Nationwide Mutual Ins. Co. v. Pasiak ( 2017 )

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NATIONWIDE MUTUAL INSURANCE COMPANY ET
AL. v. JEFFREY S. PASIAK ET AL.
(SC 19618)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa, Robinson and D’Auria, Js.*
Syllabus
The plaintiff insurance companies sought a declaratory judgment to deter-
mine, inter alia, whether they were obligated to indemnify the defendant
P in connection with a successful underlying tort action brought against
him by the defendants S and S’s husband. The tort action involved an
incident that occurred when S, who recently had been hired by P’s
construction company to perform office duties, was working alone in
an office located in P’s home. An armed, masked intruder entered that
office and tied S’s hands, gagged and blindfolded her, and, pointing a
gun at her head, threatened to kill her family if she did not give him
the combination to a safe in the home. P returned home during the
incident and unmasked the intruder, discovering that the intruder was
K, P’s friend. After S was untied, she asked to leave, but P told her to
stay. Although S told P about the threats that K had made to her, P
would not let S call the police. S remained with P for several hours in
fear that, if she left, K might harm her or her family. S eventually left later
that day, and the police subsequently were contacted. K was arrested
and charged with various offenses related to the incident. At the time
of the incident, P was covered by homeowners and umbrella insurance
policies issued by the plaintiffs, but he did not have a separate commer-
cial liability policy. The plaintiffs provided P with an attorney to defend
him in the tort action but notified him that they were reserving their
right to contest coverage. In the tort action, which included an allegation
of false imprisonment, the jury returned a general verdict for S and her
husband, awarding compensatory and punitive damages. In the declara-
tory judgment action, the trial court granted P’s motion for summary
judgment as to the plaintiffs’ duty to defend P in the tort action, but,
following judgment in the tort action, denied the plaintiffs’ motion for
summary judgment regarding the plaintiffs’ duty to indemnify P under
the umbrella policy, as the injury of false imprisonment was covered
under that policy. Following a trial to the court, in which only documen-
tary evidence, largely originating from the tort action, was submitted,
the court concluded that the business pursuits exclusion to the umbrella
policy, which excluded from coverage occurrences arising out of busi-
ness pursuits, did not apply and rendered judgment for P. The plaintiffs
appealed to the Appellate Court, challenging the trial court’s limitations
on discovery, the scope of the declaratory judgment trial, the court’s
determinations regarding certain of the policy exclusions, and its rejec-
tion of their public policy argument regarding indemnification for puni-
tive damages. The Appellate Court reversed the trial court’s judgment,
determining that that court improperly had concluded that the business
pursuits exclusion of the umbrella policy did not apply. On the granting
of certification, P appealed to this court, contending that the Appellate
Court improperly determined, inter alia, that S’s acquiescence in obeying
P’s commands was a function of their employer-employee relationship
and that the false imprisonment of S was therefore an occurrence arising
out his business pursuits that was excluded from coverage under his
umbrella policy. Held:
1. The Appellate Court and the trial court having employed an incorrect
standard for determining whether P’s tortious conduct was an occur-
rence arising out of his business pursuits, and there not having been
sufficient evidence in the record to conclude whether the business
pursuits exclusion applied as a matter of law, this court reversed the
Appellate Court’s judgment with direction to remand the case for a trial
de novo at which the trial court must resolve the factual issue of whether
P’s false imprisonment of S arose out of his business pursuits in operating
his company in determining whether S’s claim for false imprisonment
was excluded from coverage under the business pursuits exclusion in
P’s umbrella policy: the trial court improperly focused on K’s actions
as they may have related to the actual profitability of P’s business rather
than considering P’s purported statements to and actions toward S as
they may have related to P’s business or the employment relationship
and incorrectly indicated that an act could fall within the exclusion
only if was exclusively in furtherance of P’s business pursuits, and the
Appellate Court relied too heavily on S’s employment status and the
work based location at which she sustained her injury; moreover, the
purpose of the particular act giving rise to liability, its nature and its
relationship, or lack of relationship, to the business, or use of the employ-
ment relationship or status to effectuate the harmful act may support
the requisite causal nexus for purposes of establishing that the act arose
out a business pursuit.
2. The plaintiffs could not prevail on any of their alternative grounds for
affirming in whole or in part the Appellate Court’s judgment: the workers’
compensation exclusion in P’s umbrella policy did not preclude indemni-
fication because the evidence established that S was an employee of
P’s company, and P, the insured, would not have personally incurred
any obligation to pay a compensable workers’ compensation claim if S
had timely filed a notice of such claim and, in any event, the plaintiffs
failed to establish that S’s injuries would have been compensable; fur-
thermore, the exclusion in the policy for personal injury resulting from
physical or mental abuse did not apply as a matter of policy construction,
the covered occurrence of false imprisonment having constituted a spe-
cific intentional act expressly covered by the policy, and any mal-
treatment undertaken by P to commit the false imprisonment was not
of such independent consequence as to distinguish it from that inherent
in the intentional tort; moreover, this court concluded that, in the
absence of a public policy reflected in this state’s laws against providing
coverage for common-law punitive damages, under the facts of the
present case, the plaintiffs were bound to keep the bargain they had
struck with P, which included providing coverage for such damages for
false imprisonment.
3. This court concluded that, on remand, the plaintiffs are entitled to appro-
priate discovery and a trial de novo to determine whether they have
met their burden of proving that the business pursuits exclusion bars
coverage: there was no privity between the plaintiffs and P as to that
issue in the underlying tort action because they did not share an interest
in proving that P’s false imprisonment of S arose out of his business
pursuits, it having been the interest of both P and S to minimize or
avoid presentation of facts that could have established a connection
between P’s interests as the owner of the construction company and
the wrongful actions he was alleged to have undertaken, and the issue
of whether that causal connection existed was neither actually litigated
nor necessarily determined; furthermore, it was of no consequence that
the plaintiffs did not seek permission to intervene in the tort action,
the plaintiffs having had no such right, and it would have been an abuse
of discretion to allow permissive intervention to litigate their policy
exclusion in the tort action.
(Two justices concurring and dissenting in one opinion)
Argued December 5, 2016—officially released December 19, 2017
Procedural History
Action for a declaratory judgment to determine
whether the plaintiffs were obligated to defend and
indemnify the named defendant under certain insurance
policies for damages awarded against him in a separate
tort action, brought to the Superior Court in the judicial
district of Stamford-Norwalk and transferred to the
Complex Litigation Docket, where the court, Brazzel-
Massaro, J., denied the plaintiffs’ motion for summary
judgment and granted the motion for summary judg-
ment filed by the named defendant et al. as to the
duty to defend under the policies; thereafter, the named
defendant filed a counterclaim; subsequently, the court
granted in part the plaintiffs’ motion for summary judg-
ment as to the duty to indemnify under the homeowners
insurance policy; thereafter, the court granted the plain-
tiffs’ motion to bifurcate the trial and the matter was
tried to the court, Brazzel-Massaro, J., on the complaint
only; judgment for the named defendant et al. on count
two of the complaint determining that the plaintiffs
were required to indemnify under the umbrella policy,
from which the plaintiffs appealed to the Appellate
Court, Keller, Prescott and West, Js., which reversed
the trial court’s judgment and remanded the case with
direction to render judgment for the plaintiffs on count
two of the amended complaint and to dismiss as moot
their appeal regarding their duty to defend under the
umbrella policy, and the named defendant et al., on the
granting of certification, appealed to this court.
Reversed; further proceedings.
David J. Robertson, with whom were Christopher
H. Blau, and, on the brief, Madonna A. Sacco, for the
appellants (named defendant et al.).
Robert D. Laurie, with whom, on the brief, were
Heather L. McCoy and Elizabeth F. Ahlstrand, for the
appellees (plaintiffs).
Opinion
McDONALD, J. This declaratory judgment action con-
cerns whether an insurer is obligated to indemnify a
business owner under a personal insurance policy for
liability arising from his false imprisonment of his com-
pany’s employee at her workplace and the evidentiary
basis on which such a determination is to be made. In
this certified appeal, the defendant Jeffrey S. Pasiak1
challenges the Appellate Court’s determination that
such liability fell under the business pursuits exclusion
to coverage under his personal umbrella policy. The
plaintiffs, Nationwide Mutual Insurance Company and
Nationwide Mutual Fire Insurance Company, contend
that coverage not only is barred under the business
pursuits exclusion, but also that (1) coverage is barred
under policy exclusions for workers’ compensation
obligations and for mental abuse, (2) construing the
policy to provide indemnification for common-law puni-
tive damages arising from intentional wrongdoing vio-
lates public policy, and (3) the trial court improperly
limited the scope of discovery and the declaratory judg-
ment trial, depriving the plaintiffs of a trial de novo
on coverage issues that they could not litigate in the
underlying tort action.
We hold that the case must be remanded to the trial
court for further proceedings, limited to the issue of
whether the business pursuits exclusion applies. We
conclude that neither the Appellate Court nor the trial
court employed the correct standard for determining
whether the defendant’s tortious conduct was an occur-
rence ‘‘arising out of’’ the business pursuits of the
insured and that further factual findings would be nec-
essary to determine whether this exception applies
under the correct standard. We further conclude that
the plaintiffs cannot prevail on their alternative grounds
regarding the other exclusions and public policy as a
matter of law. Finally, we conclude that the plaintiffs
are not limited to the evidentiary record in the underly-
ing tort action to establish that the business pursuits
exclusion barred coverage. Accordingly, we reverse the
judgment of the Appellate Court with direction to
remand the case to the trial court for a trial de novo
on that issue.
I
BACKGROUND
The Appellate Court’s opinion summarized the facts
that the jury reasonably could have found in the underly-
ing tort action; see Nationwide Mutual Ins. Co. v. Pas-
iak, 161 Conn. App. 86, 90–91, 127 A.3d 346 (2015);
which we have supplemented with the limited addi-
tional facts found by the trial court in the declaratory
judgment action, also gleaned from the evidence in the
underlying action.2 At the time of the incident in ques-
tion, the defendant operated a construction company,
Pasiak Construction Services, LLC. The sole office for
the company was a room located on the second floor
of the defendant’s home in Stamford; the company’s
construction equipment was stored at another site. Sara
Socci was hired by the defendant to perform duties as
an office worker for the construction company and
worked at that office in the defendant’s home. Her work
hours were from 9:30 a.m. to 2:30 p.m., four days a week.
During Socci’s second week of employment, while
she was alone at the office performing her duties, a
masked intruder carrying a gun entered the office and
demanded that she open the safe. Unaware that a safe
existed in the home, Socci could not provide the
intruder with the safe’s combination. The intruder led
Socci into a bedroom, where he tied her hands, gagged
her, and blindfolded her. At one point, he pointed a gun
at her head and threatened to kill her family if she did
not give him the combination.
