Marco v. Starr Indem. & Liab. Co.

• Citation: 256 A.3d 184,205 Conn.App. 111
• Decision Date: 01 June 2021
• Docket Number: AC 43376
• Parties: Lindsey MARCO v. STARR INDEMNITY AND LIABILITY COMPANY
• Court: Appellate Court of Connecticut

205 Conn.App. 111

256 A.3d 184

Lindsey MARCO

v.STARR INDEMNITY AND LIABILITY COMPANY

AC 43376

Appellate Court of Connecticut.

Argued February 16, 2021

Officially released June 1, 2021

Joseph Mulshine, East Haven, for the appellant (plaintiff).

Melissa Brill, pro hac vice, New York, NY, and Raymond J. Carta, Stamford, with whom, on the brief, were Laura Dowgin, New York, NY, pro hac vice, and John W. Cannavino, Jr., Stamford, for the appellee (defendant).

Prescott, Cradle and DiPentima, Js.

CRADLE, J.

The plaintiff, Lindsey Marco, appeals from the judgment rendered in favor of the defendant, Starr Indemnity and Liability Company, on the ground that the defendant had no duty to defend its insured, Copa Entertainment Group, LLC (Copa Entertainment), the owner and operator of Zen Bar (bar), the location where the plaintiff had sustained injuries for which she had been awarded damages by an arbitrator in a separate action (underlying action). On appeal, the plaintiff claims that the trial court (1) erred in ordering a court trial on the legal issue of whether the defendant had a duty to defend Copa Entertainment when summary judgment previously had been denied on that issue, (2) improperly deprived her of a jury trial on the issue of whether the defendant had a duty to defend its insured, and (3) should have recused itself from this case to avoid the appearance of impropriety after it was involved in pretrial settlement negotiations. We affirm the judgment of the trial court.¹

The following procedural history is relevant to the plaintiff's claims on appeal. On June 23, 2014, the plaintiff filed an action against, inter alia, Copa Entertainment, seeking to recover damages for injuries that she sustained on May 31, 2013, while she was a patron at the bar. In her initial complaint, the plaintiff alleged that, on that night, "numerous altercations broke out in various places inside [the bar] and eventually the altercations grew and spilled out of the building and into the parking lot surrounding [the bar], where the plaintiff ... was viciously and severely physically assaulted, punched, kicked and dragged so as to cause her to suffer extensive personal injuries ...." In that complaint, the plaintiff specifically named four individuals and one John Doe, who, she alleged, "repeatedly struck [her], about the head, face and body, thereby knocking her to the ground, rendering her unconscious and causing her to suffer severe and permanent personal injuries." On October 25, 2015, the plaintiff amended her complaint, alleging that she had sustained her injuries when she was "negligently impacted by a person, persons or object and/or viciously and severely trampled, physically assaulted, punched, kicked and dragged ...." The names of the specific individuals who allegedly injured the plaintiff were omitted from the amended complaint.

The plaintiff's claims against Copa Entertainment, which sounded in negligent security and recklessness, were submitted to an arbitrator. The arbitrator found that the plaintiff's injuries were "proximately caused by ... Copa Entertainment" and awarded her $131,500 in damages. The arbitration award was thereafter confirmed by the Superior Court.

After the arbitration award was confirmed, Copa Entertainment assigned to the plaintiff its rights under its insurance policy issued by the defendant. The general liability policy that the defendant issued to Copa Entertainment contained an exclusion for injuries arising out of assault and battery. The defendant relied on that exclusion in declining to defend or indemnify Copa Entertainment in the underlying action.

On July 17, 2017, the plaintiff commenced this action against the defendant, based on the defendant's failure to defend or indemnify Copa Entertainment in the underlying action, alleging breach of the insurance contract, breach of the covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq., and common-law bad faith. On May 22, 2018, the defendant filed a motion for summary judgment on the ground that it did not owe Copa Entertainment a duty to defend because the plaintiff's claim was barred by the assault and battery exclusion of the insurance policy. The plaintiff filed an opposition to the defendant's motion for summary judgment, and the court, Swienton, J ., heard argument from the parties.

