Connecticut Ins. Guaranty Assn. v. Drown ( 2014 )

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CONNECTICUT INSURANCE GUARANTY ASSOCIATION v. JOSHUA
DROWN ET AL.—DISSENT
McDONALD, J., with whom EVELEIGH, J., joins, dis-
senting. I disagree with the majority that the corporate
coverage under the professional liability insurance pol-
icy issued to the defendant Associated Women’s Health
Specialists, P.C. (Health Specialists), unambiguously
excludes medical malpractice claims seeking to hold
that professional corporation vicariously liable solely
on the basis of the negligence of one of its physicians,
France Bourget. I would conclude that the policy is
ambiguous as to this issue, and that, in accordance with
the reasonable expectation of the insured, the policy
should be construed in favor of coverage. Accordingly,
I would conclude that the Appellate Court improperly
reversed the trial court’s judgment in favor of the defen-
dants, Susan Drown and Rodney Drown, individually
and on behalf of their minor son, Joshua Drown, and
Health Specialists, and remanded the case with direc-
tion to render judgment in favor of the plaintiff, Con-
necticut Insurance Guaranty Association (association).1
See Connecticut Ins. Guaranty Assn. v. Drown, 134
Conn. App. 140, 159, 37 A.3d 820 (2012). Therefore, I
respectfully dissent.
As the majority acknowledges, ‘‘[u]nder our law, the
terms of an insurance policy are to be construed
according to the general rules of contract construction.
. . . The determinative question is the intent of the
parties, that is, what coverage the . . . [insured]
expected to receive and what the [insurer] was to pro-
vide, as disclosed by the provisions of the policy. . . .
If the terms of the policy are clear and unambiguous,
then the language, from which the intention of the par-
ties is to be deduced, must be accorded its natural and
ordinary meaning. . . . However, [w]hen the words of
an insurance contract are, without violence, susceptible
of two [equally reasonable] interpretations, that which
will sustain the claim and cover the loss must, in prefer-
ence, be adopted. . . . [T]his rule of construction
favorable to the insured extends to exclusion clauses.’’
(Internal quotation marks omitted.) Liberty Mutual Ins.
Co. v. Lone Star Industries, Inc., 290 Conn. 767, 795–96,
967 A.2d 1 (2009).
Moreover, ‘‘[o]ur analysis of the language of the insur-
ance contract is governed by the well established princi-
ple of insurance law that policy language will be
construed as laymen would understand it and not
according to the interpretation of sophisticated under-
writers . . . . Thus, we must decide whether, reading
the policy from the perspective of a reasonable layper-
son in the position of the purchaser of the policy, the
policy is ambiguous. Ceci v. National Indemnity Co.,
225 Conn. 165, 168, 622 A.2d 545 (1993).’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Israel v. State Farm Mutual Automobile Ins.
Co., 259 Conn. 503, 508–509, 789 A.2d 974 (2002); accord
Berry v. Federal Kemper Life Assurance Co., 136 N.M.
454, 471, 99 P.3d 1166 (App. 2004) (‘‘The concept of
reasonableness has a somewhat specialized meaning in
the insurance context . . . . When evaluating compet-
ing interpretations of a policy, the courts should view
the language issue from the standpoint of a hypothetical
reasonable insured. . . . Thus, the question the court
should ask itself initially is what understanding a rea-
sonably intelligent, non-lawyer lay person might glean
from the policy, in light of the usual meaning of the
words and the circumstances leading to purchase of
the policy. . . . Specialized knowledge of the insur-
ance industry case law, academic treatments, and indus-
try norms or standards should not enter into the
inquiry.’’ [Citations omitted; internal quotation marks
omitted.]), cert. denied, 100 P.3d 672 (2004), cert.
denied, 544 U.S. 920, 125 S. Ct. 1640, 161 L. Ed. 2d
477 (2005).