The defendant returned home during the incident
and was attacked by the intruder. During an ensuing
struggle, the defendant pulled off the intruder’s mask,
revealing him to be Richard Kotulsky, a lifelong friend of
the defendant. The defendant began talking to Kotulsky
and inquired about Socci. Kotulsky led the defendant
to Socci, who was crying and hysterical. After the defen-
dant made Kotulsky untie Socci, the three of them
returned to the office, where a discussion continued
between the defendant and Kotulsky about a woman.3
Socci asked to leave, but the defendant told her to stay
and sit down. After further discussions with Kotulsky,
the defendant allowed him to leave the house. Socci
then told the defendant about the threats that Kotulsky
had made to her and her family, but the defendant
would not call the police. He told Socci to stay with
him and refused to let her call the police or to discuss
the incident further. She remained with the defendant
for several hours, in fear that, if she left, she or her
family might be harmed by Kotulsky. Only after he drove
Socci to Greenwich to discuss the incident with a
mutual friend, Denise Taranto, who advised them to
call the police, did he allow Socci to leave.
The police were not contacted until later that day,
after Socci and her husband, Kraig Socci, went to the
defendant’s home and learned that he had not yet con-
tacted them. In the presence of the Soccis and the
police, the defendant telephoned Kotulsky and told him
that ‘‘the girl’’ had identified him to the police. Some
days later, Kotulsky was arrested and eventually con-
victed of various criminal offenses in connection with
this incident.4 The safe was never opened, and its con-
tents were never divulged.
As a result of the incident, Socci developed post-
traumatic stress disorder, requiring extensive therapy,
and was unable to return to work.
The record reveals the following additional undis-
puted facts and procedural history. Socci and Kraig
Socci commenced a tort action against the defendant
(Socci action), alleging (1) false imprisonment, (2) neg-
ligence, (3) negligent infliction of emotional distress,
(4) intentional infliction of emotional distress, and (5)
loss of consortium as to Kraig Socci.5 The first two
claims related to the defendant’s conduct in preventing
Socci from leaving until she and the defendant returned
from their meeting with Taranto. The third and fourth
claims related to the entirety of the defendant’s conduct
leading up to his comments on the telephone to Kotul-
sky implicating Socci as the police informant. The com-
plaint alleged that Socci had sustained permanent
physical and emotional injuries and requested compen-
satory and punitive damages.
At the time of the relevant events, the defendant was
covered by insurance policies issued by the plaintiffs,
including a homeowners policy covering bodily injury
and a personal umbrella policy covering bodily injury
and personal injury. He did not have a separate commer-
cial liability policy. The plaintiffs provided the defen-
dant with an attorney to defend him in the Socci action,
but notified him by letter that they were reserving their
right to contest coverage.
In accordance with that reservation, the plaintiffs
commenced the present action seeking a declaration
that they had no duty to defend or indemnify the defen-
dant in the Socci action. The plaintiffs then filed a
motion for summary judgment, and the defendant filed
a motion for summary judgment solely as to the duty
to defend. The court concluded that the allegations of
the complaint were sufficiently broad to obligate the
plaintiffs to provide the defendant with a defense under
both his homeowners policy and his personal umbrella
policy. The court deemed it improper at that juncture
to determine the plaintiffs’ duty to indemnify the defen-
dant. Accordingly, it granted the defendant’s motion for
summary judgment as to the duty to defend and denied
the plaintiffs’ motion seeking a declaratory judgment
in their favor.
The Socci action proceeded to trial with the plaintiffs
providing defense counsel to the defendant. At the con-
clusion of evidence, the parties agreed not to submit
special interrogatories to the jury. The jury returned a
general verdict in favor of the Soccis. It awarded Socci
$628,200 in compensatory damages and $175,000 in
punitive damages, and awarded Kraig Socci $32,500 in
compensatory damages.
Following judgment in the Socci action, the plaintiffs
filed a second motion for summary judgment in the
declaratory judgment action regarding their duty to
indemnify the defendant.6 In support of their motion,
the plaintiffs argued that the defendant’s policies did
not provide coverage for his liability in the Socci action
because those policies cover accidents, not intentional
acts, and do not cover claims for emotional distress. The
plaintiffs further contended that any coverage would
be barred under policy exclusions for intentional acts,
wilful violations of law, business pursuits, workers’
compensation, and mental abuse. Finally, they con-
tended that indemnification for the punitive damages
would contravene public policy.
The trial court framed its decision on the motion in
three parts: (1) the effect of the general verdict; (2) the
duty to indemnify under the homeowners policy; and
(3) the duty to indemnify under the umbrella policy. The
court concluded that the general verdict rule7 precluded
the plaintiffs’ arguments premised on characterizing the
defendant’s conduct as exclusively intentional and,
therefore, not a covered accidental occurrence. The
court reasoned that the absence of jury interrogatories
created an ambiguity as to the counts on which the
verdict rested, and that because the plaintiffs had failed
to afford themselves of the opportunity to seek such
interrogatories, the verdict must be construed to rest
on both intentional and negligent conduct as alleged in
the complaint. The court did not, at this stage, explain
how the plaintiffs could have availed themselves of
this opportunity.
With regard to the duty to indemnify, the court con-
cluded that the plaintiffs were entitled to summary judg-
ment under the homeowners policy, but were not
entitled to judgment under the broader umbrella policy.
Specifically, the court pointed to the homeowners pol-
icy coverage limited to ‘‘bodily injury,’’ which was
defined to exclude emotional distress unless caused by
a physical injury, and the lack of evidence in the Socci
action establishing such physical injury. Although the
umbrella policy contained a similar definition for bodily
injury, that policy also covered ‘‘personal injury,’’ a term
defined by reference to specified injuries/acts, including
‘‘false imprisonment.’’ In light of that express coverage,
the trial court concluded that many of the policy exclu-
sions on which the plaintiffs relied were inapplicable.
The court also concluded that the requisite facts to
support other exclusions on which the plaintiffs relied
were not supported by evidence or jury interrogatories
in the Socci action. The court rejected the plaintiffs’
public policy argument regarding the punitive damages.
Accordingly, it granted in part and denied in part the
plaintiffs’ motion for summary judgment.
After the trial court clarified that its decision on the
motion for summary judgment was not a final judgment
for purposes of appeal, a dispute arose over the scope
of evidence, and, hence, discovery, that would be per-
mitted in the declaratory judgment trial. In a written
decision addressing that dispute, the trial court cast the
parties’ positions as polar opposites, with the plaintiffs
contending that they were entitled to a trial de novo
regarding the issue of indemnification, unfettered as to
what evidence may be proffered on that issue, and the
defendant contending that the trial must be limited to
the evidence presented in the Socci action. Ultimately
the court concluded that ‘‘[i]t was [the plaintiffs’] choice
in the [Socci] action to not actively pursue in greater
detail the issues affecting the exclusions in the policy,’’
that the plaintiffs could have submitted interrogatories
to the jury to determine the basis of its decision, and
that they should not be permitted to have a second bite
at the apple. The court suggested that the plaintiffs
could have requested interrogatories through defense
counsel, with whom they were in close contact, or
through their intervention as a party. Accordingly, it
denied the plaintiffs’ request to permit unrestricted evi-
dence. However, a week before the trial commenced,
the court permitted the plaintiffs to obtain certain lim-
ited discovery related to the workers’ compensation
exclusion, and they were able to depose the defendant
on that matter. At the conclusion of that deposition,
the plaintiffs stated for the record that the trial court
had precluded discovery on matters other than those on
which they questioned the defendant that the plaintiffs
believed were relevant.
Thereafter, the declaratory judgment trial proceeded
with only documentary evidence submitted to the court,
largely originating from the Socci action, except as to
certain matters related to workers’ compensation. Fol-
lowing argument, the court issued a decision declaring
that the plaintiffs were obligated to indemnify the defen-
dant for his liability in the Socci action. In setting forth
the procedural history of the case, the court cast its
earlier ruling on the scope of discovery as precluding
new evidence relating to the basis of liability in the
Socci action, and not that relating to the issue of cover-
age under the policy. In analyzing the substantive issue,
the court largely followed its prior reasoning when
denying the plaintiffs’ motion for summary judgment.
Accordingly, it rendered judgment for the defendant.
The plaintiffs appealed from the judgment to the
Appellate Court. They challenged the trial court’s limita-
tions on discovery, the scope of the declaratory judg-
ment trial, the court’s determinations regarding the
policy exclusions, except the intentional acts and wilful
violation of law exclusions, and its rejection of the
public policy argument. The Appellate Court deter-
mined that the trial court improperly had concluded
that the business pursuits exclusion of the policy did
not apply. Therefore, it reversed the trial court’s judg-
ment on that basis without reaching the other issues
raised by the plaintiffs. Nationwide Mutual Ins. Co.
v. Pasiak, supra, 161 Conn. App. 89. The defendant’s
certified appeal to this court followed. See Nationwide
Mutual Ins. Co. v. Pasiak, 320 Conn. 913, 130 A.3d
266 (2016).
II
INSURANCE POLICY AND ITS CONSTRUCTION
We begin with the relevant policy provisions and
the principles of construction that guide our review of
those provisions.
A
The defendant’s personal umbrella policy obligated
the plaintiffs to pay for damages an insured is legally
obligated to pay due to an ‘‘occurrence’’ in excess of
certain sums. This term and others of significance are
defined in the policy as follows:
‘‘Occurrence(s) means an accident including continu-
ous or repeated exposure to the same general condi-
tions. It must result in bodily injury, property damage,
or personal injury caused by an insured. . . .
‘‘Bodily injury means bodily harm, including resulting
sickness, disease, or death. Bodily injury does not
include emotional distress, mental anguish, humilia-
tion, mental distress or injury, or any other similar
injury unless the direct result of bodily harm. . . .
‘‘Personal injury means:
‘‘[a] false arrest, false imprisonment, wrongful con-
viction, wrongful entry . . . .’’ (Emphasis added.)
The policy provides exclusions to this coverage.
Those exclusions include:
‘‘An occurrence arising out of the business pursuits
. . . of an insured’’;
‘‘Any insured’s obligation, including benefits required
to be paid, under any of the following laws . . . work-
ers’ compensation’’; and
‘‘Bodily injury or personal injury resulting from acts
or omissions relating directly or indirectly to sexual
molestation, physical or mental abuse, harassment,
including sexual harassment, whether actual, alleged
or threatened. . . .’’
