Nationwide Mutual Ins. Co. v. Pasiak

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NATIONWIDE MUTUAL INSURANCE COMPANY
ET AL. v. JEFFREY S. PASIAK ET AL.
(SC 20617)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
The plaintiff insurance companies sought a judgment declaring that they
were not obligated to defend and indemnify the named defendant, J, a
business owner, under J’s homeowners and umbrella insurance policies
for damages awarded in a tort action brought against him by the defen-
dants S and S’s husband. The tort action stemmed from an incident that
occurred when S, who was employed by J’s construction company, P
Co., was working alone in P Co.’s office, which was located in J’s
home. A masked individual, K, entered J’s home and bound, gagged,
and blindfolded S. K put a gun to S’s head and told S that he would kill
her and her family if she did not open the safe, of which S claimed to
have no knowledge. K continued to threaten S for approximately forty-
five minutes. J then returned home and was attacked by K. J was eventu-
ally able to unmask K, revealing his identity as J’s longtime friend. After
S was untied, she asked to leave, but J prevented her from leaving or
calling the police, even after S informed him of the extent of K’s threats
to her and her family. S returned to her own home hours later, and the
police subsequently were contacted. At the time of the incident, J was
covered under a personal homeowners policy and an umbrella policy,
both of which were issued by the plaintiffs, but he did not hold a separate
commercial liability policy. The plaintiffs provided J with an attorney
to defend him in the tort action but indicated that they were reserving
their right to contest liability coverage. In the tort action against J, which
included a claim of false imprisonment, the jury returned a verdict for
S and her husband and awarded damages. Subsequently, in the present
declaratory judgment action, the trial court denied in part the plaintiffs’
motion for summary judgment as to the plaintiffs’ duty to indemnify J,
concluding, inter alia, that the plaintiffs were not entitled to summary
judgment under the umbrella insurance policy, which covered ‘‘personal
injury,’’ which, in turn, was defined to include false imprisonment. The
declaratory judgment action proceeded to trial, and the trial court subse-
quently rendered judgment for J, concluding that the plaintiffs were
required to indemnify him for his liability in the tort action. The plaintiffs
appealed to the Appellate Court, which reversed the trial court’s judg-
ment, concluding, inter alia, that the trial court incorrectly had deter-
mined that the business pursuits exclusion in the umbrella policy did
not apply. On the granting of certification, J appealed to this court,
which concluded that both the trial court and the Appellate Court applied
incorrect standards for determining whether the business pursuits exclu-
sion barred coverage. In reversing the Appellate Court’s judgment, this
court ordered that the case be remanded to the trial court for a trial
de novo on the business pursuits exclusion issue. On remand, the trial
court concluded that the plaintiffs had satisfied their burden of proving
that S’s false imprisonment or injury was connected with, had its origins
in, grew out of, flowed from, or was incident to J’s business pursuits
and, accordingly, that the business pursuits exclusion barred coverage
for J’s liability in the tort action and that the plaintiffs were not obligated
to indemnify J. On appeal to this court, J claimed, inter alia, that the
trial court had applied an incorrect standard when it determined that
the plaintiffs satisfied their burden of proving, by a preponderance of
the evidence, that the business pursuits exclusion barred coverage. Held:
1. The trial court properly applied the preponderance of the evidence stan-
dard to determine the factual question of whether the plaintiffs had
established that the business pursuits exclusion in the umbrella policy
barred coverage for J’s liability in the tort action:
The preponderance of the evidence standard governs factual determina-
tions required by a civil statute that is silent with respect to the applicable
standard of proof, and neither the statute (§ 52-29) nor any other legal
authorities governing claims for declaratory relief contain a heightened
standard of proof.
J could not prevail on his claim that, rather than applying the preponder-
ance of the evidence standard, the trial court should have construed the
business pursuits exclusion in favor of J, as the insured, unless it had
a ‘‘high degree of certainty’’ that the insurance policy language clearly
and unambiguously excluded J’s claim, as J improperly conflated the
tasks of construing the umbrella insurance policy, which this court did
in the prior appeal in this case, with the making of factual determinations
necessary to ascertain whether the exclusion unambiguously applied
under the circumstances, which the trial court properly did on remand.
In light of the unusual procedural posture of this case, there was no
need for the trial court, on remand, to apply the ‘‘high degree of certainty’’
standard or other principles of insurance contract interpretation, insofar
as this court, in the prior appeal in this case, had previously interpreted
the business pursuits exclusion and specified the factual situations in
which that exclusion would clearly and unambiguously apply; rather,
the trial court’s task on remand from that prior appeal was to engage
in a fact-specific inquiry to determine whether the plaintiffs had satisfied
their burden of proving, by a preponderance of the evidence, that S’s
false imprisonment or injury was connected with, had its origins in, grew
out of, flowed from, or was incident to J’s business pursuits.
2. J could not prevail on his claims relating to whether the trial court
correctly determined that the plaintiffs had carried their burden of proof
with respect to whether the business pursuits exclusion applied:
The trial court did not incorrectly find in the plaintiffs’ favor on the
ground that they had failed to produce new, credible evidence that was
not raised during the first trial.
