Liberty Ins. Corp. v. Johnson

• Docket Number: AC 45933
• Decision Date: 05 December 2023
• Citation: 306 A.3d 1143,222 Conn.App. 656
• Parties: LIBERTY INSURANCE CORPORATION et al. v. Theodore JOHNSON et al.
• Court: Connecticut Court of Appeals

306 A.3d 1143

222 Conn.App. 656

222 Conn.App. 656

LIBERTY INSURANCE CORPORATION et al.

v.Theodore JOHNSON et al.

(AC 45933)

Appellate Court of Connecticut.

Argued October 5, 2023

Officially Released December 5, 2023

Joseph M. Busher, Jr., Wethersfield, for the appellants(defendants).

Kerry R. Callahan, Hartford, with whom was Andrew W. O’Sullivan, for the appellees(plaintiffs).

Suarez, Seeley and Norcott, Js.

SEELEY, J.

The defendants, Theodore Johnson(Theodore) and Kim Johnson(Kim),¹ appeal from the judgment rendered by the trial court following its granting of a motion for summary judgment filed by the plaintiffs, ₆₆₀Liberty Insurance Corporation(Liberty Insurance), Liberty Mutual Insurance Company(Liberty Mutual) and Safeco Insurance Company of Illinois (Safeco).²The primary issue in this appeal concerns whether the trial court properly determined that there was no genuine issue of material fact that the plaintiffs do not have a duty to defend the defendants from claims asserted against them in a separate action that stemmed from a motor vehicle accident in which the defendants’ son, Aaron Johnson(Aaron), was driving a motor vehicle owned by Theodore when he lost control of the vehicle and struck a telephone pole, causing serious injuries to a passenger in the vehicle, Jordan Torres.We affirm the judgment of the court.

The record reveals the following undisputed facts and procedural history.At some point prior to 1:33 a.m. on December 26, 2019, Aaron left the defendants’ house and operated a 1997 Audi A4 2.8 Quattro (Audi) owned by Theodore.Torres was a passenger in the Audi at the time.As Aaron attempted to navigate a curve, he lost control of the Audi, crossed into the westbound lane of traffic, and left the roadway, striking a telephone pole.

Torres, who sustained personal injuries in the accident, subsequently commenced an action, (Torres action) against a bar in Newington and its backer, as well as Theodore, Kim and Aaron.In the Torres action, Torres alleged that, on December 25, 2019, Aaron, a minor, consumed alcohol at the bar, after which he went to the defendants’ house in Glastonbury, where he was visibly intoxicated and consumed more alcohol.Torres alleged claims against Theodore for negligence and vicarious liability³ related to the negligence of ₆₆₁Aaron.The negli- gence claim against Theodore alleges that the accident and Torres’ resulting "injuries, damages, and losses … were caused by the negligence of [Theodore] in one or more of the following ways: (a) In that [Theodore] allowed and/or permitted [Aaron] to consume alcohol and/or liquor at his home despite [Aaron] being a minor; (b) in that [Theodore] allowed access to. and/or furnished alcohol to a minor, [Aaron]; (c) in that [Theodore] allowed [Aaron] to leave his home despite his intoxication; (d) in that [Theodore] allowed [Aaron] to operate a motor vehicle he owned despite his intoxication; (e) in that [Theodore] allowed [Aaron] to operate his vehicle despite his intoxication; (f) in that [Theodore] allowed [Aaron] to operate his vehicle despite lacking competence on proper and safe operation of said vehicle; (g) in that [Theodore] allowed [Aaron] to operate his vehicle in such a way as to endanger the well-being of [Torres] as his passenger; (h) in that [Theodore] permitted [Aaron], a minor, to possess alcohol and/or liquor in his home and failed to take reasonable efforts to halt such possession and/or consumption in violation of [General Statutes] § 30-89a;[and](i) in that [Theodore] failed to supervise [Aaron] and his guests while in his home."Torres also asserted a claim of negligence against Kim, which is nearly identical to the one against Theodore except that it excludes any allegation that she owned the vehicle driven by Aaron.

Following the commencement of the Torres action, the defendants sought coverage from the plaintiffs for Torres’ claims under three policies of insurance: (1) a homeowners insurance policy issued to the defendants by Liberty Insurance (homeowners policy); (2) an automobile insurance policy issued to the defendants by Safeco (automobile policy); and (3) an umbrella insurance policy issued to the defendants by Liberty Mutual (umbrella policy).Thereafter, the plaintiffs commenced the present action seeking a judgment declaring that the plaintiffs are not obligated to defend or indemnify the defendants with respect to the Torres action.

