Firestine v. Poverman

Decision Date29 January 1975
Docket NumberCiv. No. 15467.
Citation388 F. Supp. 948
CourtU.S. District Court — District of Connecticut
PartiesRichard M. FIRESTINE, Adm. of the Estate of Lisa Marie Firestine, Plaintiff, v. Simon POVERMAN et al., Defendants. Peter MIKLAVE, Defendant and Third-Party Plaintiff, v. MIDDLESEX MUTUAL ASSURANCE COMPANY, Third-Party Defendant.

James E. Heffernan, Jr., Joseph A. Hourihan, West Hartford, Conn., for plaintiff.

Edmund T. Curran, Maurice T. Fitzmaurice, Edward F. Hennessey, III, Hartford, Conn., for defendants.


BLUMENFELD, District Judge.

This is a death action resulting from the drowning of two-year-old Lisa Marie Firestine on July 19, 1972, in a pool maintained on premises in Connecticut under the control of the defendants and available for use of tenants in a housing compound containing some 176 rental units.1 The defendant Peter Miklave has impleaded the Middlesex Mutual Assurance Company (hereinafter "Middlesex") as a third-party defendant. Miklave alleges and Middlesex admits that on or about April 20, 1972, Middlesex sold a homeowners policy for a valuable consideration to Frank J. Miklave and Mary E. Miklave, as named insureds, covering a policy period from May 19, 1972, to May 19, 1973, and including general liability coverage up to $50,000 per occurrence for bodily injury liability. Middlesex further admits that Peter Miklave was an additional insured under the homeowners policy because he resided in the same household as the named insureds, who are his parents. Miklave further alleges, but Middlesex denies, that under the terms of the policy Middlesex is obligated to pay on behalf of Peter Miklave all sums which he shall become legally liable to pay as damages because of bodily injury, including death, and is also obligated to defend any suit against Miklave seeking damages on account of such bodily injury or death. Finally, Miklave alleges that he has made demand upon Middlesex for the legal representation in this action to which he claims he is entitled, and that such demand has been rejected by Middlesex. Miklave concludes that if he is legally liable to the plaintiff for the injury and death of Lisa Firestine then Middlesex is in turn liable to indemnify him for the amount of any recovery within the policy limits. Middlesex claims that it is liable neither to defend nor to indemnify Miklave.


In order to understand the dispute it is necessary to understand its factual background. Miklave was, at the time of Lisa Firestine's death, a sixteen-year-old summer employee of the Poverman rental-management agency assigned to the maintenance crew. On the morning of July 19, 1972, he and defendant Humphrey were assigned to wash the diving board of and add the chemicals to the pool in which Lisa Firestine drowned later that day. When Miklave and Humphrey left the fenced pool area they admittedly left the gate unlatched. Lisa Firestine apparently wandered through the unlatched gate sometime thereafter, fell into the pool, and drowned.

Middlesex claims that this factual pattern falls into an exclusion to its coverage of the Miklaves: viz., "this policy does not apply . . . to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to nonbusiness pursuits." Middlesex's position is that Miklave's failure to latch the pool gate arose out of his business pursuits. In support of its position Middlesex has entered two motions, which are the subject of this opinion. The first is a motion for summary judgment on both issues — duty to indemnify and duty to defend. The second is a motion for a stay of the main action in this case (Firestine v. Poverman et al.) pending an immediate trial of the issues raised in Miklave's third-party complaint.