With these principles in mind, I turn to the pertinent
provisions of the professional liability insurance policy
issued to Health Specialists by its now insolvent insurer,
Medical Inter-Insurance Exchange (Exchange). The
declarations page of the policy, entitled ‘‘PHYSICIANS
AND SURGEONS PROFESSIONAL LIABILITY CLAIMS
MADE INSURANCE,’’2 reflects that Exchange made
available three types of coverage under such policies:
‘‘A. Individual Professional Liability’’ (coverage A or
individual coverage); ‘‘B. Corporate/Partnership Liabil-
ity’’ (coverage B or corporate coverage); and ‘‘C. Para-
medical Employee Liability’’ (coverage C or
paramedical coverage).3 The declarations page provides
that insurance is afforded only for the coverage parts
‘‘for which a premium charge or ‘No Charge’ is indi-
cated.’’ Although there is no such indication for any of
the coverage parts, there is a policy limit set forth for
coverage B only—$2 million for each medical incident
and $5 million aggregate. It is undisputed that the policy
affords coverage B/corporate coverage, and no other
coverage, to the named insured, Health Specialists.
Section I of the policy, ‘‘COVERAGE AGREEMENTS,’’
provides in relevant part with respect to coverage B:
‘‘[Exchange] will pay on behalf of [Health Specialists]
all sums that [Health Specialists] shall become legally
obligated to pay as damages because of . . . [i]njury
arising out of the rendering of or failure to render . . .
professional services4 by any person for whose acts or
omissions . . . [Health Specialists] is legally responsi-
ble.’’ (Footnote added.) It is undisputed that, barring
the application of an exclusion or limitation, vicarious
liability for the negligence of a physician employed by
a corporation would fall within the scope of corpo-
rate coverage.
Section II sets forth policy exclusions. Exclusion (i)
of that section provides in relevant part: ‘‘This insurance
does not apply to liability of [Health Specialists] . . .
(i) corporation/partnership under Coverage Agreement
B with respect to injury arising solely out of acts or
omissions in the rendering or failure to render profes-
sional services by individual physicians or nurse anes-
thetists, or by any paramedical for whom a premium
charge is shown on the declarations page.’’ (Empha-
sis added.)
The majority has effectively adopted the Appellate
Court’s opinion in concluding that a claim of vicarious
liability predicated solely on the negligence of a physi-
cian acting for the professional corporation is unambig-
uously excluded from coverage under exclusion (i).
This interpretation is based solely on technical rules of
grammar and a rule of construction of questionable
application to the present case. In particular, in conclud-
ing that the phrase ‘‘for whom a premium charge is
shown on the declarations page’’ modifies only the last
category of employees—paramedicals—the majority
focuses on: (1) the comma and phrase ‘‘or by’’ preceding
‘‘any paramedical for whom a premium charge is shown
on the declarations page’’; and (2) the last antecedent
rule of construction. For the reasons that follow, I am
not persuaded that application of these technical rules
yields the only reasonable interpretation of the policy
at issue.
Rules of grammar are simply one tool of construction,
and many jurisdictions recognize that such rules cannot
supersede a reasonable, contextual reading of an insur-
ance contract. See, e.g., Senn’s Administratrix v. Mich-
igan Mutual Liability Co., 267 S.W.2d 526, 527 (Ky.
App. 1954) (‘‘[i]n the construction of all contracts the
endeavor of the courts is to give the contract under
investigation such a construction as will comport with
the reasonable intent of the parties in making the con-
tract, although this construction may not conform to
strict rules of grammar or punctuation’’ [internal quota-
tion marks omitted]); Philadelphia Indemnity Ins. Co.
v. Maryland Yacht Club, Inc., 129 Md. App. 455, 479,
742 A.2d 79 (1999) (‘‘[A]lthough the court, in construing
a contract, will not ignore the rules of grammar and
the grammatical construction of the language used, the
grammatical construction will not be followed if a dif-
ferent construction will better give effect to the inten-
tion of the parties as shown by the whole instrument
and the circumstances . . . . Grammar is one helpful
tool, among many, for discerning the meaning of
words.’’ [Citations omitted; internal quotation marks
omitted.]); Jarrard v. Continental Casualty Co., 250
Or. 119, 124, 440 P.2d 858 (1968) (‘‘[t]he rules of gram-
mar . . . are technical and, as in the case of statutes,
will not be permitted to control construction of a con-
tract when to do so would be to render the language
meaningless or absurd’’); cf. Tuohey v. Martinjak, 119
Conn. 500, 503, 177 A. 721 (1935) (‘‘[i]n construing stat-
utes the insertion or omission of commas will often be
overlooked if thereby the fair purpose and intent of the
law would be effected’’).
