Homesite Ins. Co. v. Brezniak

• Decision Date: 26 January 2022
• Docket Number: 3:21cv26 (MPS)
• Citation: 581 F.Supp.3d 424
• Parties: HOMESITE INSURANCE COMPANY, Plaintiff, v. Melissa BREZNIAK and Alissa Goguen, Defendants.
• Court: U.S. District Court — District of Connecticut

581 F.Supp.3d 424

HOMESITE INSURANCE COMPANY, Plaintiff,

v.Melissa BREZNIAK and Alissa Goguen, Defendants.

No. 3:21cv26 (MPS)

United States District Court, D. Connecticut.

Signed January 26, 2022

James Efrem Ringold, Loughlin Fitzgerald, P.C., Wallingford, CT, for Plaintiff.

Jeffrey L. Ment, The Ment Law Group, LLC, Hartford, CT, for Defendant Melissa Brezniak.

Robert C. Lubus, Jr., Grady & Riley, Waterbury, CT, for Defendant Alissa Goguen.

RULING ON MOTION FOR SUMMARY JUDGMENT

Michael P. Shea, U.S.D.J.

Plaintiff Homesite Insurance Company ("Homesite") filed this action seeking a declaratory judgment that it has no duty to defend or indemnify its insured, Melissa Brezniak, for claims asserted against her in an action brought by Alissa Goguen in Connecticut state court, Alissa Goguen v. Melissa Brezniak, et al. , No. LLI-CV20-6026658. In that action, Goguen alleges that in 2019 Brezniak transmitted a sexually transmissible disease

to Goguen's husband, who in turn infected Goguen. Homesite has filed a motion for summary judgment on the grounds that the homeowner's insurance policy under which Brezniak seeks coverage excludes coverage for bodily injury "[w]hich arises out of the transmission of a communicable disease by an ‘an insured.’ " ECF No. 22. Brezniak and Goguen have each filed an opposition to Homesite's motion. ECF Nos. 25, 26. For the reasons set forth, the motion is granted.

I. FACTS

The following facts are taken from the parties’ Local Rule 56 statements and are undisputed unless otherwise noted.

Policy Issuance

In 2013, Homesite issued a homeowners insurance policy ("Policy") to Brezniak as the named insured for her residence in Connecticut. ECF No. 25-5 at 49. Homesite sent Brezniak a "Welcome Package" dated February 12, 2013 that contained the Policy's declaration page and provided Homesite's contact information. ECF No. 26 at 46-47, Brezniak's Additional Material Fact ("Brezniak's AMF") ¶¶ 1-2; ECF No. 25-2, Goguen's Additional Material Facts ("Goguen's AMF") ¶¶ 7-8; ECF No. 25-6 at 5. The Welcome Package informed Brezniak that if any of the policy information needed to be corrected, she must advise Homesite within 30 days of receipt. ECF No. 26 at 47, Brezniak's AMF ¶ 2; ECF No. 25-2, Goguen's AMF ¶ 4. "None of the documentation provided in the ‘Welcome Package’ referenced the communicable disease exclusion." ECF No. 26 at 47, Brezniak's AMF ¶ 2; ECF No. 25-2, Goguen's AMF ¶ 8. Homesite also sent Brezniak a letter " ‘at the latest’ on February 14, 2013 providing her access to a website where she could access copies of all her insurance documents, including the declaration, the Policy, its endorsements, and any exclusions contained therein." ECF No. 26 at 47, Brezniak's AMF ¶ 3; ECF No. 25-2, Goguen's AMF ¶ 9; ECF No. 25-6 at 5. Homesite sent Brezniak a hard copy of the Policy on March 13, 2013, "likely" after she had made her first payment. ECF No. 26 at 47, Brezniak's AMF ¶ 4; ECF No. 25-2, Goguen's AMF ¶ 10; ECF No. 25-6 at 5. Brezniak avers in her affidavit that "by the time [she] received a copy of the policy from Homesite ... [she] was already bound to [her] mortgage, which required [her] to name the mortgage company as a payee beneficiary under said policy." ECF No. 27 at 12, Brezniak Aff. ¶ 6. The March 13, 2013 packet included a list of optional additional coverages and endorsements but coverage for losses arising out of the transmission of a communicable disease was not included on the list of optional coverages. ECF No. 26 at 47, Brezniak's AMF ¶ 5; ECF No. 25-2, Goguen's AMF ¶ 11. When Brezniak purchased the policy in 2013, she knew she was infected with Herpes Simplex

Virus Type 1. ECF No. 26 at 48-49, Brezniak's AMF ¶ 11; ECF No. 25-2, Goguen's AMF ¶ 17. She avers that she "was never made aware there was an exclusion in the policy that would relieve [Homesite] of coverage responsibility and liability in the event the claim related to cold sores and/or HSV-1." ECF No. 27 at 11-12, Brezniak Aff. ¶ 4. Brezniak further states in her affidavit that she "would have found the communicable disease exclusion problematic" and "would have been willing to pay an increased premium or otherwise negotiate over the matter if presented with the opportunity" but that she was "never afforded an opportunity to negotiate the communicable disease exclusion." Id. at ¶¶ 7-8.

