Moore v. Continental Casualty Co.

• Decision Date: 13 March 2000
• Docket Number: (SC 16100)
• Citation: 252 Conn. 405,746 A.2d 1252
• Court: Connecticut Supreme Court
• Parties: GARY C. MOORE v. CONTINENTAL CASUALTY COMPANY

252 Conn. 405

746 A.2d 1252

GARY C. MOORE v. CONTINENTAL CASUALTY COMPANY

(SC 16100)

Supreme Court of Connecticut.

Argued December 7, 1999.

Officially released March 13, 2000¹.

Borden, Norcott, Katz, Palmer and Peters, Js.

Gerald T. Giaimo, for the appellant (plaintiff).

Kerry R. Callahan, with whom, on the brief, were James N. Tallberg and Karen K. Clark, for the appellee (defendant).

Kathryn Calibey filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Opinion

BORDEN, J.

The sole issue in this certified appeal is whether allegations of emotional distress arising out of economic loss suffice to trigger a duty to defend under a homeowner's insurance policy covering liability for "bodily harm, sickness or disease...." Following our grant of certification, the plaintiff, Gary C. Moore, appeals from the judgment of the Appellate Court affirming the trial court's grant of summary judgment in favor of the defendant, Continental Casualty Company.² We conclude that the allegations in question do not trigger the defendant's duty to defend under the policy.³ Accordingly, we affirm the judgment of the Appellate Court.

The plaintiff is the insured under a homeowner's insurance policy issued by the defendant. The plaintiff's sister, Gail Standish, brought an action against the plaintiff by way of a complaint that alleged conversion, fraud, intentional infliction of emotional distress and negligent infliction of emotional distress. Standish is the joint owner of property with her mother, Coral Moore. Standish alleged that the plaintiff had obtained a power of attorney from Coral Moore and herself and, together with Richard Stapleton, her attorney, had obtained a $150,000 line of credit that was secured by the jointly owned property. Standish alleged that, as a result of the plaintiff's actions, she had suffered financial loss in the amount of $150,000, and also had suffered emotional distress, stress and anxiety as a result of that financial loss.

Four of the seven counts in the complaint filed by Standish are directed at the plaintiff. Three of those counts allege reckless or intentional acts: count four alleges that the plaintiff used a line of credit in violation of General Statutes § 52-564; count five alleges that the plaintiff, acting as Standish's fiduciary, wantonly and recklessly or intentionally made material omissions and misrepresentations regarding her line of equity; and, count six alleges intentional infliction of emotional distress. It is undisputed that these three counts do not trigger a duty to defend under the plaintiff's homeowner's insurance policy because they are excluded under the policy's "expected or intended" exclusion. Count seven, however, alleges negligent infliction of emotional harm.⁴

The plaintiff brought this declaratory judgment action against the defendant seeking an adjudication that it had a duty to defend⁵ him against the complaint brought by Standish.⁶ The parties presented the case to the trial court by way of cross motions for summary judgment. The court granted the defendant's motion and denied the plaintiffs motion, and rendered judgment for the defendant. The plaintiff appealed from the trial court's judgment to the Appellate Court, which affirmed the judgment. Moore v. Continental Casualty Co., 52 Conn. App. 287,288, 725 A.2d 994 (1999). This appeal followed.

Conceding that there are no disputed questions of fact, the plaintiff claims that the defendant had a duty to defend because the insurance policy defines "bodily injury" broadly enough to include emotional distress. We disagree.

"[C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo." (Internal quotation marks omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 30, 688 A.2d 319 (1997). "The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage." (Internal quotation marks omitted.) Flint v. Universal Machine Co., 238 Conn. 637, 646, 679 A.2d 929 (1996). "If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." (Internal quotation marks omitted.) Schwartz v. Stephenson, 37 Conn. App. 581, 585, 657 A.2d 244 (1995). Although policy exclusions are strictly construed in favor of the insured; Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 770, 653 A.2d 122 (1995); "the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., supra, 30. In the present case, both parties contend that the language in question unambiguously supports their respective interpretations. We agree with the defendant's interpretation. Applying the appropriate standard of review to the allegations of the complaint and the language of the policy, we conclude that these allegations do not trigger the defendant's duty to defend. An allegation of emotional distress arising out of economic loss, as alleged in this case, does not trigger a duty to defend under the coverage for "`[b]odily [i]njury,'" which is defined in the insurance policy as "bodily harm, sickness or disease ...."

