Home Ins. Co. v. Aetna Life and Cas. Co.

• Court: Connecticut Court of Appeals
• Writing for the Court: Before DUPONT; DUPONT
• Citation: Home Ins. Co. v. Aetna Life and Cas. Co., 644 A.2d 933, 35 Conn.App. 94 (Conn. App. 1994)
• Decision Date: 20 September 1994
• Docket Number: No. 12434,12434
• Parties: HOME INSURANCE COMPANY v. AETNA LIFE AND CASUALTY COMPANY.

Page 933

644 A.2d 933

35 Conn.App. 94

HOME INSURANCE COMPANY v. AETNA LIFE AND CASUALTY COMPANY.

No. 12434.

Appellate Court of Connecticut.

Argued April 6, 1994.

Decided June 8, 1994.

Certifications Granted, Limited to the Following Issue Sept.

20, 1994.

William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Roger B. Calistro, New Haven, for appellant (plaintiff).

Edward W. Case, West Hartford, for appellee (defendant).

Lois B. Tanzer, Hartford, for Barry D. Schuss.

Before DUPONT, C.J., and LAVERY and SCHALLER, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant. This is a subrogation action to recover an amount paid by the plaintiff insurer for damages caused by a fire at the Emanuel Synagogue in West Hartford. The fire was set by Barry Schuss who pleaded guilty to arson in the third degree in violation of General Statutes § 53a-113(a). Schuss' parents are insured by the defendant.

The plaintiff, as the insurer and assignee of the Emanuel Synagogue, paid its insured $696,539.71 for the damage caused by the fire and commenced an action against Schuss to recover the amount paid. As a special defense, Schuss initially pleaded that he had been "exposed to various experiences in his personal life so as to result in a growing psychological vulnerability [and] ... his loss of a substantial ability to control himself." Schuss later withdrew the special defense, and the court rendered judgment, in accordance with a stipulation, against Schuss for $696,539.71 plus interest. The plaintiff and Schuss stipulated that the plaintiff would seek to satisfy the judgment only to the extent that Schuss had insurance coverage.

The plaintiff then commenced a subrogation action against the defendant, the insurer of Schuss' parents, to recover the amount of the judgment obtained against Schuss. The defendant did not deny that Schuss qualified as an insured under a general liability policy it issued to Schuss' parents. The defendant, however, pleaded as a special defense that it had no obligation to pay the judgment because Schuss' conduct of August 15, 1983, fell within an exclusion of the policy's coverage. The exclusion provides that the insurer is not liable for property damage "which is expected or intended by the insured."

The plaintiff filed an application for order pursuant to General Statutes § 52-146f for the release of certain confidential psychiatric records of Schuss. ¹ The plaintiff claimed that the defendant's special defense made Schuss' mental condition an issue in the case. The trial court denied the plaintiff's application on the ground that the defendant, not Schuss, introduced Schuss' mental condition as an issue in the case. The court also concluded that under the principles of subrogation the plaintiff held the contractual rights of Schuss but not his personal rights such as the privilege of confidentiality.

After the denial of the plaintiff's application, the defendant filed a motion for summary judgment, claiming that Schuss' plea of guilty to arson in the third degree conclusively established that he intended to cause damage to the synagogue, which would prevent him from being covered by the insurance policy. After the trial court denied the motion the defendant filed a second motion for summary judgment, contending that statements made by Schuss in a deposition of December 18, 1990, ² indicated that he intended or expected to damage the synagogue, which allegedly would trigger the application of the policy exclusion. The trial court granted this motion for summary judgment on the ground that there was no evidence before the court "except that which indicates Schuss intended to start the fires and do damage." The plaintiff claims on appeal that the trial court improperly (1) denied the application for an order releasing Schuss' psychiatric records and (2) granted the motion for summary judgment.

I

The plaintiff claims that the trial court improperly denied the plaintiff access to the psychiatric records of Schuss. We agree.

Pursuant to General Statutes §§ 52-146d and 52-146e, psychiatric communications and records ³ regarding the treatment or diagnosis of a patient's mental condition are confidential and may not be disclosed without the consent of the patient or his authorized representative. General Statutes § 52-146f(5) contains an exception to the confidentiality statute, providing that "records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense ... and the court or the judge finds that it is more important to the interests of justice that the [records] be disclosed than that the relationship between patient and psychiatrist be protected."

The plaintiff claims that the exception applies to this case because Schuss introduced his mental condition by pleading "psychological vulnerability" and a "substantial [in]ability to control himself" as a special defense in the plaintiff's action against Schuss. Although the patient, Schuss, introduced his mental condition in the plaintiff's action against Schuss, and not in the plaintiff's action against the defendant, the plaintiff claims that the actions are one and the same because the action against Schuss is the underlying action to the subrogation action against the defendant. We agree.

The plaintiff's action against the defendant flowed out of the plaintiff's stipulated judgment against Schuss and involved the same facts as the underlying action. Furthermore, under the principles of subrogation, a party that obtains a judgment against an insured defendant is substituted in place of the defendant for the purposes of an action against the insurer on the insurance policy. General Statutes § 38a-321; see 73 Am.Jur.2d, Subrogation § 1. The party is "subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment." General Statutes § 38a-321. This principle of substitution links the action against the insured and the subsequent subrogation action against the insurer to such an extent that they can be regarded as one cause of action. Although they are commenced as separate actions, they combine to form a single "civil proceeding" for the purposes of General Statutes § 52-146f(5). ⁴

The defendant, nevertheless, claims that because Schuss' special defense was later withdrawn, Schuss did not introduce his mental condition as an issue in the case. We disagree. A pleading that is later withdrawn or superseded " 'remains in the case as a part of its history and is available to the adverse party as an admission.' " Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978). In this case, Schuss' special defense, although later withdrawn, served to introduce his mental condition and constitutes a waiver of the right to prevent the disclosure of his psychiatric records.

Finally, the purpose of the patient-psychiatrist privilege of confidentiality "is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy" that could result from the release of the patient's psychiatric records. State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); see also Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). "Communications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence." Bieluch v. Bieluch, supra, at 819, 462 A.2d 1060.

The patient may assert the privilege only "if he had a justified expectation that his communications would not be publicly disclosed." State v. White, supra, 169 Conn. at 234, 363 A.2d 143; see also Conn. Joint Standing Committee Hearings, Judiciary and Government Functions, Pt. 2, 1961 Sess., p. 853. ("Once the question of a mental illness is introduced by the patient, there is no privilege after that at all for the patient.") In this case, Schuss did not have a justified expectation that his records would not be disclosed because he pleaded mental incapacity as a defense in the underlying action against him. As a result, the purpose of the privilege would not be achieved by allowing Schuss to assert it. Thus, we find pursuant to § 52-146f(5) "that it is more important to the interests of justice" to allow the disclosure of the psychiatric records than to protect the patient-psychiatrist relationship.

II

The plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment. We agree.

"Pursuant to Practice Book § 384, 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.' The party seeking summary judgment 'has the burden of showing the absence of any genuine issue as to all the material facts' ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. 'In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party.... The test is whether a party would be entitled to a directed verdict on the same facts.' " Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

Intent refers to an actor's desire to cause the consequences of his act, or to the actor's belief that the consequences are substantially certain to result from it. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. at 108, 639...