In urging its motions Middlesex stresses its need for a prompt resolution of the issue of its duty to defend. Under Connecticut law, which applies in this diversity action because all events relevant to the case occurred in this state,2 the duty to defend turns solely upon whether the complaint alleges an occurrence which, if proven, would fall within the coverage of the insureds' policy.3 See, e. g., Missionaries of the Co. of Mary, Inc. v. Aetna Cas. & Sur. Co., 155 Conn. 104, 110, 230 A.2d 21 (1967). It is irrelevant to the existence of a duty to defend whether or not the complaint is groundless and whether or not the insurer will eventually be able to establish that it has no duty to indemnify the insured. See, e. g., Allstate Ins. Co. v. Lumbermens Mut. Cas. Co., 204 F.Supp. 83 (D.Conn.1962). If the insurer chooses not to defend, and if its insured is found liable, and if a court later finds that the insurer did have a duty to defend, the insurer will be liable to reimburse him for the cost of his defense and to pay the damages for which its insured was found liable, up to the policy limits, whether or not it might have had a good defense to the claim that it had a duty to indemnify. See Schurgast v. Schumann, 156 Conn. 471, 482-491, 242 A.2d 695 (1968). Thus Middlesex wants an immediate judicial determination of whether it has an obligation to defend Miklave, for if it makes a mistake in not defending him it will be liable for any damages assessed against him whether or not it would be so liable under the terms of the Miklaves' homeowners policy. The instant motions are outgrowths of this desire for prompt resolution of these third-party issues.4


There are three important legal rules and canons of construction that must be borne in mind in ruling on Middlesex's motion for summary judgment. The first is that

"Where an insurer sets up a special exclusion for the purpose of withdrawing from the coverage a specific liability it was unwilling to provide indemnity for, the burden is on the insurer to prove that exception to the risk. O'Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955). . . ."

American Ins. Co. v. Saulnier, 242 F. Supp. 257, 259 (D.Conn.1965).

The second rule is that language in an insurance contract is to be given its ordinary and natural reading. See Gaunt v. John Hancock Mut. Life Ins. Co., 160 F.2d 599, 601 (2d Cir.), cert. denied, 331 U.S. 849, 67 S.Ct. 1736, 91 L.Ed. 1858 (1947); Passkowski v. Prudential Ins. Co. of America, 182 F. Supp. 819, 821-822 (D.Conn.1960); General Constr. Co. v. Aetna Cas. & Sur. Co., 151 Conn. 684, 686, 202 A.2d 146 (1964); Plunkett v. Nationwide Mut. Ins. Co., 150 Conn. 203, 206-207, 187 A. 2d 754 (1963), and cases cited therein. Where the language is ambiguous and the ordinary meaning is unclear the words will be construed so as to favor the insured because it was the insurer who wrote the language. This is commonly known as the canon "contra proferentem." See Lee v. Aetna Cas. & Sur. Co., 178 F.2d 750, 753 (2d Cir. 1949) (Hand, C. J.); New York Cent. Mut. Fire Ins. Co. v. Basch, Civ. No. 10,542 (D.Conn. Oct. 19, 1966); A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966); Smedley Co. v. Employers Mut. Liab. Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956) (canon extends to interpretation of exclusion clauses); Carta v. Providence Wash. Indem. Co., 143 Conn. 372, 377, 122 A.2d 734 (1956).

The third rule is that the insurance policy must be construed as a whole, and all of its relevant provisions are to be considered in connection with one another. See General Constr. Co. v. Aetna Cas. & Sur. Co., 151 Conn. 684, 685, 202 A.2d 146 (1964); Leathermode Sportswear Co. v. Liberty Mut. Ins. Co., 150 Conn. 63, 66, 186 A.2d 79 (1959).

With these principles to guide the inquiry, the exclusionary clause in the Miklaves' policy must be construed in order to determine whether the actions upon which Peter Miklave's possible liability is based were "business pursuits of any Insured except activities therein which are ordinarily incident to nonbusiness pursuits." The initial inquiry is the meaning of "business pursuits."5

Some aid to the ascertainment of the meaning of that phrase may be found within the four corners of the policy itself. The Miklaves' insurance policy contains two other exclusions that stand on either side of exclusion "d.," the business-pursuits exclusion, and give it context:

"This policy does not apply: . . .
c. to bodily injury or property damage arising out of the rendering of or failing to render professional services;
d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to nonbusiness pursuits;
e. to bodily injury or property damages arising out of any premises, other than an insured premises, owned, rented or controlled by any Insured; but this exclusion does not apply to bodily injury to any residence employee arising out of and in the course of his employment by any Insured . . . ." (Emphasis added.)

In addition, the rendering of professional services and work in the course of one's employment are referred to explicitly in numerous other places in the insurance policy. The most logical interpretation of "business pursuits" as used in this contract is therefore one that...

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