Nationwide Mutual Ins. Co. v. Pasiak

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NATIONWIDE MUTUAL INS. CO. v. PASIAK—CONCURRENCE AND
DISSENT
EVELEIGH, J., with whom ESPINOSA, J., joins, con-
curring and dissenting. Although I agree with the major-
ity that the plaintiffs, Nationwide Mutual Insurance
Company and Nationwide Mutual Fire Insurance Com-
pany, cannot prevail on their alternative grounds
regarding the exclusions for workers’ compensation
obligations and mental abuse set forth in the relevant
personal umbrella policy, and that public policy does
not prohibit this court from construing that umbrella
policy to provide indemnification for common-law puni-
tive damages arising from intentional wrongdoing, I
disagree with the majority that the trial court incorrectly
limited the scope of discovery and the declaratory judg-
ment trial and, therefore, also disagree with the majori-
ty’s conclusion that the present case should be
remanded for further proceedings. Instead, I would con-
clude that the trial court properly limited the scope of
discovery and properly limited the scope of the declara-
tory judgment trial, and that, on the basis of the record
in the present case, the trial court properly determined
that the business pursuits exclusion set forth in the
umbrella policy does not apply.
I
APPLICABILITY OF BUSINESS
PURSUITS EXCLUSION
On appeal to this court, the defendant Jeffrey S. Pasiak1
claims that the Appellate Court incorrectly concluded
that his claim for coverage falls within the scope of
the business pursuits exclusion contained within his
umbrella policy. Specifically, the defendant asserts that
the ‘‘[o]ccurrence’’ that forms the basis for Sara Socci’s
underlying tort claim did not arise from her employment
or the defendant’s business, but instead arose from the
defendant’s actions in not allowing Socci to leave his
home after the encounter with Richard Kotulsky had
ended. I agree.
I agree with the standard of review explained by the
majority, but emphasize that insurance policy exclu-
sions should be read narrowly. See, e.g., Heyman Asso-
ciates No. 1 v. Insurance Company of Pennsylvania,
231 Conn. 756, 770, 653 A.2d 122 (1995). As the majority
explains: ‘‘when construing exclusion clauses, 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. . . .
Connecticut Ins. Guaranty Assn. v. Drown, 314 Conn.
161, 188, 101 A.3d 200 (2014). While the insured bears
the burden of proving coverage, the insurer bears the
burden of proving that an exclusion to coverage applies.
See Capstone Building Corp. v. American Motorists
Ins. Co., 308 Conn. 760, 788 n.24, 67 A.3d 961 (2013).’’
(Internal quotation marks omitted.)
I first look to the terms of the defendant’s umbrella
policy. The provision at issue in this appeal provides
in relevant part that ‘‘[e]xcess liability and additional
coverages do not apply to . . . [a]n occurrence arising
out of the business pursuits or business property of an
insured.’’ The definitions provision provides as follows:
‘‘[An occurrence] means an accident including continu-
ous or repeated exposure to the same general condi-
tions. It must result in . . . personal injury caused by
an insured. . . . Personal injury means: (a) false arrest,
false imprisonment, wrongful conviction, wrongful
entry; (b) wrongful detention or malicious prosecution;
(c) libel, slander, defamation of character, or invasion
of rights of privacy.’’ The term ‘‘[b]usiness’’ is defined
in the umbrella policy as ‘‘a trade, profession, occupa-
tion, or employment including self-employment, per-
formed on a full-time, part-time or temporary basis.’’2
‘‘The term ‘arising out of’ indicates that a causal con-
nection between the alleged injury and the excluded
activity must exist . . . .’’ Cambridge Mutual Fire Ins.
Co. v. Sakon, 132 Conn. App. 370, 380, 31 A.3d 849
(2011), cert. denied, 304 Conn. 904, 38 A.3d 1202 (2012);
see also 7 S. Plitt et al., Couch on Insurance (3d Ed.
Rev. 2013) § 101:52, p. 101-96 (‘‘use of [the phrase] does
not require a direct proximate causal connection but
instead merely requires some causal relation or connec-
tion’’). This court has interpreted the term ‘‘arising out
of’’ to be synonymous with ‘‘was connected with, had
its origins in, grew out of, flowed from, or was incident
to.’’ (Internal quotation marks omitted.) Hogle v. Hogle,
167 Conn. 572, 577, 356 A.2d 172 (1975); see also Misiti,
LLC v. Travelers Property Casualty Co. of America,
308 Conn. 146, 157–58, 61 A.3d 485 (2013). In delineating
this standard of causation, this court has described it
as more ‘‘expansive’’ than proximate cause. (Internal
quotation marks omitted.) New London County Mutual
Ins. Co. v. Nantes, 303 Conn. 737, 759, 36 A.3d 224
(2012); see also Board of Education v. St. Paul Fire &
Marine Ins. Co., 261 Conn. 37, 48, 801 A.2d 752 (2002).
There are, of course, limits to the reach of the term
‘‘arising out of.’’ There must be some minimal causal
connection between the injury and described subject
matter. In Misiti, LLC v. Travelers Property Casualty
Co. of America, supra, 308 Conn. 168, this court con-
cluded that the causal connection had not been estab-
lished when, for purposes of the duty to defend, the
complaint in the underlying tort action established only
a sequence of events, but not a causal relationship.