B
In considering the meaning of these exclusions and
their application to the facts, we are guided by settled
principles. ‘‘[C]onstruction of a contract of insurance
presents a question of law for the [trial] court which
this court reviews de novo. . . . The determinative
question is the intent of the parties, that is, what cover-
age the [insured] expected to receive and what the
[insurer] was to provide, as disclosed by the provisions
of the policy. . . . In evaluating the expectations of
the parties, we are mindful of the principle that provi-
sions in insurance contracts must be construed as lay-
men would understand [them] and not according to the
interpretation of sophisticated underwriters and that
the policyholder’s expectations should be protected as
long as they are objectively reasonable from the lay-
man’s point of view. . . . [W]hen the words of an insur-
ance contract are, without violence, susceptible of two
[equally responsible] interpretations, that which will
sustain the claim and cover the loss must, in preference,
be adopted. . . . [T]his rule of construction favorable
to the insured extends to exclusion clauses.’’ (Citations
omitted; internal quotation marks omitted.) Vermont
Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 591–92,
966 A.2d 672 (2009). When construing exclusion
clauses, ‘‘the language should be construed in favor of
the insured unless it has a high degree of certainty that
the policy language clearly and unambiguously
excludes the claim.’’ (Internal quotation marks omit-
ted.) Connecticut Ins. Guaranty Assn. v. Drown, 314
Conn. 161, 188, 101 A.3d 200 (2014). While the insured
bears the burden of proving coverage, the insurer bears
the burden of proving that an exclusion to coverage
applies. See Capstone Building Corp. v. American
Motorists Ins. Co., 308 Conn. 760, 788 n.24, 67 A.3d
961 (2013).
This court previously has applied these rules of con-
struction to policy definitions similar to those in the
present case. In Imperial Casualty & Indemnity Co.
v. State, 246 Conn. 313, 327–29, 714 A.2d 1230 (1998),
this court confronted the internal inconsistency
between a policy limiting coverage to accidents (i.e.,
unintentional conduct) while also providing coverage
for certain injuries that could result only from inten-
tional conduct, such as false imprisonment. Consistent
with our rules of construction, we construed this ambi-
guity in favor of the insured to provide coverage for
the intentional acts specified.8 See id., 330–31.
Our prior construction of those provisions has partic-
ular significance to the present case. As the trial court
emphasized in its decision on the second motion for
summary judgment regarding indemnification, ‘‘the pro-
vision within the umbrella policy that includes coverage
for false imprisonment is crucial in the determination of
whether the policy provides coverage for the plaintiffs’
verdict entered in the underlying Socci [action].’’ The
trial court identified the injury of false imprisonment,
and no other, as covered under the policy at issue.9
With that focus in mind, we turn to the certified issue.
III
BUSINESS PURSUITS EXCLUSION
The defendant contends that the Appellate Court
improperly concluded that the false imprisonment of
Socci was ‘‘[a]n occurrence arising out of the business
pursuits . . . of an insured.’’ As we explain subse-
quently in this opinion, although we agree with the
defendant that the Appellate Court’s analysis was
flawed, we conclude that the trial court’s analysis also
was flawed.
The trial court made no separate factual findings with
regard to this exclusion. However, its analysis referred
to critical testimony in the Socci action regarding cer-
tain statements the defendant purportedly made to
Socci after Kotulsky left as to reasons why they should
not call the police. The defendant purportedly cited his
long, close friendship with Kotulsky and the ruinous
effect on his business.
The trial court framed its analysis in terms of two
related issues. First, it noted that ‘‘the real issue is
whether the actions of [the defendant] in response to
the robbery arose out of the business pursuits for the
Pasiak Construction business or [arose] as the defen-
dant contends because he was trying to protect a life-
long friend.’’ (Emphasis added.) Second, it considered
whether the defendant’s actions evidenced the continu-
ity and profit motive necessary under the business pur-
suits test. The court rejected the plaintiffs’ reliance on
Socci’s testimony indicating that the defendant had
claimed (at the time of the incident) that the incident
would ruin his business, reasoning that this argument
ignored the testimony reflecting Kotulsky’s friendship
with the defendant, and the lack of proof of any impact
on the defendant’s business had the robbery succeeded.
The Appellate Court determined that the trial court’s
analysis reflected a misapplication of the business pur-
suits exclusion. Nationwide Mutual Ins. Co. v. Pasiak,
supra, 161 Conn. App. 89, 100–101. The Appellate Court
concluded that the defendant’s operation of his con-
struction company, and his employment of Socci in
support thereof, constituted the requisite ‘‘business pur-
suits,’’ and that Socci’s injuries arose out of that busi-
ness pursuit. Id., 99. As to the latter conclusion, the
court reasoned that ‘‘the sine qua non of the defendant’s
tortious conduct was . . . Socci’s presence at his busi-
ness office fulfilling her responsibilities as his
employee. . . . Stated alternatively, had . . . Socci
not been at the office performing her duties as an
employee of the defendant’s business, there is no reason
to believe that she would have been assaulted by Kotul-
sky and, consequently, detained by the defendant.
Indeed, there was no other reason for . . . Socci’s
presence on the premises, and her acquiescence in
obeying the defendant’s commands to wait and not
leave were, in part, a function of their employer-
employee relationship.’’ Id., 99–100. The Appellate
Court deemed the defendant’s subjective motivations
for his actions irrelevant. Id., 101.
On appeal to this court, the defendant contends that
the Appellate Court’s analysis improperly focused on
the sequence of events rather than the mechanism of
the injury. He also contends that the Appellate Court
improperly found facts insofar as it concluded that
Socci’s acquiescence in obeying the defendant’s com-
mands was a function of their employer-employee rela-
tionship. He claims that the trial court properly focused
on whether his actions met the continuity and profit
motive test for a business pursuit articulated by this
court. We conclude that the analysis in both of the
lower courts’ decisions was a misapplication of the
business pursuits exclusion, and that the case should
be remanded to the trial court to allow it to reconsider
the evidence, adduced after further proceedings, under
the proper standard.
Although the policy defines the term ‘‘business’’ as ‘‘a
trade, profession, occupation, or employment including
self-employment,’’ it does not define ‘‘business pur-
suits’’ or ‘‘arising out of.’’ The meaning of both terms,
however, has been articulated by this court as well as
other jurisdictions considering this exclusion.
This court adopted a definition of ‘‘business pursuits’’
in Pacific Indemnity Insurance Co. v. Aetna Casu-
alty & Surety Co., 240 Conn. 26, 30, 688 A.2d 319 (1997),
that conformed to the meaning ascribed in most other
jurisdictions: ‘‘[T]he term business pursuits encom-
passe[s] two elements, continuity and profit motive. As
to the first, there must be a customary engagement or
a stated occupation; as to the latter, there must be
shown to be such activity as a means of livelihood;
gainful employment; means of earning a living; procur-
ing subsistence or profit; commercial transactions or
engagements.’’ (Internal quotation marks omitted.) This
test casts a broader net to include activities other than
those that bear the formal or legal hallmarks of an
established business or a full-time occupation. See, e.g.,
id., 27–28 (boarding horses by persons otherwise
employed full-time was business pursuit). ‘‘The determi-
nation of whether a particular activity constitutes a
business pursuit is to be made by a flexible fact-specific
inquiry.’’ Id., 33.
In the present case, no one questions that the activi-
ties of the defendant’s construction company meet the
two elements of a business pursuit. Nor does anyone
contend that false imprisonment constitutes a business
pursuit. Therefore, the question is not whether the false
imprisonment itself satisfied the continuity/profit ele-
ments of a business pursuit, as the trial court’s rationale
suggested, but rather whether the defendant’s false
imprisonment of Socci ‘‘arose out of’’ his business pur-
suits in operating the construction company. See Neal
v. Celina Mutual Ins. Co., 522 S.W.2d 179, 180–81 (Ky.
1975) (‘‘[o]f course accidents of any kind are not busi-
ness pursuits in themselves; the exclusion clause plainly
has reference to accidents that occur in the carrying on
of a business pursuit’’); Greenman v. Michigan Mutual
Ins. Co., 173 Mich. App. 88, 94, 433 N.W.2d 346 (1988)
(‘‘[t]he complained of acts themselves need not be per-
formed for profit; the acts need only be performed dur-
ing the business pursuit of the insured’’); 46 C.J.S. 226,
Insurance § 1353 (2007) (‘‘[w]hen the questioned con-
duct is incidental to the insured’s regular employment,
profit motive is irrelevant to a business pursuits deter-
mination’’); see also Cambridge Mutual Fire Ins. Co.
v. Sakon, 132 Conn. App. 370, 378, 31 A.3d 849 (2011)
(conducting separate inquiries as to whether actions
alleged in counterclaim for which indemnification was
sought were business pursuits and whether actions
arose from insured’s business pursuit of commercial
development plan), cert. denied, 304 Conn. 904, 38 A.3d
1202 (2012). Therefore, the present case turns on the
meaning of ‘‘arising out of’’ the defendant’s business
pursuits.
The meaning of ‘‘arising out of’’ in the context of
insurance policies was already well established when
this court first defined business pursuits. In Hogle v.
Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975), this
court explained that ‘‘it is sufficient to show only that
the accident or injury ‘was connected with,’ ‘had its
origins in,’ ‘grew out of,’ ‘flowed from,’ or ‘was incident
to’ the [specified subject] in order to meet the require-
ment that there be a causal relationship between the
accident or injury and the [subject].’’ See also Misiti,
LLC v. Travelers Property Casualty Co. of America,
308 Conn. 146, 158, 61 A.3d 485 (2013) (recognizing that
definition in Hogle applies outside of motor vehicle
context). This court has described the definition in
Hogle as ‘‘expansive,’’ underscoring that it is less
demanding than the standard for proximate cause. New
London County Mutual Ins. Co. v. Nantes, 303 Conn.
737, 759, 36 A.3d 224 (2012); accord Board of Education
v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 48, 801
A.2d 752 (2002); see also Fibreboard Corp. v. Hartford
Accident & Indemnity Co., 16 Cal. App. 4th 492, 504,
20 Cal. Rptr. 2d 376 (1993) (citing same definition and
noting that ‘‘ ‘[a]rising out of’ are words of much broader
significance than ‘caused by’ ’’); Metropolitan Prop-
erty & Casualty Ins. Co. v. Fitchburg Mutual Ins. Co.,
58 Mass. App. 818, 820–21, 793 N.E.2d 1252 (2003)
(‘‘[t]he terms ‘arising out of’ and ‘in connection with’
are not be to be construed narrowly but are read expan-
sively in insurance contracts’’); United States Fire Ins.
Co. v. New York Marine & General Ins. Co., 268 Ohio App.
Div. 2d 19, 21–22, 706 N.Y.S.2d 377 (2000) (‘‘when used
in automobile exclusion clauses, the words arising out
of the . . . use are deemed to be broad, general, com-
prehensive terms, ordinarily understood to mean origi-
nating from, incident to, or having connection with the
use of the vehicle’’ [internal quotation marks omitted]).
