Mount Vernon Fire Ins. Co. v. Morris

• Decision Date: 02 August 2005
• Docket Number: No. 25619.,25619.
• Court: Connecticut Court of Appeals
• Parties: MOUNT VERNON FIRE INSURANCE COMPANY v. James P. MORRIS III et al.

877 A.2d 910

90 Conn.App. 525

MOUNT VERNON FIRE INSURANCE COMPANY v. James P. MORRIS III et al.

No. 25619.

Appellate Court of Connecticut.

Argued May 5, 2005.

Decided August 2, 2005.

Kevin E. Creed, for the appellant (intervening plaintiff Jane Doe).

Mark A. Newcity, Boston, MA, with whom, on the brief, was Robert P. La Hait, pro hac vice, for the appellee (plaintiff).

LAVERY, C.J., and SCHALLER and MIHALAKOS, Js.

LAVERY, C.J.

The intervening plaintiff, Jane Doe¹ (intervenor), appeals from the judgment of the trial court rendering partial summary judgment in favor of the plaintiff, Mount Vernon Fire Insurance Company, in this action seeking a determination of whether the plaintiff is obligated to defend or to indemnify the defendants, James P. Morris III and Pediatric Day and Night Care, LLC (Pediatric), in an underlying tort action pursuant to a policy of commercial general liability insurance (policy) issued by the plaintiff to the defendants. The intervenor claims that the court improperly rendered partial summary judgment because (1) the doctrines of res judicata and collateral estoppel applied to preclude relitigation of facts and issues previously determined in the underlying action, (2) there were genuine issues as to material facts and (3) the court misapplied the holding of DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 846 A.2d 849 (2004), to the facts at hand. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant. On December 26, 2001, the intervenor, acting on behalf of her minor son, filed the underlying action against the defendants. Doe v. Morris, judicial district of Waterbury, Docket No. UWY CV02 0168982S. She claimed that her son, while enrolled for day care services at Pediatric between August 23, 2000, and January 3, 2001, had been sexually abused by Morris, who is Pediatric's owner and director. The intervenor's complaint included seven counts alleging the following causes of action: sexual assault; battery; false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; and negligent supervision.² Each of these claims had as its factual basis the acts of sexual abuse alleged to have been perpetrated by Morris on the intervenor's son. The intervenor sought compensatory and punitive damages in unspecified amounts, and costs and attorney's fees. On February 4, 2002, the intervenor filed two motions for default in the underlying action due to the defendants' failure to appear. On February 20, 2002, those motions were granted, and the court clerk entered defaults.

On August 29, 2002, the plaintiff commenced the present declaratory judgment action with a four count complaint. The plaintiff alleged that it had issued a commercial general liability insurance policy to Pediatric as the named insured and to Morris as its owner, which was in effect between September 1, 1999, and November 15, 2000.³ The plaintiff directed the court to provisions of the policy that the plaintiff claimed precluded coverage as to the intervenor's claims against the defendants, and, in counts one and two, requested that the court declare that the plaintiff had no duty to defend the defendants in the underlying action or to indemnify them in the event of an adverse judgment. In counts three and four, the plaintiff sought declarations that the policy had been cancelled prior to its expiration⁴ and that Morris had made material misrepresentations when completing the application for the policy.⁵ On December 6, 2002, the intervenor filed a motion to intervene in this action, which the court, Hon. Joseph T. Gormley, Jr., judge trial referee, granted on January 5, 2003.

On July 18, 2003, the court, Pittman, J., rendered a default judgment in the underlying action. Judge Pittman drafted and signed a judgment file stating, inter alia, that "the well pleaded allegations of the complaint are taken as proved, and the issue is solely one of damages." On the basis of the intervenor's testimony and the exhibits submitted, Judge Pittman determined that the intervenor was entitled to recover total damages of $280,910.⁶

On March 25 and April 19, 2004, respectively, the intervenor and the plaintiff filed motions for summary judgment in the present matter. A hearing was held on both motions on June 14, 2004. On July 1, 2004, Judge Gormley denied the intervenor's motion and granted the plaintiff's motion as to counts one and two only.⁷

