Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 80 Conn. App. 364 (Conn. App. 12/2/2003)

• Decision Date: 02 December 2003
• Docket Number: (AC 23896)
• Citation: 80 Conn. App. 364
• Court: Connecticut Court of Appeals
• Parties: HARTFORD CASUALTY INSURANCE COMPANY ET AL. <I>v.</I> LITCHFIELD MUTUAL FIRE INSURANCE COMPANY.

Page 364

80 Conn. App. 364

HARTFORD CASUALTY INSURANCE COMPANY ET AL.

v. LITCHFIELD MUTUAL FIRE INSURANCE COMPANY.

(AC 23896)

Appellate Court of Connecticut

Argued October 14, 2003

Officially released December 2, 2003

Lavery, C. J., and DiPentima and Peters, Js.

Procedural History

Action for a declaratory judgment to determine the rights of the parties under certain insurance policies, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the court, Dunnell, J., denied the plaintiffs' motion for summary judgment and granted the defendant's motion for summary judgment, and rendered judgment thereon, from which the plaintiffs appealed to this court. Reversed; further proceedings.

Philip F. von Kuhn, for the appellants (plaintiffs).

Joel J. Rottner, with whom, on the brief, was Kirby G. Huget, for the appellee (defendant).

Opinion

PETERS, J.

This case concerns a premises liability insurance policy.¹ The issue is whether the policy provides coverage for personal injury litigation arising out of a negligent use of the premises that is not linked to a defective condition in the premises themselves. The injured person was a child who was bitten on the premises by a dog that was owned and kept by the owner of the business and the premises. The trial court concluded that the owner did not have insurance coverage because the owner did not keep the dog on the premises for the purpose of protecting the premises. Accordingly, it granted the insurer's motion for summary judgment. We disagree and reverse the judgment of the court.

The plaintiffs, Hartford Casualty Insurance Company (Hartford Casualty)² and Mitch Wylie (Wylie), the president of Strictly Dirt, Inc. (Strictly Dirt), filed a four count complaint against the defendant, Litchfield Mutual Fire Insurance Company. The plaintiffs sought a declaratory judgment that Wylie had coverage under one of two policies issued by the defendant, one in which the insured was Wylie and the other in which the insured was Strictly Dirt, a company wholly owned by Wylie. For the sake of convenience, we will focus on the terms of the Wylie policy.

The plaintiffs alleged that the policy the defendant issued to Wylie provided coverage for him as the owner of a dog that bit a business invitee on the business premises of Strictly Dirt, located at 309 Albany Turnpike, Canton.³ They further alleged that the policy obligated the defendant to provide a defense for Wylie in the dog bite litigation and to indemnify both plaintiffs for costs incurred in settling that litigation.

The plaintiffs filed a motion for summary judgment with respect to the defendant's alleged duty to defend. The defendant then filed a cross motion for summary judgment, in which it denied that the Wylie policy provided coverage for the dog bite incident.⁴

The trial court granted the motion filed by the defendant and denied the motion filed by the plaintiffs. Without expressly addressing the other counts of the plaintiffs' complaint, the court rendered a judgment in favor of the defendant. The plaintiffs have appealed.

Because a summary judgment depends on a finding that there is no genuine issue of material fact, an appeal from such a judgment necessarily raises a question of law. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

The question of law in this case concerns the proper interpretation of the premises insurance policy issued to Wylie by the defendant. The policy did not purport to cover any and all risks of injury that might arise in connection with Wylie's business, Strictly Dirt, Inc. Instead, the policy expressly limited coverage for bodily injury to "an occurrence [that arises] out of . . . use of the insured premises or operations that are . . . incidental to the insured premises." The gist of the plaintiffs' appeal is that the trial court interpreted this language too narrowly. We agree.

The trial court's memorandum of decision describes the underlying facts, which are undisputed. "On March 15, 1997, Hartford Casualty issued a homeowner's insurance policy to Wylie for a term of one year. On June 27, 1997, [the defendant] issued two insurance polices, a commercial `premises only' policy to Wylie as owner of 309 Albany Turnpike and an identical policy to Strictly Dirt, Inc, as lessee of the subject property." Wylie was the president and sole stockholder of Strictly Dirt, a company engaged in the business of buying and selling dirt bikes, dirt bike parts and accessories.