The plaintiffs subsequently filed a motion for summary judgment.In support thereof, the plaintiffs argued that no reasonable fact finder could conclude that they have a duty to defend or indemnify the defendants in the Torres action because, in that action, Torres did not seek damages covered by any of the policies of insurance issued to the defendants by the plaintiffs.Specifically, they based that argument on an exclusion in the homeowners policy that excludes coverage for " ‘bodily injury’ or ‘property damage’ … arising out of (1)[t]he ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an ‘insured’[motor vehicle exclusion] …. " Thus, according to the plaintiffs, because the claims asserted against the defendants in the Torres action arose out of Theodore’s ownership of the Audi, as well as Aaron’s negligent operation of that vehicle, the motor vehicle exclusion barred coverage under the homeowners policy.

With respect to the automobile policy, the plaintiffs asserted that the policy’s coverage for bodily injury for the Audi had been cancelled prior to the date of the accident, at the request of the defendants.The plaintiffs provided documentation demonstrating that coverage for bodily injury and property damage, had been deleted from the automobile policy, effective December 12, 2019, including a letter from Safeco to the defendants confirming their change in coverage and an affidavit ₆₆₃attesting to the accuracy of the letter and its contents.Finally, as to the umbrella policy, the plaintiffs argued that it "does not afford coverage against liability for bodily injury arising out of the use of a motor vehicle owned by any insured unless the liability is covered by an underlying policy."That is, because there is no underlying coverage under the homeowners or automobile policies, there can be no coverage under the umbrella policy.

The defendants filed a memorandum of law in opposition to the motion for summary judgment, arguing that, because some of the claims against the defendants in the Torres action allege negligence separate and apart from the motor vehicle accident, their alleged negligence does not fall within the scope of the motor vehicle exclusion relied on by the plaintiffs and, thus, there are claims against the defendants in the Torres action that fall within the language providing coverage pursuant to the homeowners and umbrella policies.Therefore, "a reasonable policyholder could and would likely reasonably believe that the conduct [that]they were alleged to have engaged in would be covered under the language of the homeowners [policy] and thus the umbrella policy."The defendants argued further that, because "there are one or more covered claims, the [defendants] are entitled to a defense in the [Torres action] … [and questions of fact remain] as to whether they are entitled to indemnity under the applicable policies."

In an order dated October 3, 2022, the court granted the plaintiffs’ motion for summary judgment.In its decision, the court first addressed the motor vehicle exclusion in the homeowners policy, concluding that, because "the claims for bodily injury [in the Torres action] arise from the ownership and use of [Theodore’s] vehicle … the motor vehicle exclusion under the homeowners policy applies.Accordingly, coverage ₆₆₄for the bodily injury claims brought by Torres against Theodore and Kim … arising from their son’s negligent operation of a motor vehicle is barred under this exclusion in their homeowners policy.Similarly, the defendants’ homeowners policy … contains an exclusion for claims for vicarious liability, which the court concludes bars coverage for vicarious liability claims against [Theodore] for his son’s actions."The court next addressed the automobile policy, which it found had been cancelled, at the defendants’ request, as of December 11, 2019, prior to the date of the accident.In light of its conclusion that the motor vehicle exclusion in the homeowners policy barred coverage and its finding that the automobile policy had been cancelled prior to the date of the accident, the court concluded that "there was no underlying policy to support coverage under the defendants’ umbrella policy, which excludes coverage for bodily injury claims involving the ownership or use of a vehicle owned by the insured which is not covered by an underlying policy or by other valid and collectible insurance.’"⁴

From the judgment rendered in favor of the plaintiffs, the defendants appealed to this court.Additional facts and procedural history will be set forth as necessary.

[1-6] Before we address the merits of the appeal, we set forth our standard of review and well settled principles governing the interpretation of insurance contracts.₆₆₅"The standard of review of a trial court’s decision granting [a motion for] summary judgment is well, established.Practice Book§ 17-49 provides that 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.In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.… The courts are in entire agreement that the moving party … has the burden of showing the absence of any genuine issue as to all the material facts ….When...