Kelly v. Figueiredo

• Decision Date: 21 July 1992
• Docket Number: No. 14433,14433
• Citation: 223 Conn. 31,610 A.2d 1296
• Court: Connecticut Supreme Court
• Parties: Daniel J. KELLY v. Americo FIGUEIREDO et al.

Page 1296

610 A.2d 1296

223 Conn. 31

Daniel J. KELLY v. Americo FIGUEIREDO et al.

No. 14433.

Supreme Court of Connecticut.

Argued June 5, 1992.

Decided July 21, 1992.

Joseph T. Sweeney, with whom was James M. Sconzo, Hartford, for appellants (defendants-third party plaintiffs).

Richard C. Robinson, with whom was Jeffery P. Apuzzo, Hartford, for the appellee (third party defendant).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether an exclusion clause in a liquor seller liability insurance policy is sufficiently ambiguous so that it should be read to provide coverage for damages caused by an assault and battery by an intoxicated patron. The defendants, Americo Figueiredo, permittee of the Madison Cafe in Hartford, and its backer, Tomar, Inc., (the insured) sought to implead the Calvert Insurance Company (Calvert) as a third party defendant in a civil action brought against the insured by the plaintiff, Daniel J. Kelly. Calvert filed a motion to strike the third party complaint, which was granted by the trial court, Stengel, J. The trial court, M. Hennessey, J., subsequently rendered judgment in favor of Calvert on the third party complaint. The insured appealed to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm.

In reviewing the trial court's judgment following the granting of Calvert's motion to strike, we "must take the facts to be those alleged in the [third party] plaintiff's complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency." Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987). Accordingly, we assume the following facts as alleged in the insured's third party complaint. In January, 1990, Calvert issued to the insured a liquor seller liability insurance policy, effective from January 5, 1990 to January 5, 1991. Under the policy, Calvert agreed to pay damages and to provide the services of defense counsel if the insured were charged with liability under the Connecticut Liquor Control Act, General Statutes §§ 30-1 through 30-113, for injuries sustained by any person as a result of the alleged selling or giving of any alcoholic beverage at the Madison Cafe. The policy included the following exclusionary endorsement: "ASSAULT AND BATTERY EXCLUSION: It is agreed that the insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person."

On January 14, 1991, Daniel J. Kelly filed a substituted complaint against the insured, pursuant to the Connecticut Dram Shop Act, General Statutes § 30-102. ¹ Kelly alleged that he had sustained injuries on May 22, 1990, when he was struck and stabbed by a Madison Cafe patron to whom the insured had sold alcohol while that patron was intoxicated. ² The complaint did not allege that the patron who had struck Kelly was attempting to prevent or suppress an assault and battery.

On June 13, 1991, the insured filed a revised third party complaint against Calvert, seeking to force Calvert to defend the insured against Kelly's claim and to indemnify it in case of any liability. Thereafter, Calvert successfully moved to strike the third party complaint on the ground that the policy's assault and battery exclusion relieved Calvert of any obligation to defend or indemnify the insured in the circumstances of this case.

The insured appealed from the ensuing judgment in favor of Calvert, raising the following three claims: (1) the exclusion clause in Calvert's liquor seller liability insurance policy, properly construed, does not exclude coverage for the assault and battery alleged by Kelly; (2) the exclusion clause should be construed in favor of coverage because the clause is ambiguous; and (3) public policy considerations require a construction of the exclusion clause to permit coverage for Kelly's claim.

I

The insured maintains first that the assault and battery exclusion clause by its own terms "plainly and clearly" imposes liability on Calvert for the dram shop claim raised by Kelly. Specifically, the insured asserts that the clause at issue excludes coverage not for generic assaults and batteries, but only for assaults and batteries taking place "in connection with the prevention or suppression of" other assaults and batteries. Calvert argues, on the other hand, that the exclusion clause applies to all assaults and batteries. We agree with Calvert's interpretation of the exclusion clause.

Deciding the scope of the exclusion clause "involves a determination of what coverage the insured expected to receive and what coverage the insurer expected to provide as disclosed by the language of the policy." Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 60, 588 A.2d 138 (1991); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990); Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283, 278 A.2d 796 (1971). The words of the policy must be accorded their natural and ordinary meaning. Hammer v. Lumberman's Mutual Casualty Co., supra, 214 Conn. at 583, 573 A.2d 699. "[C]ourts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Id.

The exclusion clause provides in relevant part: "the insurance does not apply to bodily injury or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts...." The insured maintains that the prepositional phrase, "in connection with the prevention or suppression of such acts," modifies both "assault and battery" and "any act or omission." It argues, therefore, that assaults and batteries are excluded from coverage only when committed in the prevention or suppression of other assaults and batteries.

The repetition of the words "out of" before "assault and battery" and before "any act or omission" forecloses the insured's construction of the clause. If we were to adopt that interpretation, the second use of "out of" would be rendered superfluous. "If it is reasonably possible to do so, every provision of an insurance policy must be given operative effect." Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 376, 593 A.2d 498 (1991); A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966). The policy therefore does not "plainly and clearly" provide coverage to the insured on Kelly's assault and battery claim. Cf. Gregory v. Western World Ins. Co., 481 So.2d 878, 881 (Ala.1985) (construing an identical exclusion clause and stating that the clause applies to assaults and batteries); Thornton v. Illinois Founders Ins. Co., 84 Ill.2d 365, 371, 49 Ill.Dec. 724, 418 N.E.2d 744 (1981) (construing an identical exclusion clause and stating that "[i]t is clear that, under the policy, acts constituting battery are excluded" from coverage). On its face, the exclusion clause does not cover Kelly's claim against the insured.

II

The insured next claims, in the alternative, that even if the policy does not clearly include coverage for assaults and batteries, the exclusion clause is at least ambiguous and therefore must be construed against Calvert, the drafter of the policy. The insured asserts that the exclusion clause's ambiguity is apparent because the parties contend for different interpretations of its language. We hold, however, that the exclusion clause unambiguously relieves Calvert of any obligation to defend or indemnify the insured in connection with Kelly's dram shop claim.

Under well-established principles of contract construction, we must "construe the terms of an insurance policy in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy." Streitweiser v. Middlesex Mutual Assurance Co., supra, 219 Conn. at 375, 593 A.2d 498; see also Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987); LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). "A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous." Streitweiser v. Middlesex Mutual Assurance Co., supra, 219 Conn. at 375, 593 A.2d 498. The fact that the parties advocate different meanings of the exclusion clause "does not necessitate a conclusion that the language is ambiguous." Aetna Life & Casualty Co. v. Bulaong, supra, 218 Conn. at 60, 588 A.2d 138; Marcolini v. Allstate Ins. Co., supra, 160 Conn. at 284, 278 A.2d 796; compare Beach v. Middlesex Mutual Assurance Co., supra, 205 Conn. at 251, 532 A.2d 1297 (finding ambiguity in an insurance policy where two plausible alternate readings were equally reasonable).

The exclusion clause is not ambiguous. The words at issue do not have multiple definitions. See Beach v. Middlesex Mutual Assurance Co., supra, at 251, 532 A.2d 1297 (finding the word "collapse" ambiguous as used in an insurance policy because it may mean "a catastrophic breakdown" or "a breakdown or loss of structural strength"). We can say with a high degree of certainty that the exclusion clause was intended to exclude all assaults and batteries from coverage. See Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 514, 442 A.2d 920 (1982) (finding ambiguity where "we cannot say with any degree of certainty [what the clause] was intended to exclude"). The exclusion clause therefore unambiguously relieves Calvert of any obligation to defend or indemnify the insured in ...