Misiti, LLC v. Travelers Prop. Cas. Co. of America

• Decision Date: 20 December 2011
• Docket Number: No. 33243.,33243.
• Citation: 33 A.3d 783,132 Conn.App. 629
• Court: Connecticut Court of Appeals
• Parties: MISITI, LLC, et al. v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA et al.

132 Conn.App. 629

33 A.3d 783

MISITI, LLC, et al.

v.TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA et al.

No. 33243.

Appellate Court of Connecticut.

Argued Oct. 20, 2011.Decided Dec. 20, 2011.

Paul G. Roche, Avon, for the appellant (named defendant).

Jack G. Steigelfest, Hartford, for the appellees (plaintiffs).

ROBINSON, BEAR and DUPONT, Js.

BEAR, J.

In this declaratory judgment action, the defendant, Travelers Property Casualty Company of America (Travelers),¹ appeals both from the trial court's granting of summary judgment for the plaintiffs, Misiti, LLC (Misiti), and the Netherlands Insurance Company (Netherlands), and from the denial of its own motion for summary judgment.² On appeal, Travelers claims that the court improperly construed the insurance contract at issue in this case and determined that Travelers had a duty to defend Misiti in an underlying action. We agree and, accordingly, reverse the judgment of the trial court.

The parties submitted to the trial court a stipulation, which contains the following undisputed facts: ³

“1. [The] plaintiffs seek the costs of defense and indemnity from Travelers with respect to the claims in an underlying lawsuit brought by Sarah and Geoffrey Middeleer ⁴ against Misiti.... That underlying suit has now settled.

“2. The third revised amended complaint in the underlying action ... contains the following pertinent allegations:

“2. Misiti ... was at all times relevant herein and is the owner of record of the real property, structures and improvements situated at, behind and adjacent to the commercial buildings located at 1, 3 and 5 Glen Road, Sandy Hook, Connecticut ( [Misiti's] ‘premises').

“3. A portion of [Misiti's] premises ... consisted of a steep retaining wall of over six (6) feet in height. Beneath the retaining wall located on [Misiti's] premises is the riverbed of the Pootatuck River.

“4. There was at all times relevant herein and is a wood guard consisting of a wooden fence of split-rail design located along the top of the above-described retaining wall.

“5. On July 22, 2008, [Middleleer] was a business invitee upon [Misiti's] premises.

“6. While ... Middeleer leaned against the top rail of the wood guard, the top rail collapsed into pieces, causing [her] to fall off the retaining wall onto the rocks situated on the riverbed located below the retaining wall....

“9. The purpose of [Misiti's] premises involved persons being invited onto [them] to do business with its commercial tenants.

“10. ... Misiti ... managed, operated, possessed and/or controlled the premises where the injury occurred at all times relevant herein.

“3. Travelers issued [an insurance policy] to Church Hill Tavern LLC dba Red Brick Tavern [ (tavern) ], 1 Glen Road, Sandy Hook ... for the period May 3, 2008 to May 3, 2009.

“4. The policy contains the following additional insured endorsement that is the subject of the parties' motions [for summary judgment]:

‘ADDITONAL INSURED—MANAGERS OR LESSORS OF PREMISES

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

1. Designation of Premises (Part Leased to You):

1 GLEN ROAD

SANDY HOOK CT 06482

2. Name of Person or Organization (Additional Insured):

MISITI, LLC

PO BOX 69

NEWTOWN CT 06470

3. Additional Premium: INCLUDED

(If no entry appears above, the information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions:

This insurance does not apply to:

1. Any “occurrence” which takes place after you cease to be a tenant in that premises.

2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule.' ...

“5. The parties agree that the following language from the Policy's additional insured endorsement determines whether Misiti's status as an additional insured under the Travelers policy extends to the claim of ... Middeleer: ‘WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you [the tavern].’

“6. The parties dispute the legal question of the extent to which the court should consider facts outside the pleadings in deciding the cross motions for summary judgment, but do not dispute those facts. The remaining paragraphs of this stipulation are derived from facts outside the pleadings, the sources for which are exhibits attached to the parties' summary judgment papers.