We begin with the language of the insurance policy. The personal liability coverage provision of the plaintiffs policy provides that the defendant would defend and indemnify the plaintiff "[i]f a claim [is made] or [a] suit is brought against you or any covered person for the following: 1. Personal Injury; 2. Bodily Injury; 3. Property Damage...." (Emphasis added.) The definitional section of the plaintiffs homeowner's insurance policy provides in relevant part: "4. `Bodily Injury' means bodily harm, sickness or disease, except any communicable disease, including required care, loss of services and death resulting therefrom.... 12. `Personal Injury' means libel, slander, false arrest, wrongful detention, wrongful entry, malicious prosecution, invasion of privacy or defamation of character. 13. `Property Damage' means physical injury to or destruction of property including loss of use of the property...."

First, the word bodily as ordinarily used in the English language strongly suggests something physical and corporeal, as opposed to something purely emotional. Webster's Third New International Dictionary confirms this notion, and associates the term bodily with the physical aspects of the human body, and contrasts it with the nonphysical aspects of the human experience such as the mental and spiritual.⁷ In the insurance policy, the word bodily is used as an adjective to modify the terms injury, harm, sickness and disease. Including purely emotional harm arising out of economic loss as a form of bodily injury would be tantamount to defining the term bodily injury with an antonym. At the very least, such a construction would render the term bodily superfluous as an adjective modifying the term injury. It is fair to infer that the use of the term bodily was employed in the policy both accurately and purposefully.

Second, the structure of the insurance policy strongly suggests that noncorporeal torts are not covered by the term "`Bodily Injury.'" There are three types of personal liability coverage in the policy: the first, for "Personal Injury," involves noncorporeal torts, but does not cover the tort of negligent infliction of emotional distress; the second, for "Bodily Injury," uses the term bodily to describe the type of injury covered; and the third, for "Property Damage," uses the term physical to describe the type of property damage covered. It is reasonable to infer, therefore, that, to the extent that nonbodily or noncorporeal torts are covered, they are specified in the first category, namely, "Personal Injury." It is also reasonable to infer from this structure that the other categories do require some aspect of bodily harm, as in the case of "Bodily Injury," or physical damage, as in the case of "Property Damage."

Third, the overwhelming majority of jurisdictions that have considered this question have reached conclusions consistent with our interpretation of the insurance policy in question. The majority rule is that, as a matter of law, the term bodily injury in a liability policy does not include emotional distress unaccompanied by physical harm. See First Investors Corp. v. Liberty Mutual Ins. Co., 152 F.3d 162, 166-67 (2d Cir. 1998) (no duty to defend against claim for emotional distress arising out of economic losses caused by securities fraud); Keating v. National Union Fire Ins. Co., 995 F.2d 154, 156 (9th Cir. 1993) (same); Bituminous Fire & Marine Ins. Co. v. Izzy Rosen's, Inc., 493 F.2d 257, 260-61 (6th Cir. 1974) (no duty to defend against claim for emotional distress arising out of slander and false arrest); Aetna Casualty & Surety Co. v. First Security Bank, 662 F. Sup. 1126, 1128 (D. Mont. 1987) (no duty to defend against claim for emotional distress arising out of termination of employment); American & Foreign Ins. Co. v. Church Schools in the Diocese of Virginia, 645 F. Sup. 628, 632-33 (E.D. Va. 1986) (no duty to defend against claim for emotional distress arising out of teacher's alleged improper sexual conduct); St. Paul Fire & Marine Ins. Co. v. Campbell County School District No. 1, 612 F. Sup. 285, 287 (D. Wyo. 1985) (no duty to defend against claim for emotional suffering arising from publication of satirical cartoon in school newspaper); Rolette County v. Western Casualty & Surety Co., 452 F. Sup. 125, 130 (D.N.D. 1978) (no duty to defend against claim for emotional distress arising out of unconstitutional seizure of property); SL Industries,...