A.3d 961 (2013) (an accident is “unexpected or unintended”).

In Mara, an insurer claimed that it had no duty to defend in a lawsuit brought against the insured by his neighbor alleging a number of incidents of racially-motivated harassment and intimidation over the course of a year. 699 F.Supp.2d at 442. The insured argued that he was entitled to insurance coverage because among the allegations of the underlying civil suit were claims for negligent infliction of emotional distress. The court explained that “even when an action is pled as an unintentional tort (e.g., negligence), the court examines the alleged activities in the complaint to determine whether the insured intended to commit both the acts and the injuries that resulted.” Id. at 450. If it appears both were intended, then coverage will be denied regardless of how the insured's conduct is characterized in the pleadings. Id. at 450. Reviewing the factual allegations in the underlying complaint, the court concluded that “[t]he true basis for the action is [the insured's] many...