Moreover, the trial court did not improperly fail to find that J’s evidence,
in the form of contemporaneous witness statements made on the day
of the incident, was the most credible and reliable form of evidence in the
record, and that the trial court’s conclusion that K’s actions constituted
an attack on P Co. was unsupported by evidence in the record, as the
record, viewed as a whole, contained evidence to support the factual
findings of the trial court.
Furthermore, the trial court did not improperly find in the plaintiffs’
favor on public policy grounds, as the public policy discussion in the
trial court’s memorandum of decision was not essential to the trial court’s
determination of the case and, therefore, was dictum.
Argued October 20, 2022—officially released February 21, 2023
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 the named defen-
dant in a separate action, brought to the Superior Court
in the judicial district of Stamford-Norwalk and trans-
ferred to the Complex Litigation Docket, where the
court, Brazzel-Massaro, J., denied the plaintiffs’ motion
for summary judgment and granted the motion for sum-
mary judgment filed by the named defendant et al. as
to the duty to defend under the policies; thereafter, the
court granted in part the plaintiffs’ motion for summary
judgment as to the duty to indemnify under the home-
owners insurance policy; subsequently, the case was
tried to the court, Brazzel-Massaro, J.; judgment for
the named defendant et al. with respect to the plaintiffs’
duty to indemnify under the umbrella insurance 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 with
respect to the duty to indemnify under the umbrella
policy and dismissed as moot that portion of their
appeal regarding their duty to defend under the umbrella
policy; thereafter, the named defendant et al., on the
granting of certification, appealed to this court, which
reversed the judgment of the Appellate Court with
respect to the duty to indemnify under the umbrella
policy and remanded the case to the Appellate Court
with direction to remand the case to the trial court for
further proceedings; subsequently, the case was tried
to the court, Hon. Charles T. Lee, judge trial referee,
who, exercising the powers of the Superior Court, ren-
dered judgment for the plaintiffs, from which the named
defendant et al. appealed. Affirmed.
David J. Robertson, with whom was Keith M. Blu-
menstock and, on the brief, Justin R. Bengtson, for the
appellants (named defendant et al.).
Robert D. Laurie, with whom, on the brief, were
Andrew P. Barsom and Heather L. McCoy, for the
appellees (plaintiffs).
Opinion
McDONALD, J. This case comes to us for the second
time following lengthy litigation of a declaratory judg-
ment action brought by the plaintiffs, Nationwide Mutual
Insurance Company and Nationwide Mutual Fire Insur-
ance Company, against the defendant Jeffrey S. Pasiak.1
The action concerned whether the plaintiffs were obli-
gated to indemnify the defendant, a business owner,
under a personal umbrella insurance policy for liability
arising from his false imprisonment of his company’s
employee at her workplace. Following a trial to the
court in 2012, the trial court issued a memorandum of
decision, concluding that the plaintiffs had a duty to
indemnify the defendant. The plaintiffs appealed the
decision to the Appellate Court, which reversed the
judgment of the trial court on the basis that the claim fell
within the business pursuits exclusion of the insurance
policy. See Nationwide Mutual Ins. Co. v. Pasiak, 161
Conn. App. 86, 89, 101–102, 127 A.3d 346 (2015). This
court subsequently reversed the judgment of the Appel-
late Court and concluded that the case must be remanded
to the trial court to allow the plaintiffs to conduct appro-
priate discovery and for a trial de novo to determine
whether the plaintiffs met their burden of proving that
the business pursuits exclusion bars coverage as a mat-
ter of fact. See Nationwide Mutual Ins. Co. v. Pasiak,
327 Conn. 225, 229–30, 270, 173 A.3d 888 (2017) (Pasiak
I). Following a trial de novo, the trial court found that
the plaintiffs satisfied their burden of establishing, by
a preponderance of the evidence, that the false impris-
onment arose out of the defendant’s business pursuits
and that the business pursuits exclusion bars coverage.
The trial court rendered judgment for the plaintiffs,
concluding that they have no obligation to indemnify
the defendant. The defendant now appeals from that
judgment, claiming, among other things, that the trial
court applied an incorrect standard on remand.
Our decision in Pasiak I, as supplemented by the
facts found by the trial court in the trial de novo, sets
forth the following relevant facts and procedural his-
tory. See id., 230–37. The defendant owned Pasiak Con-
struction Services, LLC (Pasiak Construction), which
had its sole office in the defendant’s home in Stamford.
The Pasiak Construction office was a room on the sec-
ond floor of the home, across the hall from the defen-
dant’s bedroom and next to a bathroom. The office had
three desks, including a computer workstation. The
defendant maintained a homeowners insurance policy
and an umbrella insurance policy through the plaintiffs
at the time of the incident. He did not hold any commer-
cial liability insurance for his business. Pasiak Con-
struction employed Sara Socci as a part-time office
manager with working hours of 9:30 a.m. to 2:30 p.m.,
four days per week. Socci worked out of the office in
the defendant’s home and would help with both the
defendant’s business tasks and personal tasks. Socci
worked exclusively for the defendant, whom she con-
sidered to be her boss. The defendant would regularly
stop by the office to work with Socci in the morning.
