Fernandez v. Standard Fire Ins. Co.

• Decision Date: 11 February 1997
• Docket Number: No. 15511,15511
• Citation: 688 A.2d 349,44 Conn.App. 220
• Court: Connecticut Court of Appeals
• Parties: Danita FERNANDEZ v. STANDARD FIRE INSURANCE COMPANY.

Page 349

688 A.2d 349

44 Conn.App. 220

Danita FERNANDEZ v. STANDARD FIRE INSURANCE COMPANY.

No. 15511.

Appellate Court of Connecticut.

Argued Nov. 7, 1996.

Decided Feb. 11, 1997.

Donald E. Freeman, Hartford, for appellant (plaintiff).

Rodd J. Mantell, Hartford, with whom, on the brief, was Eugene A. Cooney, for appellee (defendant).

Before HEIMAN, SPEAR and FREDERICK A. FREEDMAN, JJ.

HEIMAN, Judge.

The plaintiff appeals from the judgment of the trial court granting the defendant's motion for summary judgment. On appeal, the plaintiff asserts that there are genuine issues of material fact as to whether the plaintiff's injuries were caused by her sexual relationship with Charles Landon and whether Charles Landon intended the plaintiff's injuries. The plaintiff further asserts that the trial court improperly determined, as a matter of law, that the plaintiff's injuries were not covered by the defendant's insurance policy because the plaintiff's injuries were not caused by "an occurrence" as that term is defined in the insurance policy. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In 1989, Charles Landon and Annemarie Landon hired the plaintiff to babysit for their son. In 1989, the plaintiff was thirteen years old and Charles Landon was an adult. During 1989, Landon had sexual intercourse with the plaintiff on over thirty occasions. As a result of these sexual encounters, the plaintiff suffered severe psychological damage, physical injury and social stigma.

At the time of the sexual assaults, Landon had a homeowner's insurance policy issued by the defendant, Standard Fire Insurance Company, that covered any claims brought against the insured for damages because of bodily injury or property damage caused by "an occurrence." The policy defines "occurrence" as an "accident, including exposure to conditions, which results, during the policy period, in bodily injury...."

In 1990, the plaintiff ¹ brought an action against Landon in two counts asserting, first, a negligence claim and, second, an intentional tort cause of action. The defendant provided Landon's defense while reserving its right to deny coverage. The trial court, Blue, J., found for Landon on the negligence claim and found for the plaintiff on the intentional tort claim, awarding the plaintiff $521,174.75 in damages.

The plaintiff then brought the present subrogation action against the defendant seeking payment of the judgment entered against Landon. The plaintiff asserted (1) that the defendant had breached its contract with Landon by failing to pay the judgment entered against him, and (2) that the defendant breached the implied covenant of good faith and fair dealing when it failed to make reasonable attempts to settle the claim against Landon within its policy limits.

The defendant moved for summary judgment on both counts, asserting that there was no issue of material fact because the insurance policy did not provide coverage for this loss. The defendant argued that because there was no coverage, there could be neither a breach of contract nor a bad faith refusal to settle the case. The trial court, Sheldon, J., granted the defendant's motion for summary judgment on the ground that "there is no genuine issue of material fact that intentional sexual misconduct by an insured is not an 'occurrence' to which coverage extends under the terms of the subject policy." This appeal follows.

"We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citation omitted; internal quotation marks omitted.) Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn.App. 219, 222, 678 A.2d 1005, cert. granted on other grounds, 239 Conn. 916, 682 A.2d 1014 (1996).

Here, the plaintiff asserts that whether her injuries were caused by Landon's sexual misconduct, and whether Landon's sexual misconduct was intentional represent genuine issues of material fact. Thus, the plaintiff's injuries may have been caused by an accidental occurrence and may be covered by the insurance policy. We disagree.

"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).

Here, after a full adversary proceeding, the trial court, Blue, J., determined that Landon's acts of sexual misconduct caused the plaintiff's injuries, ² and that these acts of sexual misconduct were intentional. ³ These determinations as to causation and intent were necessary to the trial...