Middlesex Ins. Co. v. Mara, No. 3:08-CV-490 (CSH).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: HAIGHT, Senior
• Citation: 699 F.Supp.2d 439
• Parties: MIDDLESEX INSURANCE COMPANY, Plaintiff,v.David MARA, Alton Parks, Individually and as Guardian for Jakob Parks and Emmantha Parks, minors, Celese Parks, and Elouise Wrobel, Defendants.
• Docket Number: No. 3:08-CV-490 (CSH).
• Decision Date: 29 March 2010

699 F.Supp.2d 439

MIDDLESEX INSURANCE COMPANY, Plaintiff,
v.
David MARA, Alton Parks, Individually and as Guardian for Jakob Parks and Emmantha Parks, minors, Celese Parks, and Elouise Wrobel, Defendants.

No. 3:08-CV-490 (CSH).

United States District Court,
D. Connecticut.

March 29, 2010.

699 F.Supp.2d 440

COPYRIGHT MATERIAL OMITTED

699 F.Supp.2d 441

Brian Joseph Palmeri, Winget Spadafora & Schwartzberg, Stamford, CT, Stephanie Sweeney Berry, Tang & Maravelis PC, New London, CT, for Plaintiff.

Kathleen D. Stingle, Law Office of Kathleen D. Stingle, Manchester, CT, Stephen S. Chinitz, Steven S. Chinitz & Associates, Bloomfield, CT, for Defendants. ORDER ON MOTION FOR SUMMARY JUDGMENT AND DECLARATORY JUDGMENT HAIGHT, Senior District Judge:

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                |TABLE OF CONTENTS|
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                |I. |INTRODUCTION AND FACTUAL SUMMARY|441|
                |---|--------|---|
                | | | |
                |---|--------|---|
                |II.|DISCUSSION |443|
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                |A.|Jurisdiction |443|
                |--|----------------------|---|
                |B.|Declaratory Judgment |443|
                |--|----------------------|---|
                |C.|Standard for Summary Judgment |444|
                |--|----------------------|---|
                |D.|Choice of Law |445|
                |--|----------------------|---|
                |E.|Insurance Policy Provisions at Issue |446|
                |--|----------------------|---|
                |F.|Construction of Insurance Policy Under Connecticut Law |446|
                |--|----------------------|---|
                |G.|Insurer's Duty to Defend Under Connecticut Law-Determined by the |448|
                | |Allegations in the Underlying Complaint | |
                |--|----------------------|---|
                |H.|Policy Exclusion for “Intentional Acts” |450|
                |--|----------------------|---|
                |I.|Analysis of Factual Allegations in the Parks' Complaint |451|
                |--|----------------------|---|
                |J.|Mara's Objections to Middlesex's Motion for Summary Judgment |453|
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                |1.|Contract Interpretation |453|
                |--|----------------------|---|
                |2.|“Intentional Acts” Exclusion under Connecticut Law |454|
                |--|----------------------|---|
                |3.|Incidents Where Mara Denies Intent |454|
                |--|----------------------|---|
                | |Mara's Contention of Problems and Deficiencies in Pleading-Negligence | |
                |4.|(Ninth Count), Invasion of Privacy (Second and Third Counts) and Libel|456|
                | |(Sixth Count) | |
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                |a.|Negligence (Ninth Count) |456|
                |--|---------------------|---|
                |b.|Invasion of Privacy (Second and Third Counts)|459|
                |--|---------------------|---|
                |c.|Libel (Sixth Count) |459|
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                |K.|No Duty to Indemnify |460|
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                |L.|Request for Reimbursement of Costs and Attorney's Fees|460|
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                |III.|CONCLUSION |461|
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I INTRODUCTION AND FACTUAL SUMMARY

Plaintiff, Middlesex Insurance Company (“plaintiff” or “Middlesex”), commenced this action for a declaratory judgment that it has no duty to defend David Mara (“defendant” or “Mara”) in a separate pending state court civil action (“the underlying action”).¹ Doc. # 1 (Complaint for Declaratory Judgment). In that action, various members of the Parks and Wrobel family (collectively, “the Parks family”), additional defendants herein, seek to recover damages they allegedly sustained as a result of racially-motivated intimidation and harassment by Mara. At all times relevant to the Parks' lawsuit, Mara was insured by Middlesex under a homeowner's insurance policy (hereinafter “policy” or “Middlesex policy”). Doc. 18-1 and 18-2 (Middlesex Insurance Policy Nos. 37-69115-52Q and 37-69115-53Q).² For reasons set forth below,

699 F.Supp.2d 442

Middlesex claims that the policy does not cover the damages allegedly sustained by the Parks family and thus Middlesex has no duty to defend.

Pursuant to Fed.R.Civ.P. 56(c), plaintiff Middlesex moves for summary judgment on its claim for declaratory judgment. The Court summarizes the undisputed facts as follows.³ Alton Parks is an African-American male who resides with his family at 102 South Road in Enfield, Connecticut. ⁴ Doc. # 18-3 (Revised Complaint), First Count, ¶ 1. He resides next door to defendant Mara, a White Caucasian male, who lives at 104 South Road, Enfield, Connecticut. Id., ¶ 6. From the period of July of 2002 till August of 2003, Mara allegedly engaged in a series of intimidating and harassing behaviors that caused the Parks family to initiate the underlying action.