One day in May, 2006, Socci was working at her desk
when an individual entered the office wearing a mask
and carrying a gun. The individual demanded that Socci
show him to the defendant’s safe and open it. Socci
had no knowledge of the safe or its combination. The
individual became enraged, and he bound, gagged, and
blindfolded Socci and forced her down on the floor of
the bedroom. He put a gun to her head and told her he
would kill her and her family if she did not open the safe.
After the individual made approximately forty-five
minutes of continuous threats, the defendant returned
home and was attacked by the individual at the top of
the stairs. The defendant was eventually able to unmask
the individual, revealing his identity to be Richard Kotul-
sky, a longtime friend of the defendant. When the defen-
dant asked about Socci’s whereabouts, Kotulsky led
him to the bedroom, where the defendant made Kotul-
sky untie Socci. Kotulsky and the defendant went into
the office, and the defendant insisted that Socci join
them, notwithstanding her reluctance because of Kotul-
sky’s threats. Socci joined them in the office, where a
discussion revealed that Kotulsky was motivated to rob
the defendant because he was upset with the defendant
for his purported affair with Kotulsky’s girlfriend and
because he needed money to cover his debts. The defen-
dant was upset that Kotulsky tried to rob him and, in
his words, ‘‘tried to ruin his business.’’ The defendant
and Kotulsky reached some degree of resolution of their
dispute and spoke amicably.
Despite Socci’s requests to leave, the defendant pre-
vented her from leaving. Kotulsky begged Socci and
the defendant not to call the police. The defendant
asked Kotulsky to leave the room, and Socci informed
the defendant of the extent of Kotulsky’s threats to her
and her family. The defendant continued to refuse to
let Socci leave or to call the police. The defendant
brought Kotulsky back into the room, where Kotulsky
apologized to Socci, and Socci then assured him she
would not tell the police about the incident. Kotulsky
then left. Following Kotulsky’s exit, Socci resigned from
Pasiak Construction and informed the defendant that
she could no longer work for him because she was
terrified that Kotulsky would return. The defendant
remained fearful that Socci would call the police and
that Kotulsky would be harmed by his arrest. Socci
testified that she remembered the defendant having
been worried about her ruining his business. Socci testi-
fied that she did not try to leave because she was afraid
that the defendant would tell Kotulsky and that Kotul-
sky would harm her and her family. The trial court also
noted that she felt intimidated because the defendant
and Kotulsky were each twice as large as she was.
The defendant and Socci eventually decided to talk
to Denise Taranto, who was a former coworker of Socci
and a close friend of the defendant. Socci left her
belongings in the defendant’s home, and the two trav-
eled in the defendant’s car to meet with Taranto in
Greenwich. Along the way to Greenwich, Socci and the
defendant stopped at a donut shop and a material supply
yard. At the supply yard, the defendant spoke with
several of the yard’s employees for a few minutes. The
two also drove by several construction sites that Pasiak
Construction was serving. Upon their arrival in Green-
wich, Taranto came out to the defendant’s car and
spoke with Socci and the defendant. After learning of
the events that transpired, Taranto advised the defen-
dant and Socci to call the police. The defendant and
Socci then returned to the defendant’s home, where
Socci gathered her belongings and returned home.
Socci’s experience, from arrival at work to departure,
approximated her regular work schedule, and she was
paid in full by Pasiak Construction for that pay period.
Socci, her husband, and a friend later returned to the
defendant’s home, at which point the defendant called
the police.
After being charged with kidnapping in the second
degree and witness tampering, the defendant pleaded
guilty under the Alford doctrine2 to charges of interfer-
ing with an officer and threatening in the second degree.
Socci and her husband subsequently commenced a tort
action against the defendant, alleging false imprison-
ment, negligence, intentional, reckless and negligent
infliction of emotional distress, and loss of consortium.
The plaintiffs provided the defendant with an attorney
to defend him in the Socci action but notified him that
they were reserving their right to contest coverage.
The plaintiffs then commenced the present action,
seeking a declaration that they had no duty to defend
or indemnify the defendant in the Socci action. The
trial court concluded, by way of summary judgment,
that the allegations of the complaint were sufficiently
broad to obligate the plaintiffs to provide the defendant
with a defense under his homeowners and umbrella
insurance policies, but the court deemed it improper,
at that juncture, to determine the plaintiffs’ duty to
indemnify.
Socci and the defendant proceeded to trial in the tort
action, in which the jury awarded Socci $628,200 in
compensatory damages and $175,000 in punitive dam-
ages. The jury also awarded Socci’s husband $32,500
in compensatory damages. The plaintiffs then filed a
second motion for summary judgment in the declara-
tory judgment action regarding their duty to indemnify
the defendant. The plaintiffs argued, among other
things, that the defendant’s policies did not cover his
liability for the Socci action because coverage was
barred under the policy exclusion for business pursuits.
