Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co.

• Decision Date: 29 August 2000
• Docket Number: (SC 16131)
• Citation: Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 757 A.2d 1074 (Conn. 2000)
• Court: Connecticut Supreme Court
• Parties: COMMUNITY ACTION FOR GREATER MIDDLESEX COUNTY, INC. v. AMERICAN ALLIANCE INSURANCE COMPANY

254 Conn. 387

757 A.2d 1074

COMMUNITY ACTION FOR GREATER MIDDLESEX COUNTY, INC. v. AMERICAN ALLIANCE INSURANCE COMPANY

(SC 16131)

Supreme Court of Connecticut.

Argued March 15, 2000.

Officially released August 29, 2000.

McDonald, C. J., and Borden, Norcott, Palmer and Vertefeuille, JS. John W. Lemega, with whom, on the brief, was Michael S. Taylor, for the appellant (plaintiff).

Linda L. Morkan, with whom, on the brief, was Theodore J. Tucci, for the appellee (defendant).

Opinion

PALMER, J.

The principal issue raised by this certified appeal is whether the defendant insurer, American Alliance Insurance Company, had a duty to defend its insured, the plaintiff, Community Action for Greater Middlesex County, Inc., in a negligence action brought against the plaintiff on behalf of a child who alleged that she had been sexually abused and sexually molested by three other children while the four children were attending a preschool program operated by the plaintiff. The defendant contends that it had no duty to defend the plaintiff in light of an exclusion in its insurance policy for abuse or molestation. We agree with the defendant.

The decision of the Appellate Court sets forth the relevant facts and procedural history. "[The plaintiff] initiated suit against [the defendant] for breach of an insurance contract. The allegations asserted in the complaint include the following. [The plaintiff], a federally funded agency, provides a preschool training program. [The defendant] is the general liability insurance carrier for [the plaintiff] under a policy purchased from [the defendant] by [the plaintiff]. The parent and next friend of a six year old child¹ [Edna Poe]² brought suit against [the plaintiff] alleging that while [Poe] was enrolled in the program, she was sexually molested [and sexually abused]³ by three boys who were in her class.⁴ [In particular, the suit alleges that, on two separate occasions, the three boys had "grabbed and fondled" Poe's vagina.]⁵

"Pursuant to the insurance contract, [the defendant] agreed to defend and indemnify [the plaintiff] against any action seeking damages due to bodily injury. Upon notice of the litigation brought on behalf of [Poe], [the plaintiff] notified [the defendant] and demanded that [the defendant] defend and indemnify it against the suit. [The defendant] declined to defend or to indemnify [the plaintiff], relying on the abuse or molestation exclusion contained in the insurance policy. Following its successful defense of [Poe's case], [the plaintiff] sought reimbursement from [the defendant] for all the expenses incurred, plus interest. [The defendant] refused the demand and [the plaintiff] filed a complaint alleging that [the defendant] breached the insurance contract by its failure to provide a defense.

"[The defendant] responded to the complaint, admitting certain allegations and denying others, and raised a special defense. Specifically, [the defendant] asserted that the insurance policy issued to [the plaintiff] contained an express exclusion for abuse or molestation,⁶ the provisions of which apply to the claims raised by [Poe] against [the plaintiff], and, therefore, [the defendant] did not owe [the plaintiff] any duty to defend or any other contractual obligation under the applicable policy. The record does not contain a reply to this special defense.

"In March, 1997, both parties filed motions for summary judgment .... Following oral argument, the trial court reserved decision and then, by notice dated May 14, 1997, notified the parties of its ruling in favor of [the defendant]. The trial court did not provide a memorandum of decision to explain the basis for its decision. Rather, the court simply signed the order, indicated that [the plaintiff's] motion for summary judgment was denied and that [the defendant's] motion for summary judgment was granted, and wrote on the order, `See Middlesex Mutual Assurance Co. v. Rand, Superior Court, [judicial district of Middlesex, Docket No. CV95-76644] (April 4, 1996) (Stanley, J.).'" Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 52 Conn. App. 449, 450-52, 727 A.2d 734 (1999).