In his memorandum of decision, Judge Gormley discussed the three types of coverage afforded by the policy — general liability, professional liability and child molestation liability — and found that several provisions, falling within each type of coverage, operated to preclude coverage to the defendants for the claims raised in the underlying action. He noted that the factual predicate for each count alleged in the underlying action, although characterized in part as negligence, was behavior that necessarily was intentional and criminal,⁸ namely, the acts of sexual abuse perpetrated on the intervenor's son by Morris. Judge Gormley concluded that the policy by its terms did not apply to provide general liability coverage to the defendants for losses resulting from such conduct.⁹ Judge Gormley opined further that the conduct at issue did not arise out of the defendants' business, a prerequisite under the policy to general liability coverage. Additionally, he concluded that the injury alleged was not caused by any of an enumerated list of offenses for which general liability coverage was provided.¹⁰ Regarding professional liability coverage, Judge Gormley considered the conduct alleged to fall within specific, unambiguous professional liability exclusions for "any dishonest . . . criminal or malicious acts or omissions of the insured, any partner or employee," "actions for . . . assault or battery"¹¹ and "actual or alleged sexual misconduct of the insured or the insured's employees." (Internal quotation marks omitted.) As to child molestation liability coverage, he found that the defendants, insofar as they were either the "named insured" or a "person insured" as defined by the policy, were explicitly excluded from coverage.¹² As the court explained: "The purpose of [child molestation liability] coverage is to protect the insured against liability arising out of sexual abuse of third parties by the insureds' employees, [but][i]n this case, the alleged sexual abuse occurred at the hands of the person insured, Morris." In sum, Judge Gormley found "ample support for the [rendering] of summary judgment [in favor of] the plaintiff" because the policy provisions taken "together show[ed] a clear pattern of the carrier not to provide coverage for the sexual assault of children."¹³

Regarding the intervenor's argument that this court's decision in DaCruz v. State Farm Fire & Casualty Co., 69 Conn. App. 507, 794 A.2d 1117 (2002), rev'd, 268 Conn. 675, 846 A.2d 849 (2004), required that preclusive effect be given to Judge Pittman's findings, implicit in her judgment that the allegations of the intervenor's complaint had been proven, that both negligent and intentional misconduct had occurred, Judge Gormley observed that our holding in that case had since been unanimously overruled by our Supreme Court such that DaCruz "is now totally supportive of the plaintiff's position." Judge Gormley also rejected the intervenor's claim that the language of a policy endorsement created an ambiguity regarding child molestation liability coverage.

Following Judge Gormley's rendering of partial summary judgment, the intervenor appealed. Additional facts and procedural history will be provided as necessary.

I

As a preliminary matter, we must address the matter of whether the intervenor has appealed from a final judgment. We conclude that although the court's ruling did not dispose of all of the counts of the plaintiff's complaint, it nevertheless is an immediately appealable final judgment under the rule of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

"The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. . . . The statutory right to appeal is limited to appeals by aggrieved parties from final judgments. General Statutes §§ 52-263, 51-197a; see Practice Book § 3000 [now § 61-1]. Because our jurisdiction over appeals, both criminal and civil, is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Citations omitted.) State v. Curcio, supra, 191 Conn. at 30, 463 A.2d 566.

"A judgment that disposes of only a part of a complaint is not a final judgment." Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 246, 811 A.2d 1272 (2002). Although our rules of practice set forth certain circumstances under which a party may appeal from a judgment that disposes of less than all of the parts of a complaint; see Practice Book §§ 61-3, 61-4; none of those circumstances are present here. Accordingly, to be an appealable final judgment, the court's order granting partial summary judgment must meet the test articulated by our Supreme Court in State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. Pursuant to that test, "[a]n otherwise interlocutory ruling can be immediately appealed in two circumstances: (1) where the order terminates a separate and distinct proceeding; or (2) where the order so concludes the rights of the parties that further proceedings cannot affect them." Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 262 Conn. at 247, 811 A.2d 1272. We conclude that under the circumstances of this case, the second prong of Curcio is satisfied such that the court's ruling is...