Moreover, the last antecedent rule of construction5
only has been applied by this court thus far in the
construction of statutes, and even then ‘‘only to the
extent that no contrary intention appears and the con-
struction does not otherwise impair the meaning of the
sentence.’’ (Internal quotation marks omitted.) Republi-
can Party of Connecticut v. Merrill, 307 Conn. 470, 491,
55 A.3d 251 (2012). This court has not had occasion to
consider whether this rule should be applied to con-
tracts generally or insurance contracts specifically. But
see Goodwin v. Woodbridge Country Club, Inc., 170
Conn. 191, 198, 365 A.2d 1158 (1976) (rejecting party’s
construction of contract based on application of rule,
noting that application of rule would result in construc-
tion that was strained and contrary to natural and ordi-
nary meaning of words and phrases used). Although
many other jurisdictions have recognized the rule’s
application in construing contracts generally, some
jurisdictions have questioned its utility in ascertaining
the intent of the parties to the contract, while others
that have applied the rule generally limit its application
through other rules of construction.6 In addition to the
concerns articulated by these jurisdictions, there also
is reason to question the rule’s application to insurance
contracts specifically, where we are required to view
the policy’s meaning from the perspective of the reason-
able layperson in the position of the purchaser of the
policy. See Ceci v. National Indemnity Co., supra, 225
Conn. 168. Nonetheless, even if I were to assume that
this rule applies in the construction of insurance con-
tracts, for the reasons that follow, it would at best lend
support to one plausible construction, not be out-
come determinative.
Because we are required to consider the policy from
the perspective of the reasonable insured layperson, I
cannot help but note at the outset that the majority’s
interpretation seems counterintuitive in its real world
application. Neither the majority, nor the Appellate
Court, nor the association has offered a reasonable
explanation as to why Health Specialists, or any other
obstetrical practice for that matter, would purchase
a corporate liability policy that would exclude from
coverage the most obvious source of its potential liabil-
ity, the negligence of its physicians, under most circum-
stances.7 Indeed, the title of the policy, ‘‘PHYSICIANS’ &
SURGEONS’ PROFESSIONAL LIABILITY INSURANCE
CLAIMS—MADE,’’ read together with the broad grant
of insurance coverage for any ‘‘[i]njury arising out of
the rendering of . . . professional services by any per-
son for whose acts or omissions the corporation/part-
nership [Health Services] is legally responsible,’’ would
seem to suggest that coverage for such persons is pre-
cisely the policy’s main purpose. Nor has a logical expla-
nation been advanced as to why an insurer would
provide no corporate coverage if a physician ‘‘solely’’
was at fault for the injuries, but would provide full
coverage if the physician was 99 percent at fault for
the injuries at issue and a person to whom the exclusion
does not apply was 1 percent at fault because such
injury was not caused solely by the physician’s acts.
Such a construction would surely encourage a profes-
sional corporation to require that a nonscheduled para-
medical be involved in every interaction between a
physician and a patient to facilitate a claim of shared
negligence and thereby negate the exclusion.
Despite these real world implications, as this court
previously noted when the association’s construction
of this identical policy exclusion in another case yielded
a different counterintuitive result, ‘‘we would be bound
to apply [the exclusion] if the policy terms unambigu-
ously and inexorably led to the conclusion that the
parties manifested such an intention. See Liberty
Mutual Ins. Co. v. Lone Star Industries, Inc., [supra,
290 Conn. 796] ([t]he court must conclude that the lan-
guage 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).’’ (Inter-
nal quotation marks omitted.) Johnson v. Connecticut
Ins. Guaranty Assn., 302 Conn. 639, 648, 31 A.3d 1004
(2011). I cannot say with a high degree of certainty that
the policy excludes the Drowns’ claims.