"On February 21, 1998, two-year-old Samantha Bard was bitten by Wylie's dog while on the premises of Strictly Dirt, Inc.⁵ On February 14, 2000, Bard, through her parent and next friend, Stacey Busque; Stacey Busque individually; and Troy Bard filed a thirty count complaint against Wylie and Strictly Dirt, Inc., seeking damages in connection with the dog bite incident. Fifteen counts were directed against Wylie as the owner and/or keeper of the dog and fifteen counts were directed against Strictly Dirt, Inc., as the owner and/ or keeper of the dog on its business premises. The defendant defended Strictly Dirt, Inc., but refused to defend Wylie. Hartford Casualty defended Wylie and ultimately settled all claims against him. While the dog bite suit was pending, Hartford Casualty and Wylie filed the present declaratory judgment action seeking a judgment that [the defendant] had a duty to defend and indemnify Wylie in the dog bite suit, that the coverage under the two commercial policies issued by [the defendant] was primary and that the coverage under the homeowner's policy issued by Hartford Casualty was excess."

I DUTY TO DEFEND

As our case law requires, the trial court decided the coverage issue with respect to the defendant's duty to defend Wylie by referring to the pleadings in the dog bite complaint. See, e.g., Board of Education v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 40-41, 801 A.2d 752 (2002); Flint v. Universal Machine Co., 238 Conn. 637, 646, 679 A.2d 929 (1996). The complaint listed several ways in which Wylie's alleged negligence caused the dog bite to occur. By including a street address, the complaint identified the Strictly Dirt premises as the place at which the dog bite had occurred. It did not, however, allege that Wylie was the owner of the premises, that he was performing services for Strictly Dirt or that he kept the dog for the benefit of Strictly Dirt.

The trial court concluded that the absence of an express tie-in between the allegations of the complaint and the terms of the premises insurance policies was fatal to the plaintiffs' claim that the defendant had a duty to defend Wylie in the dog bite proceedings. The court held: "A careful reading of the dog bite complaint, however, does not support the plaintiffs' assertion that it contains allegations that Wylie was negligent while acting as an agent or employee of Strictly Dirt, Inc. Moreover, the subject policy states that where the insured is an organization, `insured means you and all of your executive officers and directors, but only while acting within the scope of their duties in connection with the business conducted on the insured premises described on the Declarations. . . . Insured also includes . . . your employees, for acts within the scope of their employment by you . . . .' (Emphasis added.)" The court found that "uncontroverted evidence in the present action establishes that the dog was unrelated to Wylie's duties as an employee of Strictly Dirt, Inc., and therefore Wylie was not acting within the scope of his duties as an employee or director of Strictly Dirt, Inc., when his dog bit [the victim]." Accordingly, the court granted the defendant's motion for summary judgment.

Although we agree with the trial court that the defendant had no duty to defend Wylie, we do so on a different ground. Our Supreme Court has held that a determination of whether an insurer has such a duty is not necessarily confined to an examination of the allegations of the underlying complaint. Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 141-42, 267 A.2d 660 (1970). There thus may be cases in which an insurer has access to additional facts that supplement the complaint so as to trigger a duty to defend.

On the record in this case, however, the defendant had no reason to know anything other than the terms of the insurance policy and the allegations of the complaint. Wylie's affidavit in support of the plaintiffs' motion for summary judgment referenced his delivery of a copy of the complaint to the defendant and nothing else. Even though the defendant must be held to have recognized that the dog bite took place on insured premises, we are not persuaded that it should be held to have been aware of any linkage between Wylie's alleged negligence and the business conducted on the insured premises. For all the defendant knew or had reason to know, the dog might have been on the premises for Wylie's personal convenience for one day only.

We conclude, therefore, that, under the circumstances of this case, the defendant did not have a duty to defend Wylie. The trial court properly granted the defendant's motion for summary judgment on count two of the plaintiffs' complaint.

II DUTY TO INDEMNIFY

Although the motions for summary judgment did not address the plaintiffs' claim for indemnity, the trial court also considered the merits of the plaintiffs' claim that the defendant had a duty to indemnify,⁶ as alleged in count one of the plaintiffs' complaint. The court's judgment was not restricted to count two. Because the parties' arguments to the court at trial and in their appellate briefs...