Warzecha v. USAA Casualty Ins. Co. ( 2021 )

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KEITH WARZECHA v. USAA CASUALTY
INSURANCE COMPANY
(AC 43984)
Bright, C. J., and Cradle and Bishop, Js.
Syllabus
The plaintiff, K, a homeowner, was insured under a homeowners insurance
policy issued by the defendant insurance company. K was named as a
defendant in a separate action, in which it was alleged that K had stalked
and harassed a family, and the claims against K included, inter alia,
negligent infliction of emotional distress. K made a claim for coverage
relating to the separate action under the insurance policy, which the
defendant denied. Thereafter, K brought the present action against the
defendant claiming that the defendant had a duty to provide K with a
legal defense in the separate action and to indemnify. The trial court
determined that the count alleging negligent infliction of emotional dis-
tress against K in the separate action did not allege that a bodily injury
had occurred and that, pursuant to the terms of the insurance policy,
bodily injury did not include claims for purely mental injury. The trial
court granted the defendant’s motion for summary judgment. On appeal,
K claimed that, in the separate action, the plaintiff’s allegation that her
emotional distress was so severe that it could cause physical illness
was sufficient for the trial court to conclude that a bodily injury was
alleged to have been sustained and, therefore, K was entitled to coverage
pursuant to the terms of his policy. Held that the trial court did not err
in rendering summary judgment for the defendant: the complaint against
K did not allege actual physical illness or injury but was required to
allege that K’s actions could have resulted in such in order to comply
with the pleading requirements for a claim for negligent infliction of
emotional distress, and, as the insurance policy explicitly excluded
purely mental injuries, this court was bound by that plain language
and could not read the policy differently to account for public policy
considerations, thus, pursuant to the terms of his insurance policy, K
was not entitled to coverage, and, accordingly, the defendant had neither
a duty to defend nor a duty to indemnify K.
Argued May 11—officially released July 27, 2021
Procedural History
Action, inter alia, to recover damages for breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Noble, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
Christopher P. Kriesen, with whom, on the brief, was
Emily Covey, for the appellant (plaintiff).
John W. Cannavino, Jr., with whom, on the brief,
was Lawrence L. Connelli, for the appellee (defendant).
Opinion
BRIGHT, C. J. The plaintiff, Keith Warzecha, appeals
from the summary judgment rendered by the trial court,
Noble, J., in favor of the defendant, USAA Casualty
Insurance Company, on the plaintiff’s two count
amended complaint, which alleged breach of contract
and sought a declaratory judgment. On appeal, the plain-
tiff claims that the court erred in concluding that he
was not entitled to liability coverage under the terms
of his insurance policy. We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In April, 2018, Cindy
Watson brought a three count complaint against the
plaintiff, alleging that he had ‘‘engaged in serial acts of
surveillance, stalking, and harassment of [Watson] and
her children, including taking photographs and videos
of them and their home.’’ At the time of the conduct
alleged by Watson, the plaintiff was insured under a
homeowners policy issued by the defendant which pro-
vided coverage ‘‘if a claim is . . . brought against any
insured for damages because of bodily injuries. . . .’’
(Internal quotation marks omitted.) After receiving Wat-
son’s complaint, the plaintiff made a claim for coverage
under his insurance policy,1 which the defendant
denied. Thereafter, the plaintiff brought a two count
amended complaint against the defendant, in which he
(1) asserted a breach of contract claim based on the
defendant’s failure to provide him with coverage, and
(2) sought a declaratory judgment that the terms of his
insurance policy required the defendant to provide him
with a legal defense and indemnity. Both parties then
filed motions for summary judgment. The court granted
the defendant’s motion for summary judgment in its
entirety and denied the plaintiff’s motion. This appeal
followed.
Before addressing the merits of the plaintiff’s claim,
we set forth the applicable standards of review. ‘‘The
standard of review of a trial court’s decision granting
summary judgment is well established. Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . Our review of the trial court’s decision to
grant . . . summary judgment is plenary. . . . On
appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Citations omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d
1 (2018).
Our standard of review for interpreting insurance
policies is also well settled. The construction of an
insurance policy presents a question of law that we
review de novo. R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., 333 Conn. 343, 364, 216 A.3d
629 (2019). Insurance policies are interpreted based on
the same rules that govern the interpretation of con-
tracts. New London County Mutual Ins. Co. v. Zachem,
145 Conn. App. 160, 164, 74 A.3d 525 (2013). In accor-
dance with those rules, ‘‘[t]he determinative question
is the intent of the parties . . . . If the terms of the
policy are clear and unambiguous, then the language,
from which the intention of the parties is to be deduced,
must be accorded its natural and ordinary meaning.
. . . In determining whether the terms of an insurance
policy are clear and unambiguous, [a] court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms. . . . As with
contracts generally, a provision in an insurance policy
is ambiguous when it is reasonably susceptible to more
than one reading. . . . Under those circumstances, any
ambiguity in the terms of an insurance policy must be
construed in favor of the insured . . . .’’ (Internal quo-
tation marks omitted.) Id., 164–65.
The plaintiff claims that, under the terms of his insur-
ance policy, the defendant has a duty to defend and a
duty to indemnify him in Watson’s legal action. We
disagree.