Turning back to the text of the policy, exclusion (i)
provides that corporate coverage will not apply with
respect to injuries ‘‘solely’’ resulting from ‘‘professional
services by individual physicians or nurse anesthetists,
or by any paramedical for whom a premium charge is
shown on the declarations page.’’8 Thus, the exclusion
refers to three categories of professionals: physicians,
nurse anesthetists, and paramedicals. More particu-
larly, exclusion (i) refers to ‘‘individual physicians or
nurse anesthetists’’ and ‘‘any paramedical . . . .’’
(Emphasis added.) Accordingly, the comma and the
phrase ‘‘or by’’ preceding ‘‘any paramedical’’ simply
could be intended to make clear that ‘‘individual’’ modif-
ies both physicians and nurse anesthetists.9 Cf. State v.
Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983) (noting
that ‘‘while punctuation is a recognized aid to statutory
construction, it is not conclusive,’’ and that ‘‘the disjunc-
tive ‘or’ has often been construed as ‘and’ ’’).
Indeed, the construction advanced by the majority
appears to render the term ‘‘individual’’ superfluous. As
the Appellate Court noted, the plural form of the word
physician is broad enough to encompass one or more
than one physician. Connecticut Ins. Guaranty Assn.
v. Drown, supra, 134 Conn. App. 153. ‘‘We previously
have recognized the canon of construction of insurance
policies that a policy should not be interpreted so as
to render any part of it superfluous. . . . Since it must
be assumed that each word contained in an insurance
policy is intended to serve a purpose, every term will
be given effect if that can be done by any reasonable
construction . . . .’’ (Internal quotation marks omit-
ted.) R.T. Vanderbilt Co. v. Continental Casualty Co.,
273 Conn. 448, 468, 870 A.2d 1048 (2005). Thus, under
this rule, the defendants’ interpretation would be pre-
ferred.
It also is important to view exclusion (i) in context
with the policy as a whole. I note that § III of the policy,
which sets forth ‘‘PERSONS INSURED,’’ provides that
each of the following is an insured: ‘‘[U]nder Coverage
A, any individual named in the declarations page as
insured’’ and ‘‘under Coverage C [paramedical liability],
any employee of an insured under Coverage A or Cover-
age B for whom a premium charge is shown in the
declarations page.’’ (Emphasis added.) Thus, an insured
under coverage A is an ‘‘individual named in the decla-
rations page,’’ just as exclusion (i) refers to ‘‘individual
physicians or nurse anesthetists . . . .’’10 (Emphasis
added.) Paramedicals, by contrast, need not be individ-
ually named to be insured under coverage C.11 More-
over, although the majority reasonably points out that
the phrase ‘‘for whom a premium charge is shown on
the declarations page’’ is used only in relation to para-
medical coverage in § III, when that phrase is used in
exclusion (i), it is broad enough to encompass both
named individuals (coverage A), for whom there pre-
sumably would be a corresponding premium, and para-
medicals (coverage C), for whom a premium would be
shown even if they are not named individually.
I also note that exclusion (i) is the last of nine enumer-
ated exclusions. Each of the preceding eight exclusions
addresses relatively narrow categories of acts or related
remedies, many of which appear fairly standard, such
that an insured would not expect coverage for such
acts. For example, in § II (b) of the policy coverage is
excluded for injuries arising from a criminal act, and
in § II (d) coverage is excluded for an act unauthorized
in accordance with licensing requirements or restric-
tions. The narrower reading of exclusion (i) advanced
by the defendants renders the scope of that provision
more consistent with the narrow scope of the exclu-
sions that precede it, whereas the association’s expan-
sive construction makes exclusion (i) practically
swallow the rule of coverage prominently provided at
the outset of the policy.
Finally, I note that Health Specialists’ vicarious liabil-
ity under coverage B for injuries caused by the negli-
gence of physicians or nurse anesthetists already is
limited by § VIII (g) of the policy. Section VIII of the
policy sets forth conditions of insurance. Section VIII
(g) provides in relevant part that coverage ‘‘shall not
apply to any individual, partnership or corporation
insured with respect to claims arising out of the acts
or omissions of . . . physician or nurse anesthetist
employees of an individual, partnership or corporation
insured . . . unless such persons have individual cov-
erage for such claims at the time they are made under
a physicians’ and surgeons’ or similar professional
liability insurance policy with limits of liability equal
to or greater than the limits of liability of the insured
under this policy.’’12 (Emphasis added.) Physicians and
nurse anesthetists are required by statute in this state,
and apparently most states, to carry malpractice insur-
ance in a prescribed amount. See General Statutes
§§ 20-11b and 20-94c; see also Butler v. Flint Goodrich
Hospital of Dillard University, 607 So. 2d 517, 521 (La.