The plaintiffs also claimed that indemnification for the
punitive damages contravened public policy.
The trial court thereafter issued its memorandum of
decision. Relevant to this appeal, the court concluded
that the plaintiffs were entitled to summary judgment
under the homeowners insurance policy—which did
not cover injury for emotional distress unless caused by
a physical injury—but not under the umbrella insurance
policy—which covered ‘‘personal injury,’’ defined to
include false imprisonment. It also rejected the plain-
tiffs’ public policy argument.
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 the evidence and discovery that would be allowed
in the declaratory judgment trial. The plaintiffs claimed
that they were entitled to a trial de novo regarding the
issue of indemnification, with no limitation as to the
evidence that could be proffered, and the defendant
contended that the trial must be limited to evidence
from the underlying Socci action. The court disagreed
with the plaintiffs and denied their request to permit
unrestricted evidence.3
The declaratory judgment action proceeded to trial
with documentary evidence submitted to the court,
largely originating from the Socci action, with some
additional matters related to workers’ compensation.
The trial court issued a decision and rendered judgment
for the defendant, requiring the plaintiffs to indemnify
the defendant for his liability in the Socci action. The
decision rested on the same reasoning as the trial
court’s previous denial of the plaintiffs’ motion for sum-
mary judgment on the issue. The plaintiffs appealed
from the trial court’s judgment to the Appellate Court,
challenging, among other things, the trial court’s deter-
minations regarding the policy exclusions. See Nation-
wide Mutual Ins. Co. v. Pasiak, supra, 161 Conn. App.
88–89, 95. The Appellate Court reversed the judgment
of the trial court and concluded that the court incor-
rectly had determined that the business pursuits exclu-
sion of the umbrella insurance policy did not apply. See
id., 89, 101–102. The defendant thereafter appealed to
this court, which concluded that both the trial court
and the Appellate Court applied incorrect standards for
determining whether the business pursuits exclusion
barred coverage. Pasiak I, supra, 327 Conn. 252. We
also concluded that the plaintiffs were not limited to
the evidentiary record of the underlying tort action to
establish that the business pursuits exclusion barred
coverage. Id., 230, 270. Accordingly, we reversed the
judgment of the Appellate Court with direction to
remand the case to the trial court for a trial de novo
on the business pursuits exclusion issue. Id.On remand, the parties engaged in discovery, and the
trial court conducted a trial de novo with an expanded
evidentiary record.4 In its memorandum of decision, the
trial court explained that, in light of this court’s decision
in Pasiak I, its task was ‘‘to engage in a flexible fact-
specific inquiry to determine if the [plaintiffs] satisfied
[their] burden of [proving] that the false imprisonment
or Socci’s injury in this case was connected with, had
its origins in, grew out of, flowed from, or was incident
to [the defendant’s] business pursuits.’’ (Internal quota-
tion marks omitted.) See Pasiak I, supra, 327 Conn.
243–44. The trial court concluded that the plaintiffs
satisfied their burden by a preponderance of the evi-
dence. This appeal followed.
I
We begin with the defendant’s principal contention
that the trial court applied an incorrect standard when
it determined that the plaintiffs satisfied their burden
of proving, by a preponderance of the evidence, that
the business pursuits exclusion barred coverage. Rather
than applying the preponderance of the evidence stan-
dard, the defendant contends, the trial court should
have construed the business pursuits exclusion in favor
of the insured unless it had ‘‘a high degree of certainty
that the policy language clearly and unambiguously
excludes the claim.’’ The plaintiffs disagree and argue
that the defendant misconstrues this court’s holding in
Pasiak I and what this court directed the trial court to
do on remand. The plaintiffs contend that, in Pasiak I,
this court construed the language of the policy and
clarified the applicable standard for determining
whether Socci’s injuries arose out of the defendant’s
business pursuits. The plaintiffs further contend that
we then directed the trial court to make factual determi-
nations on remand as to whether Socci’s injuries met
this standard. In short, the plaintiffs argue that the
defendant conflates the tasks of construing the policy,
which this court did in Pasiak I, with making the factual
determinations necessary to ascertain whether the exclu-
sion unambiguously applied under the circumstances of
this case, which the trial court did on remand. We agree
with the plaintiffs.
‘‘[The] analysis of whether the [trial] court applied
the correct legal standard is a question of law subject
to plenary review.’’ (Internal quotation marks omitted.)
United Public Service Employees Union, Cops Local
062 v. Hamden, 209 Conn. App. 116, 123, 267 A.3d 239(2021); see also, e.g., Adams v. State, 259 Conn. 831, 837,
792 A.2d 809 (2002). When an incorrect legal standard
is applied, the appropriate remedy is to reverse the
judgment of the trial court and to remand the case for
further proceedings. See, e.g., In re Zakai F., 336 Conn.
272, 306–307, 255 A.3d 767 (2020); St. Joseph’s Living
Center, Inc. v. Windham, 290 Conn. 695, 765, 966 A.2d
188 (2009) (Schaller, J., concurring in part and dissent-
ing in part).