The Revised Complaint in that action (hereinafter “Parks' complaint” or “complaint”) contains ten counts against Mara: (1) intimidation based on bigotry or bias pursuant to Conn. Gen.Stat. § 52-571c; (2) invasion of privacy based on publicity that unreasonably places the other in a false light before the public; (3) invasion of privacy based on unreasonable publicity given to another's private life; (4) invasion of privacy based on unreasonable intrusion in seclusion; (5) voyeurism pursuant to Conn. Gen.Stat. § 53a-189a; (6) libel; (7) civil trespass; (8) private nuisance; (9) negligent infliction of emotional distress; and (10) intentional infliction of emotional distress. Doc. # 18-3 (Revised Complaint).⁵

Middlesex is presently defending Mara in the underlying action under a reservation of rights, claiming that it has no duty to defend. Middlesex now moves this Court for summary judgment, seeking a declaration as to all defendants (i.e., Mara and the Parks family) that it has no duty to defend. Middlesex contends that the Parks' complaint consists entirely of allegations of intentional acts and that such acts are expressly excluded from coverage under the terms of the homeowner's policy. Doc. # 18 (Plaintiff's “Motion For Summary Judgment”).⁶

699 F.Supp.2d 443

By its terms, the Middlesex policy provides liability coverage for “bodily injury” or “property damage” caused by an “occurrence,” which is defined as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in bodily injury or property damage.” Doc. # 18-1, p. 6 (“Definitions,” ¶ 5) and p. 15, Section II.E.; and Doc. # 18-2, p. 13 (“Definitions,” ¶ 5) and p. 21, Section II.E. The policy expressly excludes coverage for bodily injury or property damage “which is expected or intended by the insured.” Doc. # 18-1, p. 16, Section II. 1.a.; and Doc. # 18-2, p. 22, Section II. 1.a. Middlesex points to these key provisions to argue that the policy does not cover the liability alleged in the complaint because each of the ten counts explicitly alleges intentional conduct, causing anticipated, “expected and/or intended,” injurious results to the Parks family. Doc. # 1, ¶ 27. None of the counts allege that the Parks family suffered damages as the result of an accident. Id. at ¶ 26.

Upon review and examination of the policy language, the factual allegations contained in the Parks' complaint, and the undisputed facts, the Court concludes that plaintiff Middlesex has established that it has no duty to defend Mara in the underlying action. There is no genuine issue of material fact and Middlesex is entitled to judgment as a matter of law. Summary judgment will be granted for the reasons set forth below.

II DISCUSSIONA. Jurisdiction

This Court exercises subject matter jurisdiction over the present action based on diversity of citizenship under 28 U.S.C. § 1332. There is complete diversity of citizenship between plaintiff Middlesex and all defendants and the amount in controversy exceeds $75,000.⁷ This Court has jurisdiction to render declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201.

B. Declaratory Judgment

Plaintiff requests that this Court render declaratory judgment under the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 220.⁸ An action for declaratory judgment must meet the “case or controversy” requirement in that it “must be sufficiently real and immediate, allowing specific and conclusive relief ... and be ripe for adjudication.” Pub. Serv. Comm'n v. Wycoff Co., Inc., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952). Under the

699 F.Supp.2d 444

DJA, the district court retains discretion to determine whether it will exercise jurisdiction over the action in question. See, e.g., Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir.2003). In so doing, the court must consider “the litigation as a whole” and whether “practicality and wise judicial administration will predominate.” U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F.Supp.2d 348, 352-53 (E.D.N.Y.2006) (citing Gianni Sport Ltd. v. Metallica, 2000 WL 1773511, at *4 (S.D.N.Y.2000) and Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)).

In the instant case, there is a clearly defined controversy between the parties as to whether the plaintiff insurer must defend Mara in the underlying action. Middlesex is currently defending Mara under a reservation of rights, basically under protest. Declaratory judgment would thus provide the parties with specific, conclusive relief in resolving whether Middlesex has a duty to defend. Furthermore, the issue of coverage under the homeowner's policy may not be properly litigated in the underlying action because Middlesex is not a named party in that suit. “When a determination of the duty to defend can be made and thus clarify the insurer's obligations in the underlying tort action, the DJA is properly invoked.” U.S. Underwriters Ins. Co., 443 F.Supp.2d at 353 (citing Metropolitan Prop. & Liab. Ins. Co. v. Kirkwood, 729 F.2d 61, 63 (1st Cir.1984)). The Court will therefore exercise jurisdiction to render declaratory judgment in this case.

C. Standard for Summary Judgment

A court may properly address the merits of a declaratory judgment action through a motion for summary judgment. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000). Specifically, summary judgment is appropriate to determine whether an insurer owes a duty to defend on the...