Connecticut Ins. Guar. Ass'n v. Fontaine

• Decision Date: 04 July 2006
• Docket Number: No. 17457.,17457.
• Citation: 900 A.2d 18,278 Conn. 779
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT INSURANCE GUARANTY ASSOCIATION v. Carol FONTAINE et al.

900 A.2d 18

278 Conn. 779

CONNECTICUT INSURANCE GUARANTY ASSOCIATION v. Carol FONTAINE et al.

No. 17457.

Supreme Court of Connecticut.

Argued February 15, 2006.

Decided July 4, 2006.

Gregg A. Rubenstein, pro hac vice, with whom were Charles W. Pieterse and, on the brief, Gerard N. Saggese III and Joseph C. Tanski, pro hac vice, for the appellant (plaintiff).

Antonio Ponvert III, Bridgeport, for the appellee (named defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFELTILLE and ZARELLA, Js.^*

NORCOTT, J.

In this appeal, we consider whether the trial court properly concluded that a loss of consortium claim is covered under the terms of a professional liability insurance policy covering claims that arise "because of bodily injury." The plaintiff, the Connecticut Insurance Guaranty Association (association), brought this declaratory judgment action to determine its obligation to pay a loss of consortium claim brought in connection with a medical malpractice action that had been commenced by the named defendant, Carol Fontaine, and her husband, Thomas Fontaine. The association appeals¹ from the judgment of the trial court granting the named defendant's cross motion for summary judgment on the basis of the insurance policy's plain and unambiguous language. We affirm the judgment of the trial court, but on the alternate ground that the language at issue is ambiguous and, therefore, properly construed against the association in place of the insolvent insurer that drafted the policy.

The record reveals the following undisputed facts and procedural history. In 1999, the named defendant and her husband brought an action against the defendant physician, Michael Jimenez,² alleging that his medical malpractice had caused Thomas Fontaine bodily injury, and the defendant a resulting loss of consortium. At the time of the alleged malpractice, Jimenez was insured by the PHICO Insurance Company (PHICO) under a policy that covered "[p]hysician and [s]urgeon [p]rofessional [l]iability" and "[i]nstitutional [p]rofessional [l]iability." The relevant portion of the policy stated that PHICO "agree[d] with the named insured to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by a medical incident...." The policy further defined "`[b]odily [i]njury'" as "`injury to the human body, illness or disease sustained by [a] person, including death at any time resulting therefrom.'" Thereafter, PHICO was declared insolvent by a Pennsylvania court of competent jurisdiction, and the association became responsible for the payment of all "covered claims" pursuant to the Connecticut Insurance Guaranty Act (guaranty act), General Statutes § 38a-836 et seq.

The association then brought this declaratory judgment action seeking determinations, inter alia, that it has: (1) "no obligation to pay [the defendant's] claim for loss of consortium"; and (2) "no obligation to defend or indemnify ... Jimenez with respect to [the defendant's] loss of consortium claim." The plaintiff moved, and the defendant cross moved, for summary judgment, with each party claiming that the relevant policy language clearly and unambiguously supported its position. The trial court denied the plaintiff's motion and granted the defendant's cross motion for summary judgment, concluding that, "it is clear under the policy that [the defendant's] loss of consortium claim comes within the coverage for damages because of ... bodily injury ... caused by a medical incident.... In this action, the coverage is not limited by the policy terms to damages paid for the direct bodily injury suffered by [Thomas] Fontaine. The language at issue does not require that recovery be limited to one who sustained a bodily injury.... [T]here is no question of material fact that [the defendant's] claim for loss of consortium is covered under the terms and conditions of the policy."³ (Citations omitted; emphasis in original; internal quotation marks omitted.) This appeal followed.

On appeal, the association, relying primarily on this court's decision in Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987), and the decision of the United States Court of Appeals for the First Circuit in Diamond International Corp. v. Allstate Ins. Co., 712 F.2d 1498 (1st Cir.1983), claims that the unambiguous language of the policy is limited to claims for bodily injuries, which precludes coverage for the defendant because she has not suffered a bodily injury, and claims only loss of consortium. In response, the defendant contends that the association's reliance on Izzo is misplaced and that its reading of the policy's plain language ignores the import of the phrase, "`damages because of bodily injury,'" as her loss of consortium claim would not exist, but for her husband's bodily injury. (Emphasis added.) The defendant also claims, alternatively, that the policy's language is ambiguous and, under the well established doctrine of contra proferentem, should be construed against the insurer, or in the present case, the association in the insurer's place.⁴ We conclude that the policy language is ambiguous and should, therefore, be construed to afford coverage for the defendant's loss of consortium claim.

"We begin by setting forth the well settled standard of review for interpreting insurance contracts. [C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo.... It is the function of the court to construe the provisions of the contract of insurance.... The [i]nterpretation of an insurance policy ... involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy.... [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy ... [giving the] words... [of the policy] their natural and ordinary meaning ... [and construing] any ambiguity in the terms ... in favor of the insured...." (Citation omitted; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 462-63, 876 A.2d 1139 (2005). Moreover, although the legal definition of the disputed claim is relevant in determining whether that claim is covered under the policy language at issue, that policy language remains the touchstone of our inquiry. See Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 518, 838 A.2d 993 (2004) (although plaintiff's bystander emotional distress forms basis of "separate and independent direct action," that characterization was not determinative of whether that claim was subject to coverage limit applicable to claims arising from physical injuries to plaintiff's son).

We begin our coverage analysis by briefly reviewing the nature of the action for loss of consortium, which this court first recognized in Hopson v. St. Mary's Hospital, 176 Conn. 485, 486, 408 A.2d 260 (1979), a medical malpractice case in which this court concluded that a husband had a valid claim that, "because of the defendants' negligence he was deprived of the love, affection and consortium of his wife...." See also id., at 487, 408 A.2d 260 (overruling Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 [1911], which held that "a married person whose spouse has been injured by the negligence of a third party has no cause of action for loss of consortium").⁵ "A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions." Izzo v. Colonial Penn Ins. Co., supra, 203 Conn. at 312, 524 A.2d 641. "[A]lthough loss of consortium is a separate cause of action, it is an action [which] is derivative of the injured spouse's cause of action.... Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." (Citation omitted; internal quotation marks omitted.) Id.; see also Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555-56, 562 A.2d 1100 (1989) (loss of consortium recovery may be diminished by injured spouse's comparative responsibility, even when punitive damages have been awarded, because "derivative action is dependent upon the legal existence of the predicate action, i.e., that action which can be brought on behalf of the injured spouse himself or herself").

We next determine whether the term "because of bodily injury" is ambiguous with respect to loss of consortium claims in the context of a policy wherein the insurer "agree[d] with the named insured to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by a medical incident...." (Emphasis added.) See Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. at 462-63, 876 A.2d 1139. "The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247 Conn. 801, 806, 724 A.2d 1117 (1999). Rather, insurance policy language is ambiguous if we determine that it is "reasonably susceptible to more than one reading." (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 255 Conn. 295, 305, 765 A.2d 891 (2001); see also, e.g., Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004) ("[w]hen the words of...