We begin by emphasizing the distinction between the
standard of proof in a civil trial and the interpretive pre-
sumptions we apply to insurance contracts. The stan-
dard of proof ordinarily refers to ‘‘the degree of certainty
by which the [fact finder] must be persuaded of a factual
conclusion to find in favor of the party bearing the
burden of persuasion.’’ Microsoft Corp. v. i4i Ltd. Part-
nership, 564 U.S. 91, 100 n.4, 131 S. Ct. 2238, 180 L. Ed.
2d 131 (2011). An interpretive presumption, by contrast,
is a rule we apply to help determine what a text—in
this case, an insurance contract—means. The interpre-
tation of an insurance contract is ‘‘a question of law,’’
not a matter of fact. (Internal quotation marks omitted.)
R.T. Vanderbilt Co. v. Hartford Accident & Indemnity
Co., 333 Conn. 343, 364, 216 A.3d 629 (2019). The inter-
pretive presumption at issue requires the court to con-
strue any ambiguity in the language of an insurance
policy against the insurance company, as the drafter of
the contract. See, e.g., Israel v. State Farm Mutual
Automobile Ins. Co., 259 Conn. 503, 508, 789 A.2d 974(2002). This rule is also known as contra proferentem.
See, e.g., id., 509; see also, e.g., R.T. Vanderbilt Co. v.
Hartford Accident & Indemnity Co., supra, 365. As we
will explain, an exclusion will generally be interpreted
against the insurance company unless the court has a
‘‘high degree of certainty that the policy language clearly
and unambiguously excludes the claim.’’ (Internal quo-
tation marks omitted.) Connecticut Ins. Guaranty
Assn. v. Drown, 314 Conn. 161, 188, 101 A.3d 200 (2014).
The defendant has conflated these two distinct
concepts.
With this distinction in mind, we turn to our decision
in Pasiak I. In parts II and III of our opinion, titled
‘‘Insurance Policy and Its Construction’’ and ‘‘Business
Pursuits Exclusion,’’ respectively, we construed the busi-
ness pursuits exclusion contained in the defendant’s
umbrella insurance policy. Pasiak I, supra, 327 Conn.
237–54. We began by noting that ‘‘no one questions that
the activities of [Pasiak Construction] meet the two
elements of a business pursuit. Nor does anyone con-
tend that false imprisonment constitutes a business pur-
suit. 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 [Pasiak Construction].’’ Id., 243.
We went on to state that the general meaning of
‘‘arising out of’’ is well established and explained that,
in Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172(1975), this court concluded 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
requirement that there be a causal relationship between
the accident or injury and the [subject].’’ (Internal quo-
tation marks omitted.) Pasiak I, supra, 327 Conn. 244.
We also noted that this definition of ‘‘arising out of’’ is
‘‘expansive,’’ and it underscores ‘‘that it is less
demanding than the standard for proximate cause.’’
(Internal quotation marks omitted.) Id. Finally, we also
recognized that this expansive definition applies both to
provisions that afford coverage and those that exclude
coverage, including the business pursuits exclusion.
Id., 245.
Of course, as we noted in Pasiak I, ‘‘[o]ur case law
construing the phrase ‘arising out of’ offers useful, but
limited, guidance’’ for determining whether the exclu-
sion applies in a particular case. Id., 246. We therefore
went on to discuss the kind of facts that would need to
be found for the exclusion to clearly and unambiguously
apply in the specific context of this case. See id., 246–52.
We observed that ‘‘the question of whether the defen-
dant’s false imprisonment of Socci was connected with,
had its origins in, grew out of, flowed from, or was
incident to his business pursuits would . . . be a fac-
tual matter.’’ Id., 245; see also, e.g., Kolomiets v. Syncor
International Corp., 252 Conn. 261, 265, 746 A.2d 743(2000) (in context of workers’ compensation claim,
whether injury arose out of employment considered as
matter of fact); Whitney Frocks, Inc. v. Jobrack, 135
Conn. 529, 534, 66 A.2d 607 (1949) (‘‘the question [of]
whether . . . the transaction arose out of the business
for which the corporation was organized was a question
of fact for the jury to decide’’).
In light of the foregoing, we concluded that it was
‘‘clear that neither the trial court nor the Appellate
Court applied the proper standard for ‘arising out of’ a
business pursuit.’’ Pasiak I, supra, 327 Conn. 252. We
explained that ‘‘further factual findings would be nec-
essary to determine whether this exception applies
under the correct standard.’’ (Emphasis added.) Id., 229–
30. With respect to the trial court’s analysis, we explained
that its ‘‘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.’’ Id., 252.
Although the trial court’s approach was too restrictive,
we explained that ‘‘the Appellate Court’s was too expan-
sive. 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 Appellate Court that the requisite stan-
dard could be met if, in addition to these facts, the false
imprisonment was a function of, or facilitated by, the
employer-employee relationship. . . . However, this is
a factual finding on which the trial court expressed no
view.’’ (Citation omitted.) Id., 254.