1992), cert. denied sub nom. Butler v. Medley, 508 U.S.
909, 113 S. Ct. 2338, 124 L. Ed. 2d 249 (1993). Such
individual insurance would be a primary, and equal or
greater, source of recovery for any judgment rendered
solely due to the negligence of such professionals.
Therefore, I would conclude that the defendants have
advanced a construction of the policy supporting cover-
age that is at least equally reasonable to the one
advanced by the association, especially when the text
of the policy is viewed in the light of Health Specialists’
purpose in obtaining the policy. Moreover, because the
parties both have advanced reasonable constructions,
I believe we properly may consider undisputed extrinsic
evidence; Hartford Accident & Indemnity Co. v. Ace
American Reinsurance Co., 284 Conn. 744, 762–63, 936
A.2d 224 (2007); namely, the six year period during
which Exchange offered a defense to Health Specialists
without reserving its rights under exclusion (i).13
Accordingly, the policy should be construed in favor
of coverage.
I respectfully dissent.
1
In light of this conclusion, I do not need to determine whether the
association is liable because of the breach by Medical Inter-Insurance
Exchange, the insolvent insurer, of its duty to defend under the policy
at issue.
2
As the Appellate Court previously explained in connection with an
Exchange policy, ‘‘ ‘claims-made’ ’’ simply means ‘‘that coverage under the
policy depended on the date that the insured reported the claim to the
[insurer].’’ Mitchell v. Medical Inter-Insurance Exchange, 101 Conn. App.
721, 723, 923 A.2d 790, cert. denied, 284 Conn. 903, 931 A.2d 265 (2007).
3
The policy does not define paramedical employees. Webster’s Third New
International Dictionary (2002) defines paramedical as ‘‘concerned with
supplementing the work of medical personnel: having a secondary relation
to medicine . . . .’’ See also American Heritage Dictionary (3d Ed. 1992)
(‘‘[o]f, relating to, or being a person trained to give emergency medical
treatment or assist medical professionals’’); Stedman’s Medical Dictionary
(28th Ed. 2006) p. 1420 (‘‘[r]elated to the medical profession in an adjunctive
capacity, e.g., denoting allied health fields such as physical therapy or speech
pathology’’ or ‘‘[r]elating to a paramedic’’).
4
‘‘ ‘Professional services’ ’’ are defined in relevant part under § VI of the
policy as ‘‘services requiring specialized knowledge and mental skill in the
practice of the profession described in the declarations page . . . .’’ There
are, however, no professions described in the only declarations page in the
record, except to the extent that the page is entitled ‘‘PHYSICIANS AND
SURGEONS PROFESSIONAL LIABILITY CLAIMS MADE INSURANCE’’ and
a notation setting forth ‘‘FORMS AND ENDORSEMENTS (attached to this
policy at inception)’’ lists a form for ‘‘Physicians and Surgeons Professional
Liability Insurance Claims Made Policy.’’
5
The Appellate Court explained: ‘‘The last antecedent rule provides that
qualifying phrases, absent a contrary intention, refer solely to the last ante-
cedent in a sentence.’’ Connecticut Ins. Guaranty Assn. v. Drown, supra,
134 Conn. App. 151. The majority has applied this rule in concluding that
the phrase ‘‘for whom a premium charge is shown on the declarations page’’
applied only to the antecedent immediately preceding it—‘‘any paramedi-
cal’’—and not to the more remote antecedents—‘‘individual physicians or
nurse anesthetists . . . .’’