Although Hogle involved a provision affording cover-
age, its expansive definition also has been applied when
the phrase was used in coverage exclusions; see, e.g.,
New London County Mutual Ins. Co. v. Nantes, supra,
303 Conn. 753–54; including the business pursuits exclu-
sion. See Cambridge Mutual Fire Ins. Co. v. Sakon,
supra, 132 Conn. App. 380. Numerous other jurisdic-
tions apply the same definition to the business pursuits
exclusion. See, e.g., Metropolitan Property & Casualty
Ins. Co. v. Fitchburg Mutual Ins. Co., supra, 58 Mass.
App. 821; Blomdahl v. Peters, Docket No. 2014AP2696,
2016 WL 413174, *2 (Wis. App. February 4, 2016). But
see Farm Bureau Life Ins. Co. v. Holmes Murphy &
Associates, Inc., 831 N.W.2d 129, 134 n.7 (Iowa 2013)
(‘‘a phrase like ‘arising out of’ may be given a narrower
scope in an exclusion when a court finds the exclusion
ambiguous and therefore determines the phrase means
‘proximately caused by’ ’’); South Carolina Farm
Bureau Mutual Ins. Co. v. S.E.C.U.R.E. Underwriters
Risk Retention Group, 347 S.C. 333, 339–40, 554 S.E.2d
870 (App. 2001) (concluding that narrower construction
of arising out of applied to business pursuits exclusion
under rule of construction specific to exclusions), rev’d
on other grounds, 353 S.C. 249, 578 S.E.2d 8 (2003).
Our case law indicates that the question of whether
the defendant’s false imprisonment of Socci was con-
nected with, had its origins in, grew out of, flowed from,
or was incident to his business pursuits would also be
a factual matter. See Kolomiets v. Syncor International
Corp., 252 Conn. 261, 265, 746 A.2d 743 (2000) (consider-
ing whether injury arose out of employment in workers’
compensation claim as matter of fact); Whitney Frocks,
Inc. v. Jobrack, 135 Conn. 529, 534, 66 A.2d 607 (1949)
(‘‘the question whether or not the transaction arose out
of the business for which the corporation was organized
was a question of fact for the jury to decide’’). But see
Northern Security Ins. Co. v. Rosenthal, 186 Vt. 578,
579, 980 A.2d 805 (2009) (‘‘[t]he court’s determination
that there was no coverage presents a mixed question
of fact and law: [1] a factual determination concerning
the nature of the conduct giving rise to the liability;
and [2] a legal conclusion as to whether the conduct
falls within the business-pursuits exclusion’’).
Our case law construing the phrase ‘‘arising out of’’
offers useful, but limited, guidance. Although broadly
construed, this court’s application of this phrase indi-
cates that the requisite causal nexus would not be met
merely by a sequential relationship between the injury
and the business pursuit. Compare Misiti, LLC v. Trav-
elers Property Casualty Co. of America, supra, 308
Conn. 162–63 n.11 (causal nexus to establish liability
arising out of use of part of premises leased to tavern
not established simply because use of tavern and injury
occurred in sequence; injury occurred after patron left
tavern, took detour from walkway to parking lot to
scenic area, and was injured on part of premises not
leased to tavern), with Board of Education v. St. Paul
Fire & Marine Ins. Co., supra, 261 Conn. 45, 47–48
(causal nexus to establish liability resulting from use of
covered vehicle established when bus driver negligently
allowed special education student to depart from bus
unsupervised and student thereafter was sexually
assaulted in school bathroom when driver’s negligence
was direct factor in causing injury). Accordingly, this
case law makes clear that the mere fact that the false
imprisonment occurred after Socci arrived at her work-
place would not, in and of itself, establish the requi-
site nexus.
Given the paucity of Connecticut case law applying
this exclusion, it is useful to consider other courts’
applications of this common exclusion, albeit with a
critical eye in light of other textual differences.10 See
annot., 35 A.L.R. 5th 375 (1996) (noting that business
pursuits exclusions may be found in ‘‘practically all
homeowners’ policies,’’ ‘‘nearly all of the provisions
employ virtually the same language,’’ ‘‘provisions . . .
include broad exclusionary language for liabilities ‘aris-
ing out of business pursuits of an insured’ ’’).
Although the workplace as the locus of the injury is
always a significant factor, as one early commentator
noted: ‘‘There seems almost unanimous accord in the
decisions that the location at which an act is performed
is not decisive on the question of whether the act consti-
tutes part of an excluded business pursuit. Rather, it
is the nature of the particular act involved and its rela-
tionship, or lack of relationship, to the business that
controls.’’ L. Frazier, ‘‘The ‘Business Pursuits’ Exclusion
in Personal Liability Insurance Policies: What the
Courts Have Done with It,’’ 1970 Ins. L.J. 519, 533–34
(1970). The requisite connection is obvious in cases in
which the act giving rise to liability occurred in the
usual course of employment or the acts were incidental
to those occurring in the usual course of employment.
See, e.g., Metropolitan Property & Casualty Ins. Co. v.
Fitchburg Mutual Ins. Co., supra, 58 Mass. App. 821
(focusing on fact that act injuring coworker at work-
place, although not itself related to employment,
occurred while coworker was working, and injury
would not have occurred but for fact that insured tort-
feasor had been performing task for her employer just
before injury occurred); Berkshire Mutual Ins. Co. v.
LaChance, 115 N.H. 487, 489, 343 A.2d 642 (1975) (acci-
dent injuring coworker at workplace arose out of busi-
ness pursuit when it occurred while insured was
engaged in his regular occupation).
Because ‘‘arising out of’’ is an expansive phrase, how-
ever, the causal connection to the business pursuit
extends beyond such obvious examples. For example,
the purpose of the activity or action giving rise to the
liability, in connection with other employment related
facts, may support the requisite causal nexus. Alterca-
tions causing bodily injury and even death have been
deemed to arise from a business pursuit when the dis-
pute giving rise to the action was business related. Lib-
erty Mutual Ins. Co. v. Miller, 549 So. 2d 1200,
1200–1201 (Fla. App. 1989) (exclusion applied to con-
frontation between physicians at hospital, regarding
care and treatment of mutual patient, that resulted in
personal injury); Otero v. United States Fire Ins. Co.,
314 So. 2d 208, 209 (Fla. App. 1975) (exclusion applied
to assault of tenant by insured landlord’s son-in-law
when assault arose in course of dispute regarding
insured’s return of security deposit and tenant’s return
of key), cert. denied, 328 So. 2d 843, 844 (Fla. 1976);
Reliance Ins. Co. v. Fisher, 164 Mont. 278, 280, 284–85,
521 P.2d 193 (1974) (exclusion applied when teacher
struck another teacher over disciplining of student dur-
ing school hours); U. S. F. & G. Ins. Co. v. Brannan,
22 Wash. App. 341, 342, 350, 589 P.2d 817 (1979) (killing
of one business associate and wounding of another fell
within exclusion when altercation arose over business
matter and took place on business site during business
hours); see also Kermans v. Pendleton, 62 Mich. App.
576, 579, 233 N.W.2d 658 (1975) (exclusion applied when
insured owner of bar shot patron because owner ‘‘was
engaged in his business pursuit at the time of the shoot-
ing and . . . but for this business pursuit, the shooting
would not have occurred’’; shooting incident was
related to physical safety of bar and its patrons);
Luneau v. Peerless Ins. Co., 170 Vt. 442, 443, 446, 750
A.2d 1031 (2000) (exclusion applied when insured,
engaged as disc jockey at wedding, knocked over negli-
gently stacked speakers when he got into fight with
one wedding guest about song insured had forgotten to
play, injuring another wedding guest). Although courts
often have placed emphasis on the fact that the incident
occurred at a work site during normal business hours;
see 9A S. Plitt et al., Couch on Insurance (3d Ed. Rev.
2015) § 128.19, p. 128-58 (‘‘liabilities in connection with
workplace altercations have been held to necessarily
involve the insured’s business pursuits and therefore
fall within the business pursuits exclusion’’); the
absence of such facts has not precluded application of
the exclusion as a matter of law when an employment
relationship existed and related to the basis of the dis-
pute. See, e.g., Smith v. Sears, Roebuck & Co., 191 W.
Va. 563, 566, 447 S.E.2d 255 (1994) (material question of
fact as to whether business pursuits exclusion applied
because, although initial disagreement between
coworkers was related to business, conflict occurred
after they left workplace).
In other circumstances in which the business nexus
of the activity itself is not clear, the purpose of the
activity may be a decisive factor. Compare South Caro-
lina Farm Bureau Mutual Ins. Co. v. S.E.C.U.R.E.
Underwriters Risk Retention Group, supra, 347 S.C.
339–40 (exclusion did not apply to dog owner’s liability
for dog bite sustained by minor at office because dog
was family pet; it was not kept for security purposes,
as mascot or any function associated with business),
with Safeco Ins. Co. v. Leslie, 276 Or. 221, 224, 554 P.2d
469 (1976) (exclusion applied to injury from accidental
discharge of gun kept by service station employee when
he brought gun to work to protect large amounts of
cash that accumulated at station on Friday nights). In
addition, injuries sustained in social gatherings initiated
by the employer may be deemed to arise out of a busi-
ness pursuit if the purpose of the gathering related to
the business, i.e., improving employee relationships or
workplace morale. See West American Ins. Co. v. Cali-
fornia Mutual Ins. Co., 195 Cal. App. 3d 314, 323–24,
240 Cal. Rptr. 540 (1987). The mere fact that a dual
social and business purpose exists will not, in and of
itself, take the activity outside the scope of the exclu-
sion.11 See id., 324; see also New London County Mutual
Ins. Co. v. Nantes, supra, 303 Conn. 756–58.
In addition, even when no business purpose reason-
ably could motivate or be furthered by the action, use
of the employment relationship or status to effectuate
the harmful act may provide the requisite causal con-
nection. Thus, sexual assaults have been deemed to
arise out of a business pursuit when the employer or
employee used his or her position of authority or trust
attendant to that position to perpetrate the acts. See,
e.g., Armed Forces Ins. Exchange v. Transamerica Ins.
Co., 88 Haw. 373, 381, 386, 966 P.2d 1099 (App. 1998)
(sexual assaults by public housing inspector against
residents arose from business pursuit because inspec-
tor gained entry to residents’ homes purportedly to
conduct inspections, which was function performed as
part of employment), cert. denied sub nom. Armed
Forces Ins. Exchange v. Sagawa, Hawaii Supreme
Court, Docket No. 21183 (October 26, 1998); Rubin v.