In footnote 12 of Pasiak I, we enumerated certain
evidence that may be probative of whether Socci’s
injury ‘‘arose out of’’ the defendant’s business pursuits.
We stated: ‘‘Socci’s testimony reflects numerous addi-
tional 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 peri-
odically stopped by the office to see whether Socci had
any questions. After the incident, the defendant anx-
iously and repeatedly expressed a concern to Socci that
Kotulsky’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, ‘[i]t’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 [the defendant] 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 construction 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 defen-
dant’s business affairs. Socci and Taranto knew each
other from having previously worked for the same
employer for several years, but [they] 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.’’5 Id., 253 n.12.
Accordingly, we concluded that ‘‘we [could not] 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 addi-
tional evidence in the Socci action relating to the matter
raised by the Appellate Court on which the trial court
made no findings, which that court may consider on
remand. . . . We express no view as to whether the
[trial] court must credit this evidence or the weight that
such evidence should be given if the court elects to
credit it.’’ (Citation omitted.) Id., 254. Therefore, we
remanded the case and directed that ‘‘the plaintiffs are
entitled to appropriate discovery and a trial de novo to
determine whether they have met their burden of prov-
ing that the business pursuits exclusion bars coverage.’’
Id., 270.
In sum, in Pasiak I, we construed the relevant policy
language in the defendant’s umbrella insurance policy,
explained the specific factual circumstances in which
the language would or would not unambiguously apply,
and directed the trial court on remand to conduct a
trial de novo to determine, as a factual matter, whether
the plaintiffs satisfied their burden of proving that this
policy language bars coverage.
Recognizing that this court had construed the rele-
vant policy language in Pasiak I, the trial court correctly
noted that its task on remand was ‘‘to engage in a
flexible fact-specific inquiry to determine if the [plain-
tiffs] satisfied [their] burden of [proving] that the false
imprisonment or Socci’s injury in this case was con-
nected with, had its origins in, grew out of, flowed from,
or was incident to [the defendant’s] business pursuits.’’
(Internal quotation marks omitted.) As a result, the trial
court rejected the defendant’s contention that a height-
ened standard should apply, explaining that it was ‘‘not
called [on] to construe the exclusion. The Supreme
Court has already done so. Rather, the court is applying
the high court’s construction to the facts of the case.
Accordingly, the court finds that [the plaintiffs] must
satisfy [their] burden of proof by a preponderance of
the evidence.’’
It is well settled that ‘‘the general rule [is] that when
a civil statute is silent as to the applicable standard
of proof, the preponderance of the evidence standard
governs factual determinations required by that stat-
ute.’’ (Internal quotation marks omitted.) Stuart v. Stu-
art, 297 Conn. 26, 38, 996 A.2d 259 (2010); see also, e.g.,
State v. Davis, 229 Conn. 285, 295–96, 641 A.2d 370(1994). General Statutes § 52-29 governs claims for
declaratory relief. See General Statutes § 52-29 (a); see
also Practice Book §§ 17-54 and 17-55. Neither § 52-29
nor any of the other authorities governing declaratory
judgment actions contain a heightened standard of
proof. Because a declaratory judgment action is an ordi-
nary civil action, without a heightened standard of proof
required by the statute, it is subject to the preponder-
ance of the evidence standard. See, e.g., State v. Davis,
supra, 295–96. Accordingly, we conclude that the trial
court properly applied the preponderance of the evi-
dence standard to determine the factual question of
whether the plaintiffs established that the business pur-
suits exclusion barred coverage.
The defendant nevertheless contends that a height-
ened standard is appropriate given our statement in
Pasiak I that, ‘‘[w]hen construing exclusion clauses,
the language should be construed in favor of the insured
unless [the court] has a high degree of certainty that
the policy language clearly and unambiguously excludes
the claim.’’ (Internal quotation marks omitted.) Pasiak
I, supra, 327 Conn. 239, quoting Connecticut Ins. Guar-
anty Assn. v. Drown, supra, 314 Conn. 188. This ‘‘high
degree of certainty’’ language, however, has its origins
in decisions from this court construing language con-
tained in insurance policies. See, e.g., Kelly v. Figueiredo,
223 Conn. 31, 37, 610 A.2d 1296 (1992) (‘‘The exclusion
clause [in the insurance policy] is not ambiguous. . . .
We can say with a high degree of certainty that the
exclusion clause was intended to exclude all assaults
and batteries from coverage.’’ (Citation omitted.));
Griswold v. Union Labor Life Ins. Co., 186 Conn. 507,
514, 442 A.2d 920 (1982) (‘‘We cannot say that the clause
in question is clear and unambiguous. Upon reading
the anti-duplication clause as it has been written by the
authors of the contract, we cannot say with any degree
of certainty whether it was intended to exclude not only
[money] or benefits actually received but also those
capable of being received under any coverage required
or provided by any statute or no-fault insurance pol-
icy.’’). The ‘‘high degree of certainty’’ standard applies
only when construing language in a policy; it does not
apply when a trial court is determining, as a factual
matter, whether a party has met its burden of establish-
ing that the policy exclusion unambiguously applies.