6
As a general matter, jurisdictions have applied this rule only when it
yields a construction that is consistent with a broader, contextual reading
of the contract. See, e.g., People ex rel. Lockyer v. R.J. Reynolds Tobacco
Co., 107 Cal. App. 4th 516, 530, 132 Cal. Rptr. 2d 151 (2003) (‘‘the last
antecedent rule is not immutable and should not be rigidly applied in all
cases’’ [internal quotation marks omitted]); Chandler-McPhail v. Duffey,
194 P.3d 434, 441 (Colo. App. 2008) (‘‘[W]e discern no reason why the last
antecedent rule should not be applied as a grammatical presumption in
determining the intent of the contracting parties. . . . As a presumption,
the rule is not inflexible and yields to any apparent contrary intention of
the drafting parties.’’ [Citations omitted; internal quotation marks omitted.]);
Gullett v. Van Dyke Construction Co., 327 Mont. 30, 36, 111 P.3d 220 (2005)
(‘‘[i]n interpreting contracts, this [c]ourt has followed a basic rule of gram-
matical construction that, absent the manifestation of a contrary intention,
qualifying words and phrases should be applied only to the words or phrases
immediately preceding, or in other words, the last antecedent’’ [internal
quotation marks omitted]); Wohl v. Swinney, 118 Ohio St. 3d 277, 279, 888
N.E.2d 1062 (2008) (‘‘[I]f there is contrary evidence that demonstrates that
a qualifying phrase was intended to apply to more than the term immediately
preceding it, we will not apply the last-antecedent rule so as to contravene
that intent. Before applying the last-antecedent rule, we must therefore
examine the contract as a whole to determine whether any contrary
intent appears.’’).
Some jurisdictions have questioned the rule’s utility in ascertaining intent.
See, e.g., Stanbalt Realty Co. v. Commercial Credit Corp., 42 Md. App. 538,
539, 401 A.2d 1043 (1979) (‘‘[t]his [last antecedent] rule of construction,
never adopted in Maryland, and of only marginal significance in the scattered
jurisdictions that have called upon it, is too frail a reed to carry the appellant’s
burden’’); id., 542 (‘‘[t]he great professors of contracts, [Samuel] Williston
and [Arthur] Corbin, in their respective multi-volume works do not even
recognize the existence of any ‘last antecedent rule’ ’’); see also Phoenix
Control Systems, Inc. v. Ins. Co. of North America, 165 Ariz. 31, 38, 796
P.2d 463 (1990) (Feldman, J., concurring) (‘‘I see no benefit and much harm
in using the doctrine of the last antecedent in construing contracts. Reliance
on such arcane, judicially adopted grammatical rules does not help us reach
the intentions of the parties. Surely, even if the parties had bargained for
the boilerplate language in this policy—something the record does not estab-
lish at all—it would be a fiction to pretend they drafted the language mindful
that its meaning would be ascertained through use of the doctrine of the
last antecedent.’’).
Related to this concern, at least one jurisdiction has concluded that the rule
cannot be used unless the court first concludes that the contract otherwise is
ambiguous. See, e.g., Miller v. Kase, 789 So. 2d 1095, 1098 (Fla. App. 2001).
Another jurisdiction suggested that its application cannot be used to yield
an inequitable result to which a reasonable party would not have agreed.
See, e.g., Business Development Services, Inc. v. Field Container Corp., 96
Ill. App. 3d 834, 839, 422 N.E.2d 86 (1981) (declining to apply last antecedent
rule when application contravened rule that ‘‘where a contract is susceptible
of two constructions, one of which makes it fair, customary and such as
prudent men would naturally execute, while the other makes it inequitable,
unusual, or such as reasonable men would not likely enter into, the interpre-
tation which makes a rational and probable agreement must be preferred’’
[internal quotation marks omitted]).
7
Before the trial court, the association conceded that the policy would
provide ‘‘very limited’’ coverage for a professional corporation on the basis
of its physicians’ conduct.
8
In their briefs to this court, the defendants have not argued that the
word ‘‘solely’’ renders exclusion (i) ambiguous. In their rebuttal to the
association’s oral argument before this court, however, they highlighted the
fact that the association’s construction of that term at oral argument was
inconsistent with the one that it previously had advanced. Specifically, in
its brief to this court and in the proceedings before the trial court, the
association indicated that exclusion (i) would not apply if an injury arose
partially out of the acts or omissions of a nurse employed by a hospital or
another medical practice having a different insurer. By contrast, at oral
argument before this court, it indicated that, in order for the exclusion not
to bar coverage, the injury must arise partially out of the acts or omissions
of a Health Specialists’ employee to whom the exclusion does not apply.