“7. ... Middeleer met her boss in the early evening of July 22, 2008, at Mocha Cafe', located at 3 Glen Road, part of Misiti's property, to prepare for a business presentation related to their work in the field of landscape design.

“8. Middeleer left her car in a parking lot on the Misiti property while she went to the business presentation.

“9. After the business presentation, Middeleer and her boss went back to the Misiti property where her car was located and decided to get something to eat at [the tavern] at 1 Glen Road....

“10. Middeleer ate food and drank wine at the tavern.

“11. Upon leaving the tavern, Middeleer and her boss walked down a path along a river toward the parking area.

“12. As they approached the parking area, Middeleer and her boss did not take the branch of the path that led directly to where her car was parked, instead [they] continued to walk along the river in an open area beside the parking area, past a stage area, to look at the river and to look at a waterfall.

“13. Middeleer and her boss walked along the river until they reached the location of her fall through a fence.

“14. At the location of the fall, Middeleer was not on the paved path.

“15. Middeleer did not fall in the parking lot.

“16. The fall occurred on [Misiti's] ‘premises,’ that is, on 1, 3, and 5 Glen Road, as defined in the Middeleer complaint.

“17. Misiti owns the commercial buildings and property located at 1, 3 and 5 Glen Road, Sandy Hook, Connecticut.

“18. At the time of the incident, the [tavern] operated in a building located at 1 Glen Road pursuant to a lease with Misiti.

“19. The premises leased by Misiti to the tavern were the first floor of 1 Glen Road, together with a parking area to be used in common with others.

“20. The fence through which Middeleer fell was not located on the part of [Misiti's] premises leased to the tavern.

“21. The tavern had no control over and was not responsible for maintenance of the fence that gave way.

“22. The Newtown police department's medical assist report states, in part, the following: ‘[Middeleer's boss] stated that he and Middeleer had been walking through the park discussing potential renovations to the property after a business meeting at the [tavern]. He stated that when Middeleer leaned against the top rail of the wooden fence it broke and she fell down into the water.’

“23. A Microsoft photo of the Misiti property, showing the tavern, parking lots and the path along the river, contains a distance measure showing the distance from the tavern, and from the parking area, to the site of the accident.

“24. A Google photo of the Misiti property area, which was an exhibit to the Middeleer deposition in the underlying case, and was an exhibit to Travelers' motion, shows the tavern, parking lots and the path along the river.

“25. A map of the Misiti property area, which was an exhibit to the Middeleer deposition in the underlying case, and was an exhibit to Travelers' motion, shows the tavern, parking lots and the path along the river.

“The foregoing facts are hereby agreed to by the parties and stipulated to as not being in dispute.” (Citation omitted.)

We further set forth the relevant procedural history of this case, as explained by the trial court. “[T]he plaintiffs ... commenced this action against the defendants ⁵ ... seeking a determination that Misiti is an additional insured entitled to the protection of an insurance policy issued by Travelers with respect to an underlying action against Misiti brought by [the Middeleers]. Netherlands provided a defense to Misiti with respect to that underlying action. Subsequent to the filing of the present action, Netherlands settled [the] Middeleers' underlying claim within the limits of its policy.... Netherlands seeks reimbursement from Travelers for its defense costs and the amount paid in indemnification to settle the claim against Misiti....

“Travelers filed the operative motion for summary judgment on the ground that there is no coverage for ... Netherlands and Misiti based on the policy's additional insured endorsement, which provides for coverage ‘only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tavern].’ ... Netherlands and Misiti filed the operative objection to Travelers' motion for summary judgment and cross motion for partial judgment as to liability. It is ... Netherlands' and Misiti's position that the underlying incident is one ‘arising out of ‘[the tavern's] use of that part of [Misiti's] premises leased to it that [implicated] Travelers' ... duty to defend the underlying Middeleer action, and that as a result of its wrongful failure to do so, Travelers is liable to indemnify Netherlands up to the limits of its policy.’'

On the basis of the aforementioned facts, the court determined that Travelers had a duty to defend Misiti in the underlying action and, therefore, rendered judgment in favor of the plaintiffs. This appeal followed.

Travelers claims on appeal that the court improperly...