There, the relevant insurance policy insured injuries
arising out of the use of certain property owned by the
insured and leased to a tavern keeper consisting of the
first floor of the tavern and the use of a nearby parking
lot. Id., 149–50. One evening, a tavern patron took a
postprandial detour off the path from the tavern to the
parking lot to a retaining wall that overlooked a river.
Id., 151. This court emphasized that the cause of the
injury in that case was the wooden fence above the
retaining wall on property not covered by the policy.
Id., 164. It was of no moment that the patron was, just
prior to her alleged injury, eating and drinking at the
tavern and followed a branch off the path back to the
parking lot in order to look at the river. Id., 162–63 n.11.
In Misiti, LLC, this court relied on Edelman v.
Pacific Employers Ins. Co., 53 Conn. App. 54, 59–62,
728 A.2d 531, cert. denied, 249 Conn. 918, 733 A.2d 229
(1999), wherein the Appellate Court concluded that a
drunken assault upon a police officer by an innkeeper
residing at the inn did not arise out of the use of the
inn. In affirming the trial court’s determination, the
Appellate Court reasoned that ‘‘whether the [insurer]
had a duty to defend under the policy depends on
whether the policy’s use of the language ‘arising out of
the . . . use of . . . the premises’ was intended to
include or exclude the factual allegations contained in
the complaint.’’3 Id., 59. The Appellate Court explained
that the focus was not the fact that the insured used
the premises to consume alcohol ‘‘but, rather, on the
mechanism that directly caused the plaintiff’s injuries,
i.e., [the insured’s] assault of the plaintiff while he
resisted arrest.’’ Id., 61. In other words, the insured’s
operation of the inn was not the cause of the victim’s
injuries, the insured’s assault, separate and apart from
the underlying reason for his presence on the premises,
caused the injuries.
In order to determine whether an injury arose out of
a business pursuit in the present case, I examine more
closely the meaning of the term ‘‘business pursuit.’’ This
court has explained that the term ‘‘business pursuits,’’
in the exclusionary clause of an insurance policy, ‘‘con-
templates a continuous or regular activity engaged in
by the insured for the purpose of earning a profit or a
livelihood. The determination of whether a particular
activity constitutes a business pursuit is to be made by
a flexible fact-specific inquiry.’’ Pacific Indemnity Ins.
Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 33,
688 A.2d 319 (1997). This standard is a useful rubric
for distinguishing business pursuits from hobbies. It
does not, however, answer the question of whether the
conduct from which the injury arose in the present case
was connected to a business pursuit.
There are, of course, obvious cases in which the
injury occurs as a result of risk created by acts or
omissions in the course of performing employment
duties. See, e.g., Worcester Ins. Co. v. Fells Acres Day
School, Inc., 408 Mass. 393, 412, 558 N.E.2d 958 (1990)
(claims against two employees of child care facility
alleging injuries to children as result of employees’ neg-
ligent failure to protect and prevent injury from sexual
molestation to children under their care fell within
‘‘business pursuits’’ exclusion of their respective home-
owners’ insurance policies). But, multifarious acts
undertaken throughout the course of one’s day could
cause an injury. Activities that comprise ‘‘business pur-
suits,’’ as that term is defined in the insurance contract
and our case law, are woven into the fabric of every
working person’s daily life. In order to determine
whether the activity comprised a business pursuit
requires careful examination.
The critical factor is whether the activity that created
the risk furthered a business purpose. See, e.g., Hanson
v. General Accident Fire & Life Ins. Corp., Ltd., 450
So. 2d 1260, 1261–62 (Fla. App. 1984) (removal from
insured’s business premises of antenna used for two-
way communication with insured’s wife ‘‘unrelated’’ to
insured’s business); Nationwide Mutual Fire Ins. Co.
v. Johnson, 121 N.C. App. 477, 482, 466 S.E.2d 313 (1996)
(business pursuits exclusion not applicable where dece-
dent employee used insured employer’s new truck and
cherry picker, purchased to perform contract work,
where decedent was not being paid or trained); Allstate
Ins. Co. v. Robinson, 103 N.C. App. 794, 797, 407 S.E.2d
294 (1991) (fact question whether insured struck
matches to help himself see in furtherance of his
employment duties thereby triggering exclusion or
rather to amuse himself); U. S. F. & G. Ins. Co. v.
Brannan, 22 Wash. App. 341, 342, 350, 589 P.2d 817 (1979)
(exclusion applied where insured injured one business
associate and killed another in altercation precipitated
by dispute over business matter); see also Cambridge
Mutual Fire Ins. Co. v. Sakon, supra, 132 Conn. App.
378–80. The fact that the occurrence took place in a
workplace is relevant, but not dispositive of whether
the business pursuits exclusion is triggered. See, e.g.,
Scheer v. State Farm Fire & Casualty Co., 708 So. 2d
312, 313 (Fla. App.) (‘‘[n]or does it follow from the fact
that this conduct occurred in the work place that it was
within the business pursuits exclusion’’), review denied,
719 So. 2d 893 (Fla. 1998); Miller v. McClure, 326 N.J.
Super. 558, 563, 570–71, 742 A.2d 564 (App. Div. 1998)
(concluding that, where proof of employment relation-
ship was necessary, claim of sexual harassment in
workplace by insured supervisor precluded by business
pursuits exclusion, but also concluding that additional
claims ‘‘not dependent on the employment relationship’’
fell outside exclusion), aff’d, 162 N.J. 575, 745 A.2d
1162 (1999); see also L. Frazier, ‘‘The Business Pursuits
Exclusion in Personal Liability Insurance Policies: What
the Courts Have Done with It,’’ 1970 Ins. L.J. 519, 534
(1970).
