LaBonte v. Federal Mut. Ins. Co.
| Decision Date | 03 March 1970 |
| Citation | 268 A.2d 663,159 Conn. 252 |
| Court | Connecticut Supreme Court |
| Parties | Thomas LaBONTE et al. v. FEDERAL MUTUAL INSURANCE COMPANY. |
Anthony J. Lasala, New Haven, for appellant (defendant).
William F. Geenty, New Haven, with whom was Leonard A. Ceruzzi, New Haven, for appellees (plaintiffs).
Before ALCORN, HOUSE, COTTER, THIM and SHAPIRO *, JJ.
The instant appeal is before this court on certification from the Appellate Division of the Circuit Court. Originally two cases were involved and were consolidated for purposes of trial, but only the case of LaBonte v. Federal Mutual Insurance Company was certified to this court. No appeal was taken from the judgment rendered in the companion case of Gagliardi v. LaBonte. The sole issue on the present appeal is whether the defendant, the Federal Mutual Insurance Company, is liable to the plaintiffs Albert S. and Marianne L. LaBonte for an amount adjudged against them in favor of Vincent R. Gagliardi in his action against them.
The essential facts are undisputed, and the record discloses that a stipulation by all parties was made a part of the finding. Albert and Marianne LaBonte resided at 121 Alps Road, in Branford, on January 13, 1965, together with Thomas LaBonte, their minor son. On that day, Thomas took a vehicle belonging to Vincent R. Gagliardi without his permission. While driving the vehicle in Milford, Thomas became involved in an accident, which resulted in damage to the Gagliardi vehicle in the amount of $425. Gagliardi subsequently brought an action against Thomas to recover for the damage to the vehicle, and the complaint also named Thomas' parents, Albert and Marianne LaBonte, as defendants under General Statutes § 52-572, the them pertinent provisions of which are set forth in the footnote. 1 Judgment in the case of Gagliardi v. LaBonte was rendered against all the defendants by stipulation in the amount of $425 and costs, and no appeal was taken from that judgment.
At the time of the accident Albert and Marianne LaBonte were insured under a 'homeowner's policy' issued to them by the Federal Mutual Insurance Company. On February 22, 1965, Albert and Marianne LaBonte, hereinafter called the plaintiffs, notified the Federal Mutual Insurance Company, hereinafter called the insurer, of the events leading to the accident and resulting damage to fees. The judgment was affirmed by the Appellate Division of the Circuit Court of May 16, 1968.
'Coverage E' of section 2 of the policy under consideration provides coverage for 'all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage,' and further provides that the insurer 'shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy.' The parties in this case agree that coverage E, when read alone, placed a duty on the insurer to defend the plaintiffs in the Gagliardi case and to satisfy the judgment of $425 against them. The issue before this court on certification of the present case is whether special exclusion (b) of the policy would deny coverage to the plaintiffs' liability in the Gagliardi case. The relevant portion of special exclusion (b) provides that coverage E shall not apply 'to the ownership, maintenance, operation, use loading or unloading of (1) automobiles * * * while away from the premises or the ways immediately adjoining.' It should be noted that although Thomas LaBonte was an insured within the meaning of the policy, the parties stipulated that coverage did not extend to him.
Where, as here, the policy is one of liability rather than indemnity, a duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage. Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 138, 267 A.2d 660; Schurgast v. Schumann, 156 Conn. 471, 489, 242 A.2d 695; Missionaries of Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21; Connecticut Co. v. Mongillo, 144 Conn. 200, 204, 128 A.2d 528. The complaint in the Gagliardi case is the one with which we are concerned, and it contains two counts. The first count is against Thomas LaBonte and thus is not relevant to our consideration of the instant case. The second count names the plaintiffs as defendants and alleges that they are jointly and severally liable with Thomas for the damage to the Gagliardi vehicle by virtue of General Statutes § 52-572. No claim is made that the statute cited is not applicable or that the plaintiffs have any defense to the liability which it creates. The conflict which exists in the instant case centers around what the plaintiffs are liable for and the relationship of their liability to the exclusionary clause quoted above. The plaintiffs contend that they, unlike their son, Thomas, are not liable for any personal activity involving an automobile off the premises but that their liability is vicarious and created solely by statute. In this regard their contentions are correct. At common law parents were not liable for the torts of their children unless they themselves were independently negligent, as where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies. , 39 Am.Jur., Parent and Child, § 55; Restatement (Second), 2 Torts § 316. The statute in question thus creates liability where none existed at common law, and the liability is absolute, in the sense that no negligence need be shown to exist on the part of the parents. If the child is liable, as is admitted in the present case, the parents are jointly and severally liable with him.
The Appellate Division of the Circuit Court concluded that the plaintiffs were not engaged in conduct embraced by the exclusionary clause; that their liability was vicarious and imposed by statute; that no exclusion existed in the policy as to statutory...
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