The defendants recognize that this inconsistency, which does not directly
bear on the case before us, would not entitle them to judgment in their
favor. See Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 15, 942
A.2d 334 (2008) (‘‘A party claiming that an insurance policy is ambiguous
as to a particular issue . . . must do more than establish that the policy
has some ambiguous language. . . . There must be a nexus between the
ambiguity and the disputed issue. . . . The ambiguous language must ren-
der the policy ambiguous as to the relevant issue.’’ [Emphasis omitted.]).
Nonetheless, the defendants suggested at oral argument that, if we conclude
that the applicable language is not ambiguous, we could remand the case
to allow them to prove that someone who was not covered by the exclusion
was partially negligent, together with Bourget. It is well settled that a party
may not advance one theory before the trial court and a different one on
appeal. Ahmadi v. Ahmadi, 294 Conn. 384, 395, 985 A.2d 319 (2009). More-
over, the fact that the association cannot settle on the scope of the exclusion
seems to lend force to the conclusion that the exclusion is ambiguous.
Nonetheless, I do not believe that it would be appropriate to remand the
case for such evidentiary proceedings when the complaint contained no
allegations of negligence as to another employee, except those withdrawn
against another Health Specialists’ physician.
9
Thus, although I agree with the association that the use of ‘‘any’’ before
paramedical indicates an intention to treat this category differently than
physicians or nurse anesthetists, I disagree that the defendants’ construction
would effectively rewrite the policy to exclude coverage for ‘‘ ‘any individual
physicians, nurse anesthetists, or paramedicals for whom a premium charge
is shown on the declarations page.’ ’’
10
The significance of this common terminology is supported by § VIII (g)
of the policy, discussed later in this opinion, which refers to ‘‘physician or
nurse anesthetist employees of an individual, partnership or corporation
insured . . . .’’ (Emphasis added.) Thus, a physician or nurse anesthetist
may be covered as an insured if individually named or may be covered as
an employee of an insured if not so named.
11
The distinction in § III (a) and (d) between ‘‘individual named’’ in cover-
age A and ‘‘any employee’’ in coverage C would seem to indicate that
paramedicals need not be named as individuals, but, rather, simply need to
establish their status as an employee of an insured in such a capacity. This
inference is supported by other cases indicating that paramedicals have
been treated under professional liability policies as a broad undifferentiated
class or as a subset of that class. Compare Johnson v. Connecticut Ins.
Guaranty Assn., supra, 302 Conn. 646 (association argued that ‘‘the exclu-
sion applies to paramedical employees as a class, as long as there is a
premium shown for that class on the declarations page’’), with Connecticut
Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 4, 942 A.2d 334 (2008) (declara-
tions page referenced by job title two nurse practitioners employed by
physician under paramedical employee coverage). Perhaps lower risks of
liability and greater turnover for such professionals weighs in favor of not
identifying such persons individually by name, as is necessary for physicians
and nurse anesthetists, who are required by law to carry a certain limit of
professional liability insurance. See General Statutes §§ 20-11b and 20-94c.
12
Bourget had individual coverage with another insurer in an amount equal
to Health Specialists’ coverage, thus satisfying the condition in § VIII (g).
13
I note that, although the defendants have repeatedly cited throughout
the course of these proceedings the fact that Exchange never asserted a
reservation of rights, the association has never contended at any stage of
these proceedings that there is any countervailing extrinsic evidence that
would support the conclusion that the parties understood the policy to
exclude claims like the one advanced in the present case. Most significantly,
the association never claimed in its appeal to the Appellate Court that, even
if the trial court properly determined that exclusion (i) of the policy was
ambiguous, it improperly rendered summary judgment without permitting
it to proffer extrinsic evidence of the parties’ intent before applying the rule
of contra proferentem. Therefore, I see no justification for remanding the
case to the trial court for an evidentiary hearing, as the concurring justices
seem to suggest is required.