United Services Automobile Assn., Docket No. 04-P-
1629, 2006 WL 1543972, *1–2 (Mass. App. June 6, 2006)
(dentist’s sexual harassment of employee at office and
at YMCA arose out of business pursuit; latter ‘‘was
related to, linked to, or associated with her employ-
ment’’ because dentist paid employee for her time dur-
ing both periods [internal quotation marks omitted]);
Greenman v. Michigan Mutual Ins. Co., supra, 173
Mich. App. 90, 94 (employer’s sexual harassment of
employee occurred at law firm where both worked;
additional support for finding that act arose from busi-
ness pursuit is that claim could not legally exist but
for employer-employee relationship); Frankenmuth
Mutual Ins. Co. v. Kompus, 135 Mich. App. 667, 677,
354 N.W.2d 303 (1984) (insured therapist ‘‘was able to
commit the complained-of acts [against patients] appar-
ently only because of the trust imposed in him as doctor
by his patients’’), appeal denied, Supreme Court of
Michigan, Docket Nos. 74742, 74743 (February 28,
1985); Zimmerman v. Safeco Ins. Co. of America, 605
N.W.2d 727, 731 (Minn. 2000) (‘‘[B]ecause the sexual
harassment for which [the insured] was found liable
can only happen in the workplace—for example, the
creation of a hostile work environment—by definition
it falls within the ‘business pursuits’ exclusion. . . .
[T]he liability-creating conduct is based upon the
employment relationship in the business setting.’’). But
see Scheer v. State Farm Fire & Casualty Co., 708 So.
2d 312, 313 (Fla. App.) (where court did not distinguish
between two policies at issue, respectively including
‘‘caused by’’ and ‘‘arising out of’’ business pursuits,
exclusions did not bar duty to defend physician alleged
to have touched employees’ breasts and buttocks
because acts did not arise out of his profession and
conduct was not primarily undertaken in furtherance
of business interest), review denied, 719 So. 2d 893 (Fla.
1998); Miller v. McClure, 326 N.J. Super. 558, 570, 742
A.2d 564 (App. Div. 1998) (deeming exclusion applica-
ble to hostile workplace environment sexual harass-
ment claims but deeming it inapplicable to any claims
not legally dependent on employment relationship),
aff’d, 162 N.J. 575, 745 A.2d 1162 (1999). A supporting
factor cited in harassment cases in which the exclusion
applied was that the conduct directly impacted the
employee’s employment. See, e.g., Greenman v. Michi-
gan Mutual Ins. Co., supra, 94 (claim of employer’s
sexual harassment could not have existed outside
employer-employee relationship); Zimmerman v.
Safeco Ins. Co. of America, supra, 731 (sexual harass-
ment led to employee’s constructive discharge, occur-
rence that could not take place outside business
environment).
In light of this case law, it is clear that neither the
trial court nor the Appellate Court applied the proper
standard for ‘‘arising out of’’ a business pursuit. The
trial court’s continuity and profit motive test conflated
the test for determining whether a business pursuit
exists with the one for determining whether the act
giving rise to the injury arose out of such a pursuit. It
appears to have compounded that misstep in two ways.
First, the court focused on Kotulsky’s actions as they
may have related to the actual profitability of the defen-
dant’s business, rather than considering the defendant’s
purported statements to, and actions toward, Socci as
they may have related to his business and/or the employ-
ment relationship.12 Second, the court’s analysis indi-
cated that an act could satisfy the exclusion only if it
was exclusively in furtherance of the business pursuit;
consequently, any personal motive for that act would
negate application of the exclusion. However, equating
‘‘arising out of’’ with exclusively ‘‘in furtherance of’’
would render the former clearly more restrictive than
the descriptive terms used in Hogle. Indeed, such an
interpretation would render most tortious conduct
(even accidental) outside the scope of the business
pursuits exclusion, as such conduct rarely actually
furthers a business purpose. Moreover, an employer’s
misuse of the employer-employee relationship to
accomplish an end, whether partially or wholly moti-
vated by personal reasons, could satisfy the expansive
definition in Hogle of ‘‘arising out of.’’13
While the trial court’s approach was too restrictive,
the Appellate Court’s was too expansive. The Appellate
Court’s ‘‘but for’’ approach relied too heavily on Socci’s
employment status and the work based location at
which she sustained the injury. We agree with the Appel-
late Court that the requisite standard could be met if,
in addition to these facts, the false imprisonment was
a function of, or facilitated by, the employer-employee
relationship. See Nationwide Mutual Ins. Co. v. Pasiak,
supra, 161 Conn. App. 100. However, this is a factual
finding on which the trial court expressed no view.
Indeed, we cannot say on the basis of the limited
facts found by the trial court or the evidentiary record
whether the business pursuits exclusion applies as a
matter of law. There was additional evidence in the
Socci action relating to the matter raised by the Appel-
late Court on which the trial court made no findings,
which that court may consider on remand. See footnote
12 of this opinion. We express no view as to whether
the court must credit this evidence or the weight that
such evidence should be given if the court elects to
credit it.
IV
ALTERNATIVE GROUNDS FOR AFFIRMANCE
Because our conclusion entitles the plaintiffs only
to reconsideration of whether the business pursuits
exclusion bars indemnification, not judgment in their
favor, we consider the plaintiffs’ alternative grounds
for affirming in whole or in part the Appellate Court’s
judgment directing the trial court to enter such a judg-
ment. We disagree that any of these grounds requires
a directed judgment.
A
Workers’ Compensation Exclusion
The plaintiffs contend that indemnification is pre-
cluded under the umbrella policy’s exclusion for ‘‘[a]ny
insured’s obligation, including benefits required to be
paid under . . . workers’ compensation . . . [or] any
similar law.’’ They contend that the trial court improp-
erly equated this issue with the question of whether
the defendant had injured Socci in furtherance of his
business pursuit, when the proper focus should have
been on whether the Workers’ Compensation Act; Gen-
eral Statutes § 31-275 et seq.; applied to Socci. The plain-
tiffs claim that the act applied because (1) it was
uncontroverted that Socci was an employee of the con-
struction company and was injured at work, and (2)
Socci did not fall under an exclusion to employees
covered under the act, as the defendant contended. See
General Statutes § 31-275 (9) (B) (‘‘ ‘Employee’ shall
not be construed to include . . . (iv) [a]ny person
engaged in any type of service in or about a private
dwelling provided he is not regularly employed by the
owner or occupier over twenty-six hours per week’’).
Even if we accept both of these contentions, the plain-
tiffs have failed to prove that this exclusion applies.
The plaintiffs assume that this exclusion is satisfied
if the insured would have been obligated under the act
to pay workers’ compensation benefits had a claim for
such benefits been made.14 They have not established,
however, that any such obligation exists in the present
case. By their own admission, the construction com-
pany was Socci’s employer, a fact evidenced by the
paychecks issued to Socci by the construction company
that were admitted into evidence at the declaratory
judgment trial. See General Statutes § 31-275 (10)
(defining employer to include limited liability corpora-
tion). As such, the defendant, the insured, presumably
would not personally incur any obligation to pay a com-
pensable workers’ compensation claim had Socci timely
filed a notice of claim. Even if the defendant could be
deemed legally obligated for the workers’ compensation
obligations of the construction company, an argument
the plaintiffs have not made; cf. Patel v. Flexo Convert-
ers U.S.A., Inc., 309 Conn. 52, 58, 68 A.3d 1162 (2013)
(discussing when high ranking person may be deemed
alter ego of corporation); the plaintiffs have proffered
no authority to establish that Socci’s injuries would
have been compensable under the act. In order for
Socci’s emotional distress injuries to have been com-
pensable, they would have had to have been caused by
physical injury or occupational disease. See General
Statutes § 31-275 (16) (B) (ii). The trial court found to
the contrary. See footnote 9 of this opinion.
B
Abuse Exclusion
The plaintiffs also claim that indemnification is
barred under the umbrella policy exclusion for ‘‘per-
sonal injury resulting from acts or omissions relating
directly or indirectly to . . . physical or mental abuse
. . . .’’ They contend that the defendant’s conduct and
its effect on Socci satisfied the common meaning of
mental abuse, pointing to the construction of abuse
under a similar policy exclusion in Safeco Ins. Co. of
America v. Vecsey, Docket No. 3:08cv833 (JBA), 2010
WL 3925126, *9–10 (D. Conn. September 30, 2010), on
which several other courts have relied. Although the
trial court found that the defendant had not abused
Socci and distinguished Vecsey on its facts, the plaintiffs
claim that this finding was contrary to the evidence
and the award of punitive damages, and that factual
differences between the cases miss the mark. We con-
clude that the abuse exclusion does not apply as a
matter of policy construction, an additional ground
cited in the trial court’s decision denying the plaintiffs’
second motion for summary judgment as to this
exclusion.
In Vecsey, the policy covered an accident that
resulted in bodily injury, but excluded bodily injury
‘‘arising out of physical or mental abuse . . . .’’ Id.,
*2. The United States District Court for the District
of Connecticut assumed that a permanent eye injury
sustained by the insured’s wife when her eye had been
struck by a carrot thrown by the insured, after he had
yelled and cursed at her, was a covered occurrence,
but concluded that it fell under the abuse exclusion.
Id., *3–4, *7. After consulting dictionaries, the court
concluded that abuse means the improper use or mal-
treatment of another ‘‘that deviates from a baseline
societal understanding of what is appropriate conduct,’’
that the act need not be motivated by a subjective expec-
tation that bodily injury will occur, and that there need
not be a pattern of conduct. Id., *9–11.
Although a literal application of these definitions
would seem to encompass almost every wrongful act,
we observe that Vecsey and the other cases cited by
the plaintiffs in which the requisite abuse was found
involved threatening, harassing, screaming, and/or ver-
bally or physically intimidating conduct. See, e.g., Bars-
tow v. Shea, 196 F. Supp. 2d 141, 150 (D. Conn. 2002);
Havsy v. Washington State Dept. Health Board of
Osteopathic Medicine & Surgery, Docket No. 53198-1-
I, 2004 WL 2153876, *16–17 (Wn. App. September 27,
2004), review denied, 154 Wash. 2d 1009, 113 P.3d 481
(2005). Nonetheless, even assuming that the District
Court properly construed ‘‘abuse’’ in Vecsey, we dis-
agree that this exclusion applies in the present case.
There is a significant difference between the policy
in Vecsey and the one in the present case. Here, the
covered occurrence is not simply an unspecified acci-
dent causing an unspecified injury (i.e., bodily injury)
but a specific intentional act—false imprisonment—
expressly covered by the policy. Applying the District
Court’s definition of abuse to the policy in the present
case would render the promise of coverage for false
imprisonment largely illusory, as almost every such tort
would involve some form of physical or mental ‘‘abuse’’
as defined in Vecsey.15 See Safeco Ins. Co. of America
v. Vecsey, supra, 2010 WL 3925126, *9–11. Even
assuming it is technically possible to commit false
imprisonment without inflicting physical or mental mal-
treatment, we are not persuaded that a layperson would
understand the coverage to be so limited. See Northrop
v. Allstate Ins. Co., 247 Conn. 242, 251, 720 A.2d 879
(1998) (declining to interpret policy to yield result that
would render coverage ‘‘largely illusory’’); Hansen v.