On May 22, 2018, Judge Swienton denied the defendant's motion for summary judgment. The court explained, inter alia: "The motion for summary judgment at this stage is a substitute for the declaratory judgment action which the defendant declined to pursue. [The defendant] now is asking the court to make a determination based upon a number of police reports—which the court notes have not been authenticated—that the incident in which the plaintiff was injured is not covered under the policy insuring [Copa Entertainment]. The court has reviewed the entire record presented and finds that there remain genuine issues of material fact in the present case. One of these issues is whether [the defendant] has a contractual obligation to indemnify [Copa Entertainment] in the first action based upon whether the injuries the plaintiff sustained resulted only from an assault and battery. The court cannot decide these disputed factual issues on a motion for summary judgment."

On September 27, 2018, the plaintiff filed a motion to quash and a motion for protective order, seeking to prevent the defendant from deposing her in this case on the ground that, "in the present contract action, the only pieces of evidence to be considered by the jury are the complaints and the insurance policy in effect at the time of loss." On October 15, 2018, the court, J. Moore, J ., heard oral argument from the parties on these motions and other discovery motions, and the plaintiff reiterated her contention that only the complaint and the insurance policy should be considered in this case. The defendant agreed. Accordingly, Judge Moore issued the following order: "Based upon the representations of the plaintiff's counsel made today during the hearing on this and related motions, the discovery at issue is not reasonably calculated to lead to the discovery of admissible evidence at trial. If the presentation of the plaintiff's case later involves an attempt to introduce factual evidence outside of the evidence discussed during the hearing today, e.g., evidence consisting of both underlying, operative complaints and the insurance policy at issue, the defendant's attorney shall reclaim this motion and the court will seriously reconsider this motion."

On November 23, 2018, the defendant filed a motion to strike the plaintiff's claim for a jury trial, which she had filed on September 6, 2017, on the ground that there were no factual issues for the jury to decide, as the duty to defend was purely a legal question for resolution by the court. The plaintiff filed an objection, arguing that the court had denied summary judgment on the defendant's claim that it had no duty to defend on the ground that issues of fact existed and that she was entitled to have a jury trial on those factual issues. In her objection, the plaintiff also argued that she was entitled to a directed verdict on the duty to defend issue based on the prior denial of summary judgment. Specifically, she argued: "The defendant, by way of the court's denial of [its] motion for summary judgment, has lost on that issue and that issue should not be allowed to be relitigated by anyone and judgment on that issue should be directed to the plaintiff with a finding that the defendant breached its duty to defend ...." The court heard oral argument on December 10, 2018.²

On December 12, 2018, the court entered the following order: " Practice Book § 15-1 provides that in all cases, whether claimed as jury cases or court cases, the court may order that one or more of the issues be tried before the others. Practice Book § 16-9 provides that, even where [there] are mixed questions of law and fact, the court ‘shall decide all issues of law and all questions of law ....’ Our Supreme Court has held that the ‘question of whether an insurer has a duty to defend its insured is purely a question of law ....’ Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co ., 254 Conn. 387, 395, [757 A.2d 1074 (2000)].

* * *

"Despite the plaintiff's arguments to the contrary, even though the defendant raised both the duty to defend and the duty to indemnify in its motion for summary judgment, Judge Swienton did not decide whether the defendant breached its duty to defend in the underlying case. First, the plaintiff did not move for summary judgment itself. Second, Judge Swienton found an issue of fact in denying the defendant's motion for summary judgment and cited the defendant's duty to indemnify. As set forth above, our Supreme Court has held clearly that an insured's duty to defend is a purely legal question, e.g., one that could not have involved a question of fact. For the reasons set forth above, the court orders that this trial ... be staged so that the purely legal question of the defendant's duty to defend its insured in the underlying case is considered first by the court. The allegations of the operative complaint at the time of the award and judgment must be compared to the language of the policy by a court. ... Since this court has attempted to settle this case at a pretrial, this court will request the presiding civil judge to assign it to another judge for the initial determination of whether the defendant had a duty to defend its insured." (Citation omitted.)

On December 19, 2018, the plaintiff filed a motion to reconsider on the ground that "[t]his matter has been fully, exhaustively litigated in its entirety." In support of that argument, the plaintiff referred to...