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had determined that the defendant, as opposed to the plaintiff, was entitled to summary judgment. The Appellate Court concluded that the record was inadequate for its review of the plaintiff's claim because the plaintiff had failed to provide that court with a memorandum of decision or a signed transcript of an oral ruling by the trial court explaining its decision to grant the defendant's motion for summary judgment. Id., 452. The Appellate Court therefore affirmed the judgment of the trial court without reaching the merits of the plaintiffs claim. Id., 454.

We granted the plaintiffs petition for certification to appeal, limited to the following issues: "1. Did the Appellate Court properly conclude that the record was not sufficient for review of the plaintiffs claims? [And] 2. [i]f the answer to [the first] question ... is no, did the trial court properly grant the defendant's and deny the plaintiffs motions for summary judgment?" Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 249 Conn. 924, 733 A.2d 846 (1999). We conclude that the Appellate Court improperly determined that the record was inadequate for its review of the plaintiffs claim. We also conclude, however, that the trial court properly granted the defendant's motion for summary judgment. Accordingly, we affirm the judgment of the Appellate Court, albeit on a ground not reached by that court.

I

The plaintiff first maintains that the record was adequate for the Appellate Court's review of the plaintiffs claim that the trial court improperly had rendered summary judgment for the defendant rather than the plaintiff. We agree.

The following facts are relevant to our determination of this claim. The trial court endorsed the last page of the defendant's motion for summary judgment as follows: "Granted .... See Middlesex Mutual Assurance Co. v. Rand, [supra, 16 Conn. L. Rptr. 414]."⁷ The trial court then rendered judgment in accordance with this ruling. The plaintiff did not seek an articulation of the court's ruling. In refusing to review the merits of the plaintiff's claim, the Appellate Court stated: "The duty to provide [the Appellate] [C]ourt with a record adequate for review rests with the appellant.⁸ ... In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for its decision to resolve the insurance policy coverage issue against [the plaintiff] and to deny [the plaintiffs] motion for summary judgment. See Practice Book § 64-1 (a)⁹...." Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 52 Conn. App. 452.

The Appellate Court further explained that, "[w]hile the trial court wrote on its order, `[s]ee Middlesex Mutual Assurance Co. v. Rand,' that decision does not inform us as to the trial court's reasoning in the present case. Middlesex Mutual Assurance Co. involved an exclusion for `bodily injury or property damage which is expected or intended by the insured.' In Middlesex Mutual Assurance Co., the court concluded that the exclusion applied in an instance of sexual assault by an adult on a minor. The exclusion in the present case, however, was for `actual or threatened abuse or molestation' and the incident involved an alleged act of sexual molestation by minors of another minor. The Middlesex Mutual Assurance Co. decision also discussed summary judgment and when an insurer's duty to defend arises, in addition to the discussion on the exclusion. We cannot speculate on the purpose for which the Middlesex Mutual Assurance Co. case was noted.

"Thus, `[w]e are ... left to surmise or speculate as to the existence of a factual predicate for the trial court's rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.... Without the necessary factual and legal conclusions furnished by the trial court... any decision made by us respecting [the plaintiffs claims] would be entirely speculative.'" Id., 453. The Appellate Court then affirmed the judgment of the trial court without reaching the merits of the plaintiff's claim concerning the trial court's rulings on the parties' motions for summary judgment. Id., 454.

It is well established that the appellant bears the burden of providing an appellate court with an adequate record for review. Practice Book § 61-10; Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33-34, 727 A.2d 204 (1999); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998). "It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... [or] to clarify the legal basis of a ruling...." (Citations omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 53; accord Rivera v. Double A Transportation, Inc., supra, 34; cf. C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 4.3 (a), p. 4-5.

The question we must decide is whether, under the circumstances of this case, the trial court's citation to one case, Middlesex Mutual Ins. Co. v. Rand, supra, 16 Conn. L. Rptr. 414, in support of its decision to grant the defendant's motion for summary judgment, constituted an adequate basis for appellate review of that decision. Although it would have been preferable for the trial court to have provided a more detailed explanation of its ruling—a practice that we strongly...