Ohio Casualty Ins. Co., 239 Conn. 537, 544, 687 A.2d
1262 (1996) (‘‘[i]n general, courts will protect the rea-
sonable expectations of applicants, insureds, and
intended beneficiaries regarding the coverage afforded
by insurance contracts’’ [internal quotation marks
omitted]).
Conversely, when the maltreatment undertaken to
commit false imprisonment is of such independent con-
sequence to distinguish it from that inherent in the
intentional tort, a layperson reasonably would under-
stand that the abuse exclusion would bar coverage. Cf.
Auto-Owners Ins. Co. v. Todd, 547 N.W.2d 696, 699–700
(Minn. 1996) (concluding that intentional acts exclusion
barred coverage for claim of false imprisonment, even
though false imprisonment was covered occurrence,
because that action was simply means by which insured
accomplished intentional plan to commit sexual
assault). Acts of such independent consequence, how-
ever, plainly were not implicated in the present case.
C
Public Policy
The plaintiffs next contend that the Appellate Court’s
judgment should be affirmed in part as to their obliga-
tion to indemnify the defendant for punitive damages.
They contend that, in the absence of an express grant of
coverage for punitive damages, it would violate public
policy to construe a policy to indemnify a wrongdoer
for punitive damages. As support, they cite Bodner v.
United Services Automobile Assn., 222 Conn. 480, 497–
98, 610 A.2d 1212 (1992), wherein this court stated that
‘‘a tortfeasor may not protect himself from liability by
seeking indemnity from his insurer for damages, puni-
tive in nature, that we imposed on him for his own
intentional or reckless wrongdoing.’’ We are not per-
suaded that Bodner controls the present case.
Bodner was a case focusing on policy considerations
specific to uninsured motorist coverage.16 See Caulfield
v. Amica Mutual Ins. Co., 31 Conn. App. 781, 786, 627
A.2d 466 (‘‘[n]otwithstanding policy language that
would permit coverage of common law [punitive] dam-
ages, the Bodner court concluded that public policy
considerations precluded such coverage in the context
of uninsured motorist coverage’’ [emphasis added]),
cert. denied, 227 Conn. 913, 632 A.2d 688 (1993). Such
coverage serves a different function than coverage
under a personal liability policy: ‘‘The public policy
established by the uninsured motorist statute is that
every insured is entitled to recover for the damages he
or she would have been able to recover if the uninsured
motorist had maintained a policy of liability insurance.
. . . [A]llowing a recovery of punitive damages under
uninsured motorist coverage would, in effect, place the
insured in a better position than would exist if the
tortfeasor had been insured. . . . Further . . . [the
insurer here] has no relationship . . . to the tortfeasor
. . . and cannot allocate even a portion of the risk of
punitive damages to the tortfeasor by increasing the
tortfeasor’s insurance rates.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Bodner v. United Services Automobile Assn., supra,
222 Conn. 499. None of those concerns is implicated
in the present case.
In addition, Bodner did not involve, as does the pre-
sent case, a policy expressly providing coverage for an
intentional act, namely, false imprisonment. A leading
treatise argues that to refuse to enforce a contract cov-
ering punitive damages for intentional acts under such
circumstances would allow insurers to avoid an obliga-
tion for which they bargained, and to be enriched
unjustly: ‘‘[I]n those various contracts where the com-
pany insures against liability for false arrest, false
imprisonment, malicious prosecution, libel, slander,
and invasion of privacy, [punitive] damages—under cur-
rent judicial practices—almost necessarily will follow.
It is not seemly for insurance companies to collect
premiums for risks which they voluntarily undertake,
and for which they actively advertise in competition
with other companies, and then when a loss arises to
say ‘It is against public policy for us to pay this award.’ ’’
12 J. Appleman, Insurance Law and Practice (1981)
§ 7031, p. 155; accord St. Paul Mercury Ins. Co. v. Duke
University, 849 F.2d 133, 136 (4th Cir. 1988) (applying
this majority position); Fluke Corp. v. Hartford Acci-
dent & Indemnity Co., 102 Wash. App. 237, 242–43, 246–
48, 7 P.3d 825 (2000) (concluding that public policy did
not bar coverage for punitive damages when policy
covered intentional tort of malicious prosecution and
did not expressly exclude punitive damages), aff’d, 145
Wash. 2d 137, 34 P.3d 809 (2001).
Notably, the plaintiffs do not contend that it would
violate public policy to indemnify the defendant for
compensatory damages awarded for the same inten-
tional conduct. Common-law punitive damages under
our law, which, unlike most jurisdictions, are limited
to litigation costs, also help to make the injured plaintiff
whole. See Bodner v. United Services Automobile
Assn., supra, 222 Conn. 492; see also Bifolck v. Philip
Morris, Inc., 324 Conn. 402, 455, 152 A.3d 1183 (2016)
(our common-law measure of punitive damages is
‘‘indisputably one of the most conservative in the
nation’’ [internal quotation marks omitted]). Accord-
ingly, in the absence of a public policy reflected in our
laws against providing such coverage, we conclude that,
under the facts of the present case, the plaintiffs are
bound to keep the bargain they struck, which includes
coverage for common-law punitive damages for false
imprisonment.
V
SCOPE OF DISCOVERY AND TRIAL
Finally, we turn to the plaintiffs’ claim that the trial
court improperly deprived them of a full and indepen-
dent hearing on all of the issues relevant to coverage
of the defendant’s liability. Specifically, they contend
that the trial court improperly determined that they
were bound by the general verdict in the Socci action
and limited to the evidence adduced in that case
because, in the trial court’s view, the plaintiffs had an
opportunity in that action (1) to intervene to submit
interrogatories to ascertain the basis of the jury’s ver-
dict, and (2) to develop a factual record relating to the
policy exclusions. The plaintiffs make the related claims
that, as a result of these improper determinations, the
trial court improperly denied them the opportunity to
develop their coverage defenses in discovery and at
trial and then improperly construed evidentiary gaps
against them. The plaintiffs acknowledge that the trial
court did not preclude all discovery, but contend that
the belated and limited basis on which discovery was
permitted was too little, too late.
We observe that the record is not a model of clarity
or consistency regarding either the plaintiffs’ claims or
the trial court’s rulings relating to them. However, our
conclusions in the preceding sections of this opinion
make it unnecessary to resolve some of the thornier
questions raised by the plaintiffs,17 as well as the defen-
dant’s responsive procedural arguments. We have con-
cluded that, with the possible exception of the business
pursuits exclusion, none of the exclusions raised on
appeal negates the plaintiffs’ duty to indemnify the
defendant for liability incurred as a result of Socci’s
false imprisonment, an act that both parties agree the
evidence and verdict support. Our conclusions rest
solely on legal grounds, not on deficiencies in the evi-
dence. The business pursuits exclusion remains the
only policy exclusion on which a factual basis could
exist to negate the plaintiffs’ indemnification obligation.
Accordingly, the sole issue remaining is the proper pro-
cedure on remand on this issue. We conclude that the
plaintiffs are entitled to litigate the business pursuits
issue without being limited to the evidentiary record
in the Socci action.
We begin with the question of what coverage matters
may be litigated by an insurer following judgment
against its insured, and then turn to the question of
what evidence may be used to adjudicate such matters.
The general rule regarding the effect of a judgment
against an insured on an insurer who has an indepen-
dent duty to defend its insured is set forth in the
Restatement (Second) of Judgments. It provides: ‘‘(1)
When an indemnitor has an obligation to indemnify an
indemnitee (such as an insured) against liability to third
persons and also to provide the indemnitee with a
defense of actions involving claims that might be within
the scope of the indemnity obligation, and an action is
brought against the indemnitee involving such a claim
and the indemnitor is given reasonable notice of the
action and an opportunity to assume its defense, a judg-
ment for the injured person has the following effects
on the indemnitor in a subsequent action by the indem-
nitee for indemnification:
‘‘(a) The indemnitor is estopped from disputing the
existence and extent of the indemnitee’s liability to the
injured person; and
‘‘(b) The indemnitor is precluded from relitigating
those issues determined in the action against the
indemnitee as to which there was no conflict of interest
between the indemnitor and the indemnitee.
‘‘(2) A ‘conflict of interest’ for purposes of this Section
exists when the injured person’s claim against the
indemnitee is such that it could be sustained on differ-
ent grounds, one of which is within the indemnitor’s
obligation to indemnify and another of which is not.’’
(Emphasis added.) 2 Restatement (Second), Judgments
§ 58 (1982).
A leading treatise further elaborates on the circum-
stances under which an insurer will not be collaterally
estopped from relitigating issues relating to coverage
in a subsequent declaratory judgment action. One such
circumstance occurs ‘‘[w]hen, because of a conflict of
interest, the insurer hires an independent counsel, who
does not also represent the company’s interests, to
defend the insured . . . .’’ (Footnote omitted.) 1 A.
Windt, Insurance Claims & Disputes: Representation of
Insurance Companies and Insureds (6th Ed. 2013)
§ 6:22, p. 6-266. Thus, for example, an insurer that had
reserved its right to challenge coverage on the basis of
the purported intentional nature of the insured’s act was
not bound by a verdict finding the insured negligent.
See State Farm Fire & Casualty Co. v. Mabry, 255 Va.
286, 288, 497 S.E.2d 844 (1998). The insurer was not a
party to the action, and it was not in privity with the
insured defendant because its reservation of rights
established that its position diverged from that of its
insured on this issue. See id., 290; see also Shelter
Mutual Ins. Co. v. Vaughn, 300 P.3d 998, 1001–1003
(Colo. App. 2013). The insurer could not assert its posi-
tion in conjunction with providing a defense to its
insured; doing so would violate its duty to the insured
by exposing the insured to the possibility of punitive
damages. See State Farm Fire & Casualty Co. v. Mabry,
supra, 291; see also Metropolitan Life Ins. Co. v. Aetna
Casualty & Surety Co., 249 Conn. 36, 61, 730 A.2d 51
(1999) (defense counsel provided by insurer owes
exclusive duty of loyalty to insured).