After Homesite issued the policy in 2013, Brezniak renewed the policy several times thereafter. ECF No. 25-5 at 113 (2014-15), 117 (2015-2016), 121 (2016 - 2017), 153 (2017 - 2018), 157 (2018 - 2019), 161 (2019 - 2020). ECF No. 25-5 at 159-161. She was insured under the policy during the period of February 9, 2019 to February 9, 2020, the timeframe of the events alleged in the underlying state action. ECF No. 1-2 at 2, ECF No. 22-2 at ¶ 2.

Policy Language

The Policy contains the following pertinent definitions:

1. "Bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death that results....

***

5. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:

a. "Bodily injury"; or

b. "Property damage."

6. "Property damage" means physical injury to, destruction of, or loss of use of tangible property.

ECF No. 1-2 at 5. Under Section II entitled "Liability Coverages," the Policy provides

COVERAGE E – Personal Liability

If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage applies, we will:

1. Pay up to our limit of liability for the damages for which the "insured" is legally liable. Damages include prejudgment interest awarded against the "insured"; and

2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent....

***

SECTION II – EXCLUSIONS

1. Coverage E – Personal Liability ... do[es] not apply to "bodily injury" or "property damage" ....

j . Which arises out of the transmission of a communicable disease by an ‘insured’[.]

ECF No 1-2 at 15-17.

Underlying State Action

In November 2020, Goguen filed a lawsuit against Brezniak and Dominic Goguen, Goguen's husband, in Connecticut state court. ECF No. 22-2 at ¶ 5. On September 23, 2021, Goguen filed the operative Second Amended Complaint, ECF No. 25-4 at 4, alleging the following claims against Brezniak:

-Count 1, entitled "Negligent Transmission of Disease," alleges that Brezniak: was "infected with a disease," "at some time during or prior to July 2019, [Brezniak] had sexual relations with Dominic Goguen on one or more occasions," "had a duty to disclose that she had a disease to her sexual partners, including without limitation, Dominic Goguen," "breached said duty by failing to disclose her infection to Dominic Goguen prior to engaging in sexual intercourse with him," and "knew it was reasonably foreseeable that Dominic Goguen would contract the disease as a result of having sexual intercourse with her" and "unknowingly pass it on to his wife." ECF No. 25-4 at 4, Ct 1 ¶¶ 1 – 10. The complaint further alleges that Dominic Goguen "did in fact contract the disease and subsequently infected his wife" and that Brezniak's "conduct was negligent in that she had sex with Dominic Goguen when she knew she had a disease, when she knew that [Goguen] and her husband continued to be engaged in intimate acts, and when she knew that [Goguen] had no knowledge of the affair and thus no reasonable opportunity to protect herself." ECF No. 25-4 at 5, Ct 1 ¶ 12.

Count 2, entitled "Negligent Failure to Warn," alleges that Brezniak failed to warn Goguen she was at risk of contracting the disease if she had sexual relations with her husband, Dominic Goguen, and that Brezniak also failed to warn Dominic Goguen that she had a disease. ECF No. 25-4 at 6-7, Ct 2 ¶ 12.

Count 3, entitled "Negligent Infliction of Emotional Distress," alleges that: Brezniak's "conduct created an unreasonable risk of causing emotional distress" to Goguen; "[the fact that Goguen] would suffer extreme emotional distress if she was infected with a disease was a reasonably foreseeable consequence of [Brezniak's] decision to have sexual intercourse with Dominic Goguen" and Brezniak "caused [Goguen] to suffer emotional distress and such distress was severe enough to cause [Goguen] bodily harm, as the stress [Goguen] has experienced as a result of having contracted a disease has already resulted in increased frequency and severity of painful outbreaks, and will continue to do so periodically for the rest of [her] life." ECF No. 25-4 at 8-9, Count 3, ¶¶ 12-14.

Count 4, entitled Intentional Infliction of Emotional Distress, alleges that Brezniak knew "it was reasonably foreseeable that Dominic Goguen would contract a disease as a result of having sexual intercourse with her" and that Goguen and her husband "continued to engage in intimate acts" but "failed to inform [him] of her disease." The complaint further alleges that it was "reasonably foreseeable that Dominic Goguen would not only contract, but also unknowingly pass on, the disease to [Goguen]" and that Brezniak's "failure to inform [Goguen] that she was at risk of contracting a disease if she had relations with [Dominic Goguen] constituted extreme and outrageous conduct." ECF No. 25-4 at 9-10, Ct 4 ¶¶ 1-10. The complaint also alleges that Brezniak's failure to inform Dominic Goguen "of her disease after they had sexual intercourse (if not before), so that he could at least take measures to protect [Goguen] from becoming infected with a disease, also constituted extreme and outrageous conduct." ECF No. 25-4 at 10, Ct 4 ¶ 10.

Count 9 alleges as to both Brezniak and Dominic Goguen civil conspiracy to commit assault in the third degree in violation of Conn. Gen. Stat. § 53a-61. Specifically, Goguen alleges that Dominic Goguen and Brezniak "knew that the disease would likely be transmitted to [G...