On the basis of the foregoing, I would conclude that
the business pursuits exclusion in the umbrella policy
is ambiguous. Therefore, in interpreting the business
pursuits exclusion, I am mindful that ‘‘insurance policy
exclusions should be read narrowly . . . that insur-
ance policies should be construed in favor of the insured
. . . and that policy language must be interpreted so
as to reflect the understanding of an ordinary policy-
holder.’’ (Citations omitted.) New London County
Mutual Ins. Co. v. Nantes, supra, 303 Conn. 755;4 see
also Farm Bureau Life Ins. Co. v. Holmes Murphy &
Assocs., Inc., 831 N.W.2d 129, 134 n.7 (Iowa 2013) (‘‘a
phrase like ‘arising out of’ may be given a narrower
scope in an exclusion when a court finds the exclusion
ambiguous and therefore determines the phrase means
‘proximately caused by’’’); South Carolina Farm
Bureau Mutual Ins. Co. v. S.E.C.U.R.E. Underwriters
Risk Retention Group, 347 S.C. 333, 339–40, 554 S.E.2d
870 (App. 2001) (concluding that narrower construction
of arising out of applied to business pursuits exclusion
under rule of construction specific to exclusions),
reversed on other grounds, 353 S.C. 249, 578 S.E.2d
8 (2003).
Turning to the facts of the present case, and
employing our standard rules of construction as noted
previously in this opinion, I would conclude, as did the
trial court, that the occurrence did not arise out of the
business pursuits of the defendant. On the morning
of May 9, 2006, Kotulsky’s attempted robbery of the
defendant’s home while Socci was present in the home
set off a series of actions that are wholly separate from
the business pursuits of the defendant. The defendant’s
actions, which a jury found injured Socci, were those
that occurred after the defendant arrived home from
his morning routine. The record, as found by the trial
court, demonstrates that these actions were not in fur-
therance of a business interest of the defendant; rather,
his motivation was purely personal—to protect
Kotulsky.
The allegations of the complaint in the underlying tort
action demonstrate that the ‘‘occurrence’’ that forms the
basis of Socci’s claims is the act of false imprisonment.
Socci testified that Kotulsky barged in to the defen-
dant’s home while the defendant was not home, but
Socci was there working. The defendant later walked
in and was confronted by Kotulsky. Socci testified that
she ‘‘heard Kotulsky say, ‘I loved you. How could you
do that? I loved you. I loved her.’ . . . I realized that
this was about a girl. They were fighting over a girl.’’
The sole focus of Socci’s claim was the events that
occurred after Kotulsky’s attempted robbery had ended.
Socci sought damages for the distress that she suffered
due to the defendant’s actions, not Kotulsky’s attempted
robbery. In finding in favor of Socci on her claim, the
jury held the defendant liable for his own actions after
returning home. Those actions formed the basis for
the damage award. Any activities which preceded the
defendant returning home, including interactions
between Socci and Kotulsky, were not part of the plain-
tiffs’ claim.
It is evident from the record that the defendant’s
goal after Kotulsky’s attempted robbery was to shield
Kotulsky from the consequences of his actions by pre-
venting Socci from calling the police. It was the defen-
dant’s perfervid desire to protect his friend. Socci
testified that the defendant explained that they
‘‘couldn’t call the police [because] they had been friends
for years and years since high school [and] that Pasiak
was . . . godfather to [Kotulsky’s] children . . . .’’
While still at the defendant’s house, the defendant
pulled pictures of Kotulsky off of the walls to show
Socci how close the two were to ‘‘make [her] under-
stand’’ why she could not call the police. When asked
at trial whether the defendant was protecting her, Socci
stated that Pasiak was ‘‘protecting his friend.’’ For his
part, the defendant said in a statement to the police
that the decision whether to inform the police ‘‘was a
hard decision because of [his] relationship with [Kotul-
sky].’’ Additionally, very soon after the police were
finally notified, the defendant, rather than follow the
police’s instructions to help facilitate Kotulsky’s arrest,
informed Kotulsky that the police were notified and
‘‘it’s over.’’
The plaintiffs claim, and the majority appears to
agree, that it was clearly erroneous to conclude that
the defendant’s actions were not, at least in part, moti-
vated by business interests. The record evidence sup-
porting the theory that concern for the reputation of
the business animated the defendant’s conduct is equiv-
ocal at best. To be sure, Socci testified that the defen-
dant made some statements expressing concern that
the events of that day could somehow result in harm
to his business. Nevertheless, the trial court’s conclu-
sion was not clearly erroneous given that substantial,
detailed evidence supported the finding that the defen-
dant desired to protect his friend. There was no evi-
dence to connect the defendant’s statements about his
business to his actions preventing Socci from leaving
his home. While Socci testified that she understood the
defendant to be protecting his friend, she did not testify
that he was protecting his enterprise. Additionally,
given the lengths the defendant had gone to protect his
friend, it would not be unreasonable to infer that the
defendant’s expressions of concern for his business
were merely attempts to persuade Socci to not call the
police by suggesting there would be effects beyond
merely criminal consequences for Kotulsky—conse-
quences Socci almost certainly would welcome.