Significantly, ‘‘[c]ollateral estoppel works . . . only
with regard to facts necessarily adjudicated in the law-
suit against the insured. Gratuitous statements in judg-
ments, therefore, adjudicating facts that would result
in the creation of coverage, but which facts did not
truly determine the insured’s liability and the amount
of the damages should not give rise to collateral estop-
pel.’’ 1 A. Windt, supra, § 6:22, p. 6-261; accord Hartford
Accident & Indemnity Co. v. Villasenor, 21 Ariz. App.
206, 209, 517 P.2d 1099 (1974) (‘‘The application of this
doctrine of collateral estoppel . . . is limited to those
facts essential to the judgment of tort liability. An
insurer, when sued upon the policy, can present any
defenses not inconsistent with the judgment against its
insured.’’); see also Dowling v. Finley Associates, Inc.,
248 Conn. 364, 373–74, 727 A.2d 1245 (1999) (Collateral
estoppel ‘‘precludes a party from relitigating issues and
facts actually and necessarily determined in an earlier
proceeding between the same parties or those in privity
with them upon a different claim. . . . If an issue has
been determined, but the judgment is not dependent
upon the determination of the issue, the parties may
relitigate the issue in a subsequent action.’’ [Citations
omitted.]). Indeed, ‘‘[t]he insurer should be afforded an
opportunity to raise and have independently adjudi-
cated any issue relating to its own liability as long as
the resolution of that issue in its favor will not be incon-
sistent with the findings already made in the underlying
action.’’ 1 A. Windt, supra, § 6:25, pp. 6-279 through
6-280.
Although there are some efficiency arguments
favoring litigating coverage issues in the underlying tort
action giving rise to that obligation, there are three
principal reasons cited as to why facts material only
to coverage would not properly be adjudicated in the
underlying tort action. First, defense counsel provided
by the insurer would violate his or her duty to the
insured by proffering evidence intended to prove a lack
of coverage. See Seaco Ins. Co. v. Devine Brothers,
Inc., Docket No. CV-00-0374721, 2003 WL 21958391, *5
(Conn. Super. July 30, 2003) (citing cases); see also 1
A. Windt, supra, § 4:22, p. 4-214 and § 6:27, p. 6-291
(independent counsel hired by insurer should not be
asked to comment on coverage issues, let alone be
made aware of such issues). Consequently, it has been
held that defense counsel hired by an insurer could
not request special interrogatories or special verdicts
concerning coverage issues because of counsel’s exclu-
sive duty to represent the insured. See Universal
Underwriters Ins. Co. v. East Central Alabama Ford-
Mercury, Inc., 574 So. 2d 716, 723 (Ala. 1990). Second,
facts pertaining to insurance coverage may have no
relevance to the issues of liability and damages that the
trier of fact must decide in the underlying action. See
Chenkus v. Dickson, Docket No. 282007, 1990 WL
283216, *1 (Conn. Super. September 7, 1990) (noting
that, because case pertains to negligent and intentional
assault, it had nothing to do with whether those acts
are covered under contract of insurance). A related
third reason is that courts must exercise care not to
allow evidence that would indicate that the defendant
tortfeasor is insured against liability, as the availability
of insurance is generally inadmissible due to its poten-
tial to prejudice the trier of fact. See Conn. Code Evid.
§ 4-10 and commentary; Cromer v. Sefton, 471 N.E.2d
700, 704 (Ind. App. 1984) (‘‘Clearly the policy of the law
is to keep the issue of insurance out of personal injury
litigation. . . . To permit intervention by the insurer
to litigate coverage in the principal tort case against its
insured would distract the trier and literally force the
plaintiff to become embroiled in a matter in which she
does not yet have an interest.’’).18
Stated broadly then, an insurer may litigate coverage
issues previously litigated on which it had a conflict of
interest with its insured or coverage issues on which
material facts were not litigated and necessary to the
underlying judgment. The next question is what evi-
dence may be considered to decide such issues.
When the coverage issue previously was litigated,
one treatise argues that the issue should be resolved
only by reference to the record in the underlying case.
See 1 A. Windt, supra, § 6:26, pp. 6-282 through 6-283;
see also DaCruz v. State Farm Fire & Casualty Co., 268
Conn. 675, 688, 846 A.2d 849 (2004) (‘‘duty to indemnify
depends upon the facts established at trial and the the-
ory under which judgment is actually entered in the
case’’ [internal quotation marks omitted]). But there is
a fair body of authority taking the contrary position. See,
e.g., United States Steel Corp. v. Hartford Accident &
Indemnity Co., 511 F.2d 96, 100 (7th Cir. 1975) (Illinois
law); Spears v. State Farm Fire & Casualty Ins., 291
Ark. 465, 467, 469, 725 S.W.2d 835 (1987); Bay State
Ins. Co. v. Wilson, 108 Ill. App. 3d 1096, 1104–1105, 440
N.E.2d 131 (1982), aff’d, 96 Ill. 2d 487, 451 N.E.2d 880
(1983); Snodgrass v. Baize, 405 N.E.2d 48, 53–54 (Ind.
App. 1980); Wear v. Farmers Ins. Co. of Washington,
49 Wash. App. 655, 661, 745 P.2d 526 (1987) (‘‘[T]he jury’s
interrogatories and the verdict in the liability trial are
irrelevant to the determination of [the insured’s] intent
and the existence of coverage under the [the insured’s]
policy. How, then, is the issue of the insured’s intent
to be determined? It can only be determined at a hearing
at which the trial court takes evidence on the coverage
issue. Here, instead of taking testimony at the declara-
tory judgment action on the issue of intentional action,
the parties elected to submit the record from the liability
trial to the trial court.’’); see also Duke v. Hoch, 468
F.2d 973, 984 (5th Cir. 1972) (Florida law; allowing for
additional evidence if coverage issue can not be decided
on basis of record in underlying case).
When the issue was not litigated or insufficient fac-
tual findings were made to make a determination on
the coverage issue, there is consensus that additional
evidence properly may be introduced.19 See 1 A. Windt,
supra, § 6:26, pp. 6-281 through 6-282 n.2; see also, e.g.,
State Farm Mutual Automobile Ins. Co. v. Coughran,
303 U.S. 485, 486–87, 58 S. Ct. 670, 82 L. Ed. 970 (1938)
(insurer proffered evidence on issue to prove that cover-
age was unavailable for judgment rendered against
insured on issue that was not litigated in underlying
tort action).
Applying these principles to the present case, it is
clear that the plaintiffs are entitled to a de novo trial
on the issue of coverage in light of the business pursuits
exclusion. There was no privity between the plaintiffs
and the defendant as to that issue because they did not
share an interest in proving that the defendant’s false
imprisonment of Socci arose out of his business pur-
suits. Indeed, it was in the interest of both the defendant
and Socci to minimize or avoid the presentation of facts
that could have established a connection between the
defendant’s interests as the owner of his construction
company and the wrongful actions he was alleged to
have undertaken. More fundamentally, whether that
causal connection existed was neither actually litigated
nor necessarily determined. Socci’s claims were in no
way dependent on proving that the defendant’s wrong-
ful acts arose out of his business pursuits. The fact that
some evidence relevant to this issue was presented in
the Socci action is immaterial.
It also is of no consequence that the plaintiffs did
not seek permission to intervene in the Socci action.
Even if an unexercised right to intervene could be rele-
vant; but see Mount Vernon Fire Ins. Co. v. Morris, 90
Conn. App. 525, 538–39, 877 A.2d 910 (2005) (reaching
contrary conclusion), appeal dismissed, 281 Conn. 544,
917 A.2d 538 (2007); the plaintiffs had no such right,20
and it plainly would have been an abuse of discretion
to allow permissive intervention to litigate this policy
exclusion in the Socci action. Therefore, on remand,
the plaintiffs are entitled to appropriate discovery and
a trial de novo to determine whether they have met
their burden of proving that the business pursuits exclu-
sion bars coverage.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the trial court’s judgment with respect to count
two of the complaint and to remand the case to the
trial court for further proceedings consistent with
this opinion.
In this opinion ROGERS, C. J., and PALMER, ROB-
INSON and D’AURIA, Js. concurred.
* This case was originally argued before a panel of this court consisting
of Justices Palmer, Eveleigh, McDonald, Espinosa, and Robinson. Thereafter,
Chief Justice Rogers and Justice D’Auria were added to the panel and have
read the briefs and appendices, and listened to a recording of the oral
argument prior to participating in this decision.
The listing of justices reflects their seniority on this court as of the date
of oral argument.
1
The complaint in the declaratory judgment action also named three other
defendants: Pasiak Construction Services, LLC, the company owned and
operated by Pasiak; and Sara Socci and Kraig Socci, the plaintiffs in the
underlying tort action. The claims in the present action arise under a policy
issued to Pasiak as the sole policyholder, and the Soccis have not participated
in this appeal. Accordingly, we refer to Pasiak throughout this opinion as
the defendant and to the remaining defendants by name. Because Kraig
Socci’s only claim is derivative of Sara Socci’s claims, any reference to Socci
is to Sara Socci.
2
The same judge presided over both actions. For a more comprehensive
discussion of the facts giving rise to the tort action, see Socci v. Pasiak,
137 Conn. App. 562, 565–67, 49 A.3d 287, cert. denied, 307 Conn. 919, 54
A.3d 563 (2012).
3
Although the trial court made no findings regarding this discussion,
Socci’s testimony indicated that she had heard statements in the exchange
between Kotulsky and the defendant indicating that Kotulsky was angry
with the defendant because he believed that the defendant had been intimate
with a woman with whom Kotulsky was, or had been, involved.
4
In the declaratory judgment action, the plaintiffs produced evidence
that the defendant also had been arrested in connection with this incident,
eventually pleaded nolo contendere to two misdemeanor offenses, and paid
a fine of $3015.
5
The complaint also alleged reckless infliction of emotional distress, but
the jury was not charged on that count.
6
Prior to the filing of the plaintiffs’ second motion for summary judgment,
the defendant filed a twelve count counterclaim against the plaintiffs, alleg-
ing various acts of bad faith, misrepresentation, and breach of contract. The
trial court granted a motion to bifurcate the declaratory judgment complaint
and the counterclaim. Although the defendant’s counterclaim remains pend-
ing before the trial court, the decision on the declaratory judgment action
was an appealable final judgment because the court’s decision disposed of
all counts of the plaintiffs’ complaint. See Practice Book § 61-2.
7
‘‘Under the general verdict rule, if a jury renders a general verdict for
one party, and no party requests interrogatories, an appellate court will
presume that the jury found every issue in favor of the prevailing party.