Indeed, the defendant has not cited a single case that
requires the application of a ‘‘high degree of certainty’’
standard when a court makes a factual determination
as to whether the facts of a case satisfy language in an
insurance policy. Because, as we explained, this court
has construed the relevant policy language in Pasiak
I,6 the trial court correctly determined that the applica-
tion of a heightened standard on remand was not appro-
priate. The defendant’s argument conflates the legal
standard for construction of a policy exclusion and the
burden of proof to be applied in a declaratory judgment
action to determine whether, as a factual matter, a
policy exclusion applies.
We emphasize the unusual procedural posture of this
case. There was no need for the trial court, on remand,
to apply the ‘‘high degree of certainty’’ standard or other
principles of insurance contract interpretation, such as
contra proferentem. This court had already interpreted
the business pursuits exclusion in Pasiak I and speci-
fied the factual situations in which that exclusion would
clearly and unambiguously apply. Normally, there will
not be a prior adjudication, as in this case, that has
determined whether an insurance contract is ambigu-
ous or how it should be interpreted in a particular
factual setting. We have held that ‘‘[c]ontext is often
central to the way in which policy language is applied;
the same language may be found [to be] both ambiguous
and unambiguous as applied to different facts. . . .
Language in an insurance contract, therefore, must be
construed in the circumstances of [a particular] case
. . . and cannot be found to be ambiguous [or unambig-
uous] in the abstract.’’ (Citation omitted; emphasis omit-
ted; internal quotation marks omitted.) Lexington Ins.
Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29,
41–42, 84 A.3d 1167 (2014). This case is unusual in the
sense that we have already interpreted the relevant
policy language in the specific factual context that
defines the dispute between the parties. This distinctive
procedural posture meant that the trial court, on remand,
was not required to reinterpret the contract and, there-
fore, had no need to apply the usual interpretive pre-
sumptions. Indeed, the history of this case illustrates
the point. Before this case reached this court in Pasiak
I, the trial court had construed the relevant policy lan-
guage in the first instance. On appeal, the Appellate
Court disagreed with the trial court’s interpretation.
See Nationwide Mutual Ins. Co. v. Pasiak, supra, 161
Conn. App. 100–101. Finally, when the case reached
this court, we explained that neither the trial court’s
nor the Appellate Court’s interpretation was correct.
See Pasiak I, supra, 327 Conn. 252. Although we dis-
agreed with its construction, it was nevertheless proper
for the trial court in Pasiak I to have engaged in inter-
preting the insurance policy in the specific factual con-
text of the case, applying all interpretive principles
applicable to insurance contracts, including, when
appropriate, contra proferentem.
II
The defendant also raises a number of claims relating
to whether the trial court correctly determined that the
plaintiffs had carried their burden of proof. Specifically,
the defendant claims that (1) the trial court erred when
it found in the plaintiffs’ favor after they failed to pro-
duce new, credible evidence that was not raised during
the first trial, (2) the trial court erred in failing to find the
defendant’s evidence, in the form of contemporaneous
witness statements made on the day of the incident, to
be the most credible and reliable form of evidence in the
record, (3) the trial court’s conclusion that Kotulsky’s
actions constituted an attack on Pasiak Construction
is unsupported by any evidence in the record, and (4)
the trial court improperly found in the plaintiffs’ favor
on public policy grounds.
On the basis of our examination of the record and
the briefs, and our consideration of the arguments of
the parties, we conclude that the defendant’s remaining
claims are without merit, and the judgment of the trial
court should be affirmed. Specifically, we conclude that
(1) the trial court did not err when it found in the
plaintiffs’ favor on the basis that they failed to produce
new, credible evidence that was not raised during the
first trial, (2) with respect to the second and third
claims, the record, viewed as a whole, contains evi-
dence that supports the factual findings of the trial
court, and (3) the public policy discussion in the trial
court’s memorandum of decision was not essential to
the trial court’s determination of the case and is, there-
fore, dictum.7 Because these claims are particular to
the facts of this case and do not raise significant legal
questions, extensive discussion of these claims would
serve no useful purpose. Cf. Office of Chief Disciplin-
ary Counsel v. Miller, 335 Conn. 474, 479–80, 239 A.3d
288 (2020) (because trial court properly resolved
remaining claims, ‘‘[i]t would serve no useful purpose
. . . to repeat the discussion contained [in the trial
court’s memorandum of decision]’’).
CONCLUSION
The trial court properly applied the preponderance
of the evidence standard at the trial de novo to deter-
mine the factual question of whether the plaintiffs estab-
lished that the business pursuits exclusion of the
umbrella insurance policy barred coverage. The defen-
dant’s argument to the contrary conflates the legal stan-
dard for construction of a policy exclusion and the
burden of proof to be applied in a declaratory judgment
action to determine whether, as a factual matter, a
policy exclusion applies.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The complaint in the declaratory judgment action also named Pasiak
Construction Services, LLC, the company owned and operated by Pasiak,
and Sara Socci and her husband, the plaintiffs in the underlying tort action,
as defendants. The claims in the present action arise under an insurance
policy issued to Pasiak as the sole policyholder, and Socci and her husband
have not participated in this appeal. Accordingly, in the interest of simplicity,
we refer to Pasiak throughout this opinion as the defendant.