An insurer’s duty to defend ‘‘is determined by refer-
ence to the allegations contained in the [underlying]
complaint.’’ (Internal quotation marks omitted.)
DaCruz v. State Farm Fire & Casualty Co., 268 Conn.
675, 687, 846 A.2d 849 (2004). The duty to defend ‘‘does
not depend on whether the injured party will success-
fully maintain a cause of action against the insured but
on whether [the complaint] stated facts which bring the
injury within the coverage.’’ (Internal quotation marks
omitted.) Security Ins. Co. of Hartford v. Lumbermens
Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107(2003). ‘‘If an allegation of the complaint falls even possi-
bly within the coverage, then the insurance company
must defend the insured.’’ (Internal quotation marks
omitted.) Moore v. Continental Casualty Co., 252 Conn.
405, 409, 746 A.2d 1252 (2000). An insurer’s duty to
defend is broader in scope than its duty to indemnify.
DaCruz v. State Farm Fire & Casualty Co., supra, 688.
Accordingly, when an insurer does not have a duty to
defend, it also will not have a duty to indemnify. Id.
Watson’s three count complaint against the plaintiff
alleges invasion of privacy (count one), intentional
infliction of emotional distress (count two), and negli-
gent infliction of emotional distress (count three). Only
the third count, negligent infliction of emotional dis-
tress, has any basis for coverage under the plaintiff’s
insurance policy.2 The question before us, then, is
whether the third count alleges a claim for which the
plaintiff is entitled to insurance coverage. We conclude
that it does not.
The plaintiff’s insurance policy provides liability cov-
erage, including a legal defense and indemnity, ‘‘[i]f a
claim is made or a suit is brought against any insured
for damages because of bodily injury . . . .’’ (Internal
quotation marks omitted.) The policy defines ‘‘bodily
injury’’ as ‘‘physical injury, sickness or disease . . . .’’
The policy further states that ‘‘bodily injury’’ does not
include ‘‘mental injuries such as: emotional distress,
mental anguish, humiliation, mental distress, or any
similar injury unless it arises out of physical injury to
the person claiming a mental injury.’’ On the basis of
this language, the plaintiff’s policy must be read as
providing coverage only for damages that result from
bodily injury. Bodily injuries, including mental injuries
that arise out of physical injuries and physical injuries
that arise out of mental injuries, are covered under the
policy. Mental injuries alone, however, will not trigger
coverage.
In the underlying complaint, Watson never alleged
that a bodily injury occurred. Although count three of
Watson’s complaint alleged that she suffered ‘‘emo-
tional distress so severe that it could cause physical
illness’’; (emphasis added); such a claim does not allege
that she actually experienced a physical injury. Count
three alleges instead that Watson suffered only emo-
tional injuries. Such an allegation is insufficient for cov-
erage under the plaintiff’s policy. As previously
explained, there is no coverage under the plain language
of the policy for purely mental injuries, such as emo-
tional distress. The policy also cannot be read to provide
coverage for mental injuries that are so severe that they
could, but have not yet, resulted in bodily injury.
We are unpersuaded by the plaintiff’s argument that
Watson’s allegation that she could suffer from a physical
injury ‘‘is sufficient, even [if] only slightly so, to lead
the court to conclude that a bodily injury is alleged to
have been sustained by the claimant.’’ To prevail on a
claim of negligent infliction of emotional distress, the
plaintiff is required to prove that his or her emotional
distress was ‘‘severe enough that it might result in ill-
ness or bodily harm . . . .’’ Hall v. Bergman, 296 Conn.
169, 182 n.8, 994 A.2d 666 (2010). Accordingly, the
phrase ‘‘could cause physical illness’’ included in Wat-
son’s complaint was necessary to meet the pleading
requirements for a claim of negligent infliction of emo-
tional distress. Actual physical illness or injury is not
necessary for such a claim and Watson’s complaint
pleads no such illness or injury. Thus, this wording
alone is not sufficient to establish that a physical injury
occurred and triggered the defendant’s duty to defend.
We are also unconvinced by the plaintiff’s argument
that public policy interests require us to conclude that
his insurance policy provides coverage for purely men-
tal injuries. Because his policy explicitly excludes such
injuries from the definition of bodily injury, we are
bound by that plain language and cannot read the policy
differently to account for public policy considerations.
See Karas v. Liberty Ins. Corp., 335 Conn. 62, 109, 228
A.3d 1012 (2019) (construing insurance policy in accor-
dance with its plain language despite compelling policy
interests to contrary).
Therefore, because Watson’s complaint does not allege
a bodily injury, the plaintiff is not entitled to coverage
under his insurance policy. Accordingly, the defendant
has neither a duty to defend nor a duty to indemnify
the plaintiff, and the trial court did not err in rendering
summary judgment in favor of the defendant.3
The judgment is affirmed.
In this opinion the other judges concurred.
1
At all relevant times during this case, the plaintiff’s insurance policy was
in full force and effect and the plaintiff was a named insured under the policy.
2
The plaintiff concedes, and we agree, that his policy does not provide
coverage for counts one and two because the policy excludes coverage for
intentional conduct.
3
This conclusion renders it unnecessary for us to consider the defendant’s
alternative ground for affirmance, namely, that the plaintiff’s alleged acts
under count three were intentional and that they, therefore, were excluded
from coverage under the policy.