. . . Thus, in a case in which the general verdict rule operates, if any ground
for the verdict is proper, the verdict must stand; only if every ground is
improper does the verdict fall. . . . A party desiring to avoid the effects of
the general verdict rule may elicit the specific grounds for the verdict by
submitting interrogatories to the jury.’’ (Citations omitted; internal quotation
marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371–72,
727 A.2d 1245 (1999).
8
The defendant suggests that, applying the logic of Imperial Casualty &
Indemnity Co., supra, 246 Conn. 329, we should conclude that the business
pursuits exclusion in his policy is ambiguous and must be construed in his
favor to afford coverage. Specifically, he contends that the policy is ambigu-
ous as to whether that exclusion applies to both intentional and accidental
acts. However, the ambiguity identified in Imperial Casualty & Indemnity
Co. would dictate that the policy coverage extends to both types of acts,
not that the exclusion does not apply to either type of act.
9
Socci’s emotional distress (whether negligently or intentionally inflicted)
is not an enumerated personal injury. Nor is it a covered bodily injury
because bodily injury is defined to exclude emotional distress unless caused
by a physical injury, and the trial court found that the evidence established
at most the converse—that Socci’s emotional distress may have caused or
exacerbated existing physical symptoms. Socci’s claim of negligence would
not give rise to a covered bodily injury for similar reasons. Although in
submissions to the court, the defendant occasionally referred to the claim
of negligence as a claim for ‘‘wrongful detention,’’ which is a type of personal
injury specified in the policy, the trial court characterized wrongful detention
as an intentional act. The defendant has provided no analysis regarding
the meaning of the wrongful detention provision or its relationship to the
exclusions at issue.
10
Cases from other jurisdictions must be critically examined because
the business pursuits exclusion is often accompanied by an exception for
activities that are ordinarily incident to nonbusiness pursuits. See, e.g.,
Hennings v. State Farm Fire & Casualty Co., 438 N.W.2d 680, 684 (Minn.
App. 1989). In the present case, no such exception is included in the defen-
dant’s umbrella policy, although a similar exception is included in the busi-
ness pursuits exclusion in the defendant’s homeowners policy.
When such an exception is present, some courts have excluded from
coverage only those occurrences that are exclusively in furtherance of the
business pursuit or that could not be accomplished outside the employment
relationship. See, e.g., Farmers Ins. Exchange v. Sipple, 255 N.W.2d 373,
375 (Minn. 1977); New Jersey Property Liability Guaranty Assn. v. Brown,
174 N.J. Super. 629, 633, 417 A.2d 117 (App. Div.), cert. denied, 85 N.J. 462,
427 A.2d 561 (1980); see also Crane v. State Farm Fire & Casualty Co., 5
Cal. 3d 112, 118, 485 P.2d 1129, 95 Cal. Rptr. 513 (1971) (when there is dual
purpose, nonbusiness pursuit exception to exclusion applies). Other courts
have rejected such a broad reading of the exclusion. See, e.g., Armed Forces
Ins. Exchange v. Transamerica Ins. Co., 88 Haw. 373, 379, 966 P.2d 1099
(App. 1998), cert. denied sub nom. Armed Forces Ins. Exchange v. Sagawa,
Hawaii Supreme Court, Docket No. 21183 (October 26, 1998); Martinelli v.
Security Ins. Co. of New Haven, 490 S.W.2d 427, 432 (Mo. App. 1972) (citing
Illinois and Michigan cases).
11
But see footnote 10 of this opinion, which recognizes that some courts
apply a more stringent approach when the exclusion includes an exception.
12
Socci’s testimony reflects numerous additional facts on which the trial
court’s decision is silent. For example, Kotulsky was targeting Socci’s ‘‘boss.’’
Because Socci was a new employee, the defendant periodically stopped by
the office to see whether Socci had any questions. After the incident, the
defendant anxiously and repeatedly expressed a concern to Socci that Kotul-
sky’s actions would ‘‘ruin’’ his business, and did so as part of a two-pronged
argument as to why she should not report the incident to the police. When
she told the defendant that she wanted to leave the office, he told her, ‘‘It’s
business as usual.’’ Although Socci was too distraught to perform any of
her usual tasks, she viewed her presence in acquiescence to the defendant’s
demands as having ‘‘worked all day.’’ When he and Socci left the office to
meet with Taranto to discuss the incident, the defendant directed Socci to
leave her personal effects at the office. The defendant stopped at a construc-
tion site on the way to the meeting with Taranto and spoke with two workers
there. Socci announced to the defendant that she could no longer work for
him, and he relayed that concern to Taranto when the three met. Taranto
was instrumental in Socci’s hiring and training, and she was intimately
involved in the defendant’s business affairs. Socci and Taranto knew each
other from having previously worked for the same employer for several
years, but never had any relationship outside of work. The defendant allowed
Socci to leave close to the time that her normal workday was scheduled
to end.
13
Under workers’ compensation, an injury sustained by an employee when
performing a personal errand for his or her employer may be deemed to
arise out of and in the course of the employment, often under the logic that
the employee usually has no choice in the matter. See, e.g., Hebert v. CIGNA,
637 So. 2d 1221, 1224–25 (La. App. 1994); Keene v. Insley, 26 Md. App. 1,
8–10 and nn. 3–6, 337 A.2d 168 (1975) (citing authorities); Keasey v. Mitzel
Bros., 135 Pa. Super. 460, 463, 5 A.2d 631 (1939); 27 N.Y. Practice Series,
Workers’ Compensation § 20:9, Lunch Break (2d Ed. Rev. May, 2017).
14
The plaintiffs’ interpretation of this exclusion raises numerous ques-
tions, none of which we need answer in the present case in light of their
inability to establish that the exclusion as interpreted by them applies.
15
The defendant suggests that this conflict would be resolved if we were
to construe the phrase ‘‘mental or physical abuse’’ to mean abuse of a sexual
nature. He contends that, because this exclusion refers to ‘‘a variety of
sexually based behaviors’’ (i.e., sexual molestation), the entire exclusion
should be read to refer only to such behaviors. We decline to adopt this
construction, as it is plainly not supported by the text. The clearest evidence
is the inclusion of both ‘‘harassment’’ and ‘‘sexual harassment’’ in the exclu-
sion, the former being rendered superfluous under the defendant’s con-
struction.
16
In making the statement upon which the plaintiffs rely, the court in
Bodner relied on a case that did not involve an uninsured motorist policy,
Tedesco v. Maryland Casualty Co., 127 Conn. 533, 18 A.2d 357 (1941).
However, Tedesco also raised materially different policy concerns from those
in the present case. It involved the question of indemnification for statutory
double damages, which were not intended to compensate the victim in any
way, but to punish the wrongdoer for an offense committed against the
state and designed to protect the public. Id., 536.
This court also relied on Tedesco in dicta in the context of a policy for
professional liability insurance when concluding that public policy prohib-
ited indemnification for punitive damages for an intentional tort, in that
case a dentist’s sexual assault of a patient. See St. Paul Fire & Marine Ins.
Co. v. Shernow, 222 Conn. 823, 824, 832 n.4, 610 A.2d 1281 (1992). Given the
serious criminal nature of the act and the professional obligations violated
in that case, it too is materially distinguishable from the present case.
17
The vexing questions include whether a general verdict in an underlying
action can serve as a basis for collateral estoppel in a subsequent action
to resolve insurance coverage issues, and whether such an effect depends
on the insurer having taken some action (through counsel it has provided
its insured or through party intervention) to avoid a general verdict. We
note that resolution of these questions is complicated by the conflicting
substantive and procedural approaches taken in various jurisdictions, as
well as by the varied factual permutations that bear on whether the issue
is one on which the insured or the insurer bears the burden of proof. See
generally 17 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 239:42,
p. 239-60 (acknowledging that question of whether there has been decision
on specific issue as to which preclusion is claimed can be particularly
problematic when there is ambiguous finding or jury verdict); 1 A. Windt,
Insurance Claims & Disputes: Representation of Insurance Companies and
Insureds (6th Ed. 2013) § 6.27, pp. 6-286 through 6-287 (discussing various
rules for allocating jury verdict between covered and noncovered claims
depending on burden of proof); see also C. McIlwain, ‘‘Clear As Mud: An
Insurer’s Rights and Duties Where Coverage Under a Liability Policy Is
Questionable,’’ 27 Cumb. L. Rev. 31 (1996–1997); F. Ryan & K. Gorak, ‘‘Split-
ting the Baby: The Insurer’s Duty To Notify the Insured of the Need for an
Allocated Verdict,’’ 24 Mealey’s Litigation Report: Insurance Bad Faith No.
15, p. 28 (December 9, 2010).
We also observe that, on appeal, the plaintiffs did not challenge the trial
court’s legal determination that the policy’s intentional acts exclusion does
not negate coverage for false imprisonment. Therefore, although they con-
tend that the trial court’s ruling improperly prohibited them from litigating
the issue of whether the defendant’s conduct was intentional, they would
not be entitled to relief even if they were allowed to do so. Indeed, as we
previously have indicated, the parties are in agreement that the defendant
committed an intentional act.
18
A few jurisdictions have concluded that, in order to appropriately safe-
guard against these concerns while at the same time ensuring consistency
between the underlying case and the insurance coverage case, a request
can be made to consolidate the cases and to address the insurance issues
in a supplemental or bifurcated proceeding with the same trier of fact that
decided the liability issues. See, e.g., Universal Underwriters Ins. Co. v.
East Central Alabama Ford-Mercury, Inc., supra, 574 So. 2d 723–24. But
see C. McIlwain, ‘‘Clear As Mud: An Insurer’s Rights and Duties Where
Coverage Under a Liability Policy Is Questionable,’’ 27 Cumb. L. Rev. 31,
51–52 (1996–1997) (arguing that such procedures often are not made avail-
able to insurers as matter of court’s discretion). This court has not yet
considered such rules or procedures, and we need not do so in the present
case given the limited issue on remand.
19
The defendant concedes that the plaintiffs could have proffered new
evidence on the exclusions that were not litigated, but contends that they
failed to take the proper steps to identify the information that they sought
and the need for such evidence. As to the latter point, we previously have
indicated that we need not consider whether the plaintiffs are entitled to a
new trial because they were improperly denied the right to proffer new
evidence. We have already determined that they are entitled to a new trial
and simply provide guidance as to what that procedure should encompass.
20
It appears to be broadly accepted that a personal liability insurer has
no right to intervene in the underlying action because its interest is contin-
gent before judgment has entered against its insured. See, e.g., Restor-A-
Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d
871, 874–75 (2d Cir. 1984); Universal Underwriters Ins. Co. v. East Central
Alabama Ford-Mercury, Inc., supra, 574 So. 2d 723; see also Lodigensky
v. American States Preferred Ins. Co., 898 S.W.2d 661, 664–66 (Mo. App.
1995) (insurer not entitled to intervene as of right in tort action against its
insured because duty to provide coverage would only arise, if at all, after
adverse judgment has been entered against insured and judgment in personal
injury action would not bind insurer on issue of coverage it has reserved).