2
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
The trial court did, however, permit the parties to obtain limited discovery
related to the workers’ compensation exclusion in the policy but concluded
that the remaining evidence would be limited to that from the Socci action.
4
Specifically, at the trial de novo, the parties entered the following exhibits
into evidence: exhibit A—the defendant’s umbrella insurance policy; exhibit
B—pleadings from the underlying action; exhibit C—transcripts of the 2010
trial in the underlying action; exhibit D—the transcript of the defendant’s
May 12, 2009 deposition; exhibit E—the transcript of the defendant’s Novem-
ber 19, 2009 deposition; exhibit F—the transcript of the defendant’s August
29, 2012 deposition; exhibit G—the transcript of the defendant’s January
15, 2019 deposition; exhibit H—the transcript of the June 16 and 17, 2008
prejudgment remedy hearing; exhibit I—the transcript of Socci’s October
19, 2009 deposition; exhibit J—the transcript of Socci’s December 3, 2009
deposition; exhibit K—the transcript of Taranto’s July 28, 2009 deposition;
exhibit L—the defendant’s May 9, 2006 voluntary statement to the Stamford
Police Department; exhibit M—Socci’s May 9, 2006 voluntary statement to
the Stamford Police Department; exhibit N—Socci’s May 31, 2006 voluntary
statement to the Stamford Police Department; and exhibit O—Socci’s April
23, 2008 affidavit in support of her application for a prejudgment remedy.
5
We also provided the trial court additional guidance regarding our con-
struction of the business pursuits exclusion, noting that, ‘‘[a]lthough broadly
construed, this court’s application of [‘arising out of’] indicates that the
requisite causal nexus would not be met merely by a sequential relationship
between the injury and the business pursuit. . . . Accordingly, this case
law makes clear that the mere fact that the false imprisonment occurred
after Socci arrived at her workplace would not, in and of itself, establish
the requisite nexus.’’ (Citations omitted.) Pasiak I, supra, 327 Conn. 246–47.
We noted, however, that ‘‘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. Altercations causing bodily injury and
even death have been deemed to arise from a business pursuit when the
dispute giving rise to the action was business related.’’ Id., 248. ‘‘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 exclusion.’’ Id., 250. Additionally,
we explained that, ‘‘even when no business purpose reasonably could moti-
vate or be furthered by the action, use of the employment relationship
or status to effectuate the harmful act may provide the requisite causal
connection.’’ Id.
6
We emphasize that this court did not conclude that the business pursuits
exclusion or the ‘‘arising out of’’ language was ambiguous. Rather, we
explained that the meaning of ‘‘arising out of’’ is ‘‘well established . . . .’’
(Internal quotation marks omitted.) Pasiak I, supra, 327 Conn. 244; see also
Hogle v. Hogle, supra, 167 Conn. 577.
7
Although we conclude that the trial court’s public policy discussion was
dictum, we take this opportunity to emphasize the purpose of the business
pursuits exclusion as it relates to different lines of insurance coverage. ‘‘As
a means of limiting the coverage afforded by the liability insurance policies
they sell, many insurance companies include in such policies a provision
known as the ‘business pursuits’ exclusion.’’ G. Locke, ‘‘Avoiding the ‘Busi-
ness Pursuits’ Exclusion—Insured’s Activity as Not Business Pursuit,’’ 15
Am. Jur. Proof of Facts 3d 515, 521, § 1 (1992). ‘‘The purpose of a ‘business
pursuits’ exclusion is to help the insurer keep premiums at a reasonable
level by eliminating a type of coverage that (1) normally requires specialized
underwriting and rating, (2) is not essential to most purchasers of the policy,
and (3) is provided by other insurance contracts a business owner is likely to
have. The need for insurance companies to keep business liability coverage
separate from personal liability coverage, and to maintain separate under-
writing and rating for each, arose in part from the vastly different premises
liability exposures that historically existed in the home and business settings.
Traditionally, a homeowner was required only to refrain from intentionally
injuring social guests and to warn such guests of any hidden dangers he or
she might reasonably expect them to encounter. By contrast, a business
owner owed his or her invitees a duty to maintain the premises in [a] safe
condition and to protect the invitees from injury by reason of any defects
that were known or, in the exercise of reasonable care, should have been
known. Even with the common-law distinctions between social guests and
business invitees now blurred or eliminated in many jurisdictions, insurers
remain interested in excluding from their general liability coverage the
increased risk attendant on the traffic that a place of business normally
generates, and a ‘business pursuits’ provision allows them to accomplish
this.’’ (Footnotes omitted.) Id., p. 522. Accordingly, although the language
of the particular insurance policy and the facts of the situation will always
govern the coverage question, it is important to remember that personal
liability insurance policies and commercial insurance policies contemplate
different risks and, therefore, afford different coverage at difference
premiums.