Accordingly, I reject the plaintiffs’ claim that the trial
court’s finding regarding the defendant’s motivation for
preventing Socci from leaving was clearly erroneous.
The Appellate Court and the majority also rely upon
the flawed premise that Socci’s acquiescence with the
defendant’s demands was, to some extent, a function
of the employee-employer relationship. This is unsup-
ported by the record. Socci testified that she did no
additional work that day and testified that she would
never be coming back to work. All the while, the defen-
dant repeatedly stated that Socci could not leave
because he felt she would call the police. Socci testified
that she repeatedly asked the defendant if she could
leave and assured him ‘‘I just want to be alive, I am not
going to tell anyone,’’ to which he replied, ‘‘you’re not
going anywhere until I know you’re not going to run out
of here freaking out telling everybody.’’ She emphasized
that the defendant was adamant about it. By not assur-
ing Socci of her personal safety were she to depart or
call the police, he preserved Socci’s apprehension that
Kotulsky could still cause physical harm to her or her
family. Indeed, Socci testified to her apprehension of
consequences for disobeying the defendant, stating that
she feared if she left without permission ‘‘it was like
if I had a bomb strapped around my chest and [the
defendant] had the button and [if] I ran, he could still
press the button. He was using [Kotulsky]. He could
completely contact [Kotulsky] at any time: She’s run.
And it was an instant kill for me and my family. I couldn’t
do that. That would be insane.’’ In Socci’s mind, the
prudent course of action was to simply acquiesce to
the defendant. This was a function of a fear based rela-
tionship, not an employment relationship.5
The Appellate Court held, and the plaintiffs assert
on appeal to this court, that ‘‘the sine qua non of the
defendant’s tortious conduct was . . . Socci’s pres-
ence at his business office fulfilling her responsibilities
as his employee.’’ Nationwide Mutual Ins. Co. v. Pas-
iak, 161 Conn. App. 86, 99, 127 A.3d 346 (2015). Specifi-
cally, the plaintiffs assert that Socci was only present
at the defendant’s home because she worked for his
company and that, but for her employment by the defen-
dant’s company, she would never have been exposed
to Kotulsky or to the defendant’s actions thereafter. I
disagree. As discussed previously herein, the mere fact
alone that an injury occurred in the workplace is insuffi-
cient to trigger the business pursuits exclusion. The
fact that Socci was working at some point before the
defendant committed the tortious actions at issue has
nothing to do with the defendant’s conduct. Indeed,
Socci would have suffered this injury whether she was
an employee of the business or not. This was not an
internal ‘‘workplace altercation’’ between the defendant
and Socci. Indeed, ‘‘if the injury arises out of an indepen-
dent act not performed for employment purposes, the
business pursuits exclusion may not apply under those
circumstances.’’ 9A S. Plitt et al., Couch on Insurance
(3d Ed. Rev. 2015) § 128:17, pp. 128-54 through 128-55.
In this circumstance, the actions of the defendant must
be considered as independent acts because, as the trial
court found, the defendant’s actions limiting Socci’s
ability to leave were motivated by his desire to protect
Kotulsky, and not motivated by any business or employ-
ment purpose.
The cause-in-fact, or ‘‘but for’’ cause, standard of
causation applied by the Appellate Court stretches the
meaning of ‘‘arising out of’’ too far. It is, of course, true
that had Socci not been an employee of the defendant,
she would not have been present when Kotulsky
attempted to rob the defendant’s home. Such a broad
standard of causation was, however, rejected in Misiti,
LLC. In that case, but for the tavern patron’s use of the
tavern that evening, she would not have been injured
when she detoured off the path to the parking lot, but
the injury did not flow from, or have its origins in, her
patronage of the tavern. See Misiti, LLC v. Travelers
Property Casualty Co. of America, supra, 308 Conn.
159–60; see also Edelman v. Pacific Employers Ins.
Co., supra, 53 Conn. App. 61 (injury did not arise out
of use of leased property where insured innkeeper, who
resided on premises, assaulted police officer). Likewise,
in the present case, Socci would not have been injured
but for being in the employ of the defendant, but the
injury did not flow from, or have its origin in, her
employment. Rather, her injury flowed from the defen-
dant’s decision to protect Kotulsky by preventing her,
as a victim of an attempted armed robbery, from calling
the police.
In sum, I disagree with the Appellate Court’s conclu-
sion that the plaintiffs carried their burden in proving
the business pursuits exclusion in the present case.
Rather, I would agree with the majority that the Appel-
late Court used the wrong standard. I disagree, how-
ever, with the majority that the trial court used the
wrong standard. In my view, the trial court used the
correct standard as established by our case law. There-
fore, I would reverse the judgment of the Appellate
Court and remand the case to that court with direction
to affirm the judgment of the trial court.
II
RIGHT TO A FULL HEARING
The plaintiffs claim, as an alternative ground for
affirming the judgment of the Appellate Court, that the
trial court incorrectly refused to conduct a full eviden-
tiary hearing on all issues relevant to the coverage
claims. Specifically, the plaintiffs claim that the trial
court narrowly defined the issues it would consider,
prohibited the plaintiffs from calling witnesses at trial,
and gave preclusive effect to the findings in the underly-
ing Socci action and, thereby, violated the plaintiffs’
due process rights. The plaintiffs claim that, because
they were denied a basic right to be heard, they are
entitled to de novo review. They argue that because
the plaintiffs were ‘‘not a party to the Socci action, nor
in privity with any party to that action, [they] could not
obtain a full and fair hearing on the coverage claims in
the [declaratory judgment] action without the freedom
to fully develop the record and obtain the court’s inde-
pendent review.’’ Essentially, the majority agrees with
this position and remands the case for a full trial on
the business pursuits exclusion. I disagree and would
conclude that the trial court properly defined the scope
of the trial in this declaratory judgment action. Essen-
tially, the claim is no different than any other ruling by
a trial judge concerning the admissibility of evidence.
I therefore evaluate the claim under an abuse of discre-
tion standard. State v. Dehaney, 261 Conn. 336, 354–55,
803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S.
Ct. 1318, 154 L. Ed. 2d 1070 (2003).
The following additional facts and procedural history
are relevant to my resolution of this issue. On July 9,
2012, the plaintiffs filed a memorandum of law regard-
ing the scope of the declaratory judgment trial. The
plaintiffs claimed that they were ‘‘entitled to . . . de
novo fact finding’’ in the present case. The defendant
claimed that the trial was to be based ‘‘solely and com-
pletely on the facts presented’’ in the underlying civil
trial.
On August 9, 2012, the trial court denied the plaintiffs’
request for a trial de novo. The trial court framed the
matter as one of collateral estoppel and concluded that
the plaintiffs ‘‘cannot now ask the court to relitigate
what has already been fully and fairly litigated.’’ The
trial court noted that the plaintiffs did not convey to
the court precisely what evidence it sought to present
to the court that had not already been presented in the
Socci action. The trial court criticized the ‘‘compla-
cency’’ of the plaintiffs for, in the underlying action, not
‘‘actively [pursuing] in greater detail the issues affecting
the exclusions in the [umbrella] policy.’’ The trial court
noted that issues regarding intentional acts, wilful viola-
tion of the law, and workers’ compensation were prop-
erly raised and necessarily determined in the underlying
action ‘‘as not applicable to negate liability.’’ The trial
court concluded that it would deny the plaintiffs’
request ‘‘for a de novo hearing to permit unrestricted
testimony and evidence of the issues [already] litigated
in the underlying trial . . . .’’
The trial was held on August 30, 2012. On the day of
the trial, the plaintiffs filed a ‘‘trial brief’’ with the court.
In their brief, the plaintiffs requested findings of fact
and conclusions of law on seven listed issues. The issues
listed can be separated into two categories. First, the
plaintiffs sought an allocation of liability found on the
general verdict by the jury in the underlying action.6
Second, the plaintiffs sought findings on the applicabil-
ity of certain enumerated exclusions. The trial court
indicated to plaintiffs’ counsel that it would allow the
presentation of evidence and testimony and consider
any objection in turn. The plaintiffs submitted a number
of exhibits, including the complaint, transcript, jury
charge, and verdict form of the Socci action, the defen-
dant’s pleas of nolo contendere to certain criminal
charges, limited deposition testimony from the Socci
action, certain expert testimony, and response to a
request for production of documents regarding
Socci’s employment.7
After the submission of exhibits, the plaintiffs’ coun-
sel attempted to call Socci as a witness to testify. Upon
inquiry by the trial court, counsel for the plaintiffs
explained that he intended for Socci to testify to the
issues enumerated in the brief so that the court could
make a finding as to whether the defendant engaged
in intentional conduct to cause emotional distress or
false imprisonment and a finding on negligence. Coun-
sel for the defendant objected and sought clarification
as to what additional evidence the plaintiffs sought from
Socci that was not already elicited in the underlying
trial. Counsel for the plaintiffs responded that he
wanted the court to assess the credibility of Socci’s
testimony. The court rejected this proffer, reasoning
that the jury made that determination in the underlying
action. The court emphasized that the general verdict
in the underlying action meant that there was a finding
in favor of Socci on every issue. The court clarified that
the plaintiffs had been restricted to presenting evidence
on issues that were in addition to those raised in the
underlying action, i.e., issues pertaining to exclusions.
Moving to exclusion issues, the counsel for the defen-
dant demanded to know precisely what additional testi-
mony the plaintiffs sought from Socci. Other than
asking Socci questions that would elicit legal conclu-
sions,8 counsel for the plaintiffs indicated that he would
not elicit any additional testimony not already pre-
sented in the underlying action with respect to the busi-
ness pursuits exclusion. Socci did not testify.9 Counsel
for the plaintiffs did not proffer any other testimony as
to any of the other exclusions.10
After the trial, the parties submitted posttrial memo-
randa. In their brief, the plaintiffs ‘‘incorporated by ref-
erence’’ arguments made in their motion for summary
judgment. In detail, the plaintiffs raised coverage issues
pertaining only to the applicability of exclusions.11 The
plaintiffs did not make any argument as to the allocation
of liability in their posttrial brief.
In its memorandum of decision, the court emphasized
that it gave the plaintiffs the opportunity to present
evidence on coverage issues. Although the plaintiffs did
not address the issue in their posttrial brief, the trial
court discussed the allocation of liability and deter-
mined that the ‘‘jury verdict consist[ed] of a finding of
personal injury for negligent as well as intentional acts,
all of which may be subject to indemnification.’’ In other
words, the court concluded that the defendant’s actions
that caused damages to Socci were an ‘‘occurrence’’
within the meaning of the umbrella policy. As previously
discussed herein, the court further determined that
none of the exclusions asserted by the plaintiffs applied
to the defendant’s conduct.
Against this procedural backdrop, I turn to whether
the plaintiffs were entitled to a trial de novo on the
coverage issue in this declaratory judgment action. The
trial court correctly, albeit for the wrong reasons, con-
cluded that the plaintiffs were not entitled to retry the
underlying case in the present declaratory judgment
trial. The trial court correctly defined the scope of the
presentation of evidence in the trial. Contrary to the
plaintiffs’ claim, they had a fair opportunity to present
their case with respect to the disputed coverage issues.
While I agree with the majority on the scope of the new
hearing and the standard for such cases, I disagree,
respectfully, that a new hearing is necessary in the
present case. The plaintiffs, as determined by the trial
court, were allowed to present evidence on the exclu-
sion issues, however, they never formally indicated to
the trial court what evidence they intended to present.
In my view, the plaintiffs are now being given a ‘‘second
bite at the apple’’ and their position constitutes an
ambuscade of the trial court. Unfortunately, through
its ruling, the majority now condones the plaintiffs’
actions.
The issue of whether the plaintiffs have a duty to
indemnify is a contractual one. See, e.g., New London
County Mutual Ins. Co. v. Nantes, supra, 303 Conn.
748–49. According to the umbrella policy, the plaintiffs
agreed to ‘‘pay for damages an insured is legally obli-
gated to pay due to an occurrence’’ subject to certain
exclusions. There is no doubt that the defendant in the
present case owes damages that he is legally obligated
to pay to Socci. The issue for the trial court was whether
and to what extent the damages were due to an occur-
rence, and, if so, whether and to what extent coverage
was precluded by a relevant exclusion.
With respect to the question of whether the damages
the defendant caused Socci were due to an occurrence
as defined by the terms of the umbrella policy, the
plaintiffs were, in essence, seeking an allocation of lia-
bility among the counts in the complaint in the underly-
ing tort action to determine to what extent the
defendant’s liability is covered by the umbrella policy.
As the trial court noted in its memorandum of decision,
the general verdict in the underlying action greatly adds
to the difficulty in allocating liability. Indeed other
courts have observed the difficulty of allocating liability
in cases where the liability is determined by general
verdict. See, e.g., Automax Hyundai South, L.L.C. v.
Zurich American Ins. Co., 720 F.3d 798, 809 (10th Cir.
2013) (noting an ‘‘epistemological barrier to determin-
ing the jury’s grounds for judgment’’); Board of County
Supervisors v. Scottish & York Ins. Services, Inc., 763
F.2d 176, 179 (4th Cir. 1985) (describing the ‘‘winnowing
out the specific grounds upon which the jury based its
general verdict’’ as an ‘‘impossibility’’). Nevertheless,
courts are skeptical about retrying the underlying case.
See, e.g., TranSched Systems Ltd. v. Federal Ins. Co.,
67 F. Supp. 3d 523, 534 (D.R.I. 2014) (describing relitigat-
ing the underlying tort action as ‘‘uneconomical’’ and
ordering mediation). Indeed, the plaintiffs have not
cited a single case that supports the contention that in
circumstances such as the present case the insurer is
entitled to retry the underlying case.
One treatise has specifically rejected retrial on the
issue of liability. 1 A. Windt, Insurance Claims & Dis-
putes: Representation of Insurance Companies and
Insureds, § 6:26, pp. 6-280 through 6-282 (6th Ed. 2013).
‘‘When the dispute is over which causes of action or
allegations were found to be meritorious, only one ques-
tion should be addressed: the factual and legal grounds
on which the prior judgment was entered. The parties,
therefore, should not be allowed to retry the liability
issue.’’ (Footnote omitted.) Id.; see also FountainCourt
Homeowners’ Assn. v. FountainCourt Development,
LLC, 360 Or. 341, 357, 380 P.3d 916 (2016) (‘‘[i]n other
words, an insurer cannot, in a subsequent proceeding,
retry its insured’s liability’’). Rather, the parties ‘‘should
look to the pleadings, the jury charge, any written opin-
ions, and the trial transcript in the underlying litigation.
They should not, for example, be allowed to call as
witnesses the people that testified at the earlier trial
. . . .’’ (Footnote omitted.) 1 A. Windt, supra, p. 6-282;
accord Carolina Casualty Ins. Co. v. Nanodetex Corp.,
733 F.3d 1018, 1026 (10th Cir. 2013). Indeed, these prin-
ciples are not inconsistent with Connecticut law. ‘‘[T]he
duty to indemnify depends upon the facts established
at trial and the theory under which judgment is actually
entered in the case.’’ (Internal quotation marks omit-
ted.) DaCruz v. State Farm Fire & Casualty Co., 268
Conn. 675, 688, 846 A.2d 849 (2004); see also id. (‘‘the
duty to indemnify arises only if the evidence adduced
at trial establishes that the conduct actually was cov-
ered by the policy’’ [emphasis in original]).
Counsel for the plaintiffs’ own representation to the
trial court as to the nature and purpose of Socci’s antici-
pated testimony in the trial in the present case supports
my conclusion that permitting relitigation on the issue
of liability is unwarranted. Counsel for the plaintiffs
sought to present Socci’s testimony initially on the issue
of liability. When pressed, the counsel for the plaintiffs
could not articulate precisely what testimony he sought
to present that had not already been presented in the
underlying trial. Rather, the plaintiffs’ counsel stated
that it sought ‘‘the court’s determination as to credibility
and the weight to be given the testimony . . . .’’ To
present Socci or other witnesses to testify a second
time to the very issues at the heart of the underlying
tort action would simply be an exercise in presenting
cumulative evidence not needed for resolution of the
issue of whether, or to what extent, damages were
caused by an occurrence.
Contrary to the reasoning of the trial court, the ratio-
nale for limiting the scope of trial is not grounded in
the doctrine of collateral estoppel. ‘‘The common-law
doctrine of collateral estoppel, or issue preclusion,
embodies a judicial policy in favor of judicial economy,
the stability of former judgments and finality. . . . Col-
lateral estoppel . . . prohibits the relitigation of an
issue when that issue was actually litigated and neces-
sarily determined in a prior action between the same
parties [or those in privity with them] upon a different
claim. . . . For an issue to be subject to collateral
estoppel, it must have been fully and fairly litigated in
the first action. It also must have been actually decided
and the decision must have been necessary to the judg-
ment.’’ (Internal quotation marks omitted.) Wilcox v.
Webster Ins., Inc., 294 Conn. 206, 223, 982 A.2d 1053
(2009).
Collateral estoppel does not apply to the plaintiffs in
this case for two reasons. First, the plaintiffs in the
present case were not in privity with the defendant in
the underlying tort action. Second, because the general
verdict in that case renders the basis of the jury’s deter-
mination unclear, it cannot be said that the relevant
factual issues were necessarily determined and, there-
fore, such issues cannot have preclusive effect in the
present case.
The principal inquiry is whether the plaintiffs were
in privity with the defendant in the underlying action.
‘‘Privity is a difficult concept to define precisely. . . .
There is no prevailing definition of privity to be followed
automatically in every case. It is not a matter of form
or rigid labels; rather it is a matter of substance. In
determining whether privity exists, we employ an analy-
sis that focuses on the functional relationships of the
parties. Privity is not established by the mere fact that
persons may be interested in the same question or in
proving or disproving the same set of facts. Rather, it
is, in essence, a shorthand statement for the principle
that collateral estoppel should be applied only when
there exists such an identification in interest of one
person with another as to represent the same legal
rights so as to justify preclusion.’’ (Citation omitted.)
Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813–14,
695 A.2d 1010 (1997).
Defending an insured under a reservation of rights
has been recognized as sufficient to dispel privity for
purposes of collateral estoppel. See, e.g., State Farm
Fire & Casualty Co. v. Mabry, 255 Va. 286, 290, 497
S.E.2d 844 (1998). When an insurer defends an insured
under a reservation of rights, it creates an inherent
conflict of interest preventing the insurer from asserting
its policy defenses. See Allstate Ins. Co. v. Blount, 491
F.3d 903, 910 (8th Cir. 2007) (applying Missouri law);
see also 2 Restatement (Second) Judgments § 58 (2)
(1982) (‘‘[a] ‘conflict of interest’ . . . exists when the
injured person’s claim against the indemnitee is such
that it could be sustained on different grounds, one of
which is within the indemnitor’s obligation to indemnify
and another which is not’’). Thus, while it may well
be true that both insured and insurer have an interest
obtaining a verdict for the defendant in the tort action,
it cannot be said that the parties represent the same
legal rights.12
In addition, collateral estoppel does not apply against
the plaintiffs in the present case because the issues
were not ‘‘actually and necessarily determined’’ in the
underlying action. (Internal quotation marks omitted.)
Dowling v. Finley Associates, Inc., 248 Conn. 364, 376,
727 A.2d 1245 (1999). For collateral estoppel to apply,
‘‘the fact sought to be foreclosed by [the] defendant
must necessarily have been determined in his favor in
the prior trial; it is not enough that the fact may have
been determined in the former trial.’’ (Internal quotation
marks omitted.) Id., 377. ‘‘Because a verdict to which
the general verdict rule13 applies is necessarily one that
can rest on different grounds, there is no way to know
definitively that the verdict satisfied the criteria
required to invoke the collateral estoppel doctrine.’’
(Footnote added.) Id., 376–77.
I disagree with the trial court that, in the underlying
action, the insurers’ failure to intervene or the defen-
dant’s counsel’s failure to seek special interrogatories
alters the analysis with respect to collateral estoppel.
First, although this court has not decided the issue until
today, there is broad consensus in our Superior Court
and other jurisdictions that an insurer cannot intervene
as of right for any purpose because their interest was
contingent until a verdict had been rendered for a cov-
ered claim. See Seaco Ins. Co. v. Devine Bros., Inc.,
Superior Court, judicial district of Fairfield, Docket No.
CV-00-0374721-S (July 30, 2003) (35 Conn. L. Rptr. 235,
240 n.3) (citing numerous decisions from our Superior
Court and other jurisdictions denying insurer interven-
tion as of right because insurer’s interest is not direct,
but rather contingent on outcome of case). I agree with
these cases. There is a split of authority in our Superior
Courts as to whether permissive intervention would
be proper even if solely for the purpose of submitting
interrogatories.14
Second, the fact that the defendant’s counsel did not
seek special interrogatories cannot simply be imputed
to the plaintiffs, even though they furnished the defense.
‘‘[W]e have long held that even when an insurer retains
an attorney in order to defend a suit against an insured,
the attorney’s only allegiance is to the client, the
insured.’’ (Emphasis in original.) Metropolitan Life Ins.
Co. v. Aetna Casualty & Surety Co., 249 Conn. 36,
61, 730 A.2d 51 (1999). ‘‘[E]ven when an attorney is
compensated or expects to be compensated by a liabil-
ity insurer, [his or] her duty of loyalty and representa-
tion nonetheless remains exclusively with the insured.’’
(Emphasis added.) Higgins v. Karp, 239 Conn. 802,
810, 687 A.2d 539 (1997). Even if the decision not to
request special interrogatories could somehow be
imputed to the insurer in these circumstances, such a
decision does not convert the general verdict into a
sword applied against the insurer. See Dowling v. Fin-
ley Associates, Inc., supra, 248 Conn. 376 n.8. Thus, the
plaintiffs’ lack of participation in the underlying action
was not inappropriate such that the findings in that case
should be given preclusive effect against the plaintiffs
in the present case.
Turning to the scope of the trial in the present case,
the trial court admitted the transcripts from the underly-
ing action, the pleadings, the verdict form, and the jury
charge. This was all the trial court needed to determine
whether there was coverage in the present case to con-
sider the issue of allocating liability.15 With respect to
the issue of the applicability of relevant exclusions, the
presentation of additional testimony or evidence may
be necessary for an insurer to carry its burden. In order
to prove that a coverage exclusion applies, an insurer
may seek to develop facts that were not relevant to the
underlying tort action. The record in the underlying tort
action likely will not adequately speak to exclusion
issues. In the present case, the plaintiffs did indeed
submit additional evidence regarding the exclusions.
Again, the trial court provided counsel for the plaintiffs’
an opportunity to explain what additional testimony
he intended to present in support of their claims that
coverage was excluded. Counsel for the plaintiffs did
not seek to present any other oral testimony.
All in all, the trial court gave the plaintiffs a fair
hearing in this declaratory judgment action. It properly
weighed the burden on judicial resources, and the par-
ties, in declining to permit the plaintiffs to present evi-
dence already submitted in the underlying action. The
trial court permitted the plaintiffs to present new or
additional evidence related to issues not relevant in the
underlying tort action. Accordingly, I would conclude
that the trial correct correctly established the scope of
the trial in the present case.
III
PLAINTIFFS’ OPPORTUNITY TO
DEVELOP THEIR CASE
The plaintiffs claim, as an additional ground for
affirming the judgment of the Appellate Court, that they
were denied the opportunity to develop their case, in
particular their coverage defenses, through both discov-
ery and trial evidence. Because this ground appears to
be very similar to the previous issue, although it may
encompass rulings on discovery, I again review it under
an abuse of discretion standard. State v. Dehaney,
supra, 261 Conn. 354–55.
Specifically, the plaintiffs claim that if permitted to
conduct appropriate discovery, they might have estab-
lished that the defendant’s motivations in detaining and
threatening Socci were business related. Similarly, they
might have learned whether Socci’s hours were ulti-
mately to be increased beyond the twenty-six hour
threshold, where workers’ compensation insurance is
required, even for a domestic employee. Instead, the
plaintiffs assert they were left with a record that did
not fully address all of the coverage issues and included
a general verdict. As a result, the plaintiffs claim that the
trial court’s ‘‘limiting decisions were inherently unfair
to [them], and fundamentally against the interests of
justice.’’
While the plaintiffs assert that they were denied ‘‘vir-
tually every form of discovery it sought,’’ they never
identify a discovery request or ruling with specificity.
They claim that they were not allowed to depose ‘‘key
witnesses’’ such as the defendant and Socci. The plain-
tiffs deposed the defendant on the eve of trial on issues
regarding his business, workers’ compensation, and
Socci’s employment. Counsel for Socci sought a protec-
tive order and the plaintiffs failed to explain to the court
why it needed further information when it had her trial
testimony. Thereafter, the court issued a protective
order. Nothing prevented the plaintiffs from calling the
defendant as a trial witness. There were also lengthy
discussions about Socci testifying. Her counsel sought
an order of protection due to the fragility of her mental
state with respect to these events, but she agreed to a
stipulation of facts. The plaintiffs refused to do so.
Because the plaintiffs could not articulate why it needed
live testimony, the court was unwilling to allow the
testimony and issued a protective order.
In view of the plaintiffs’ failure to identify a specific
ruling of the trial court regarding discovery, other than
the testimony of both the defendant and Socci, my
review of the record leads me to conclude that the trial
court properly exercised its discretion in this matter.
There was no ruling that constituted an abuse of discre-
tion. I, therefore, would reject the plaintiffs’ claims in
this regard.
To summarize, I would conclude that the trial court
correctly determined that the business pursuits, abuse,
and workers’ compensation exclusions did not apply
in the present case. Additionally, I believe that the trial
court correctly determined that the plaintiffs were not
entitled to a de novo fact finding hearing on all issues
in the present declaratory judgment action. Finally, I
would conclude that the trial court did not abuse its
discretion in denying certain discovery requests.
Therefore, I would reverse the judgment of the Appel-
late Court and remand the matter to that court with
direction to affirm the judgment of the trial court.
I respectfully concur and dissent.
1
I note that the complaint in the present declaratory judgment case names
three additional defendants: Pasiak Construction Services, LLC, Sara Socci,
and Kraig Socci. I further note that Kraig Socci’s sole claim in the underlying
tort action sounds in loss of consortium and is, therefore, derivative of the
claims presented by Sara Socci. For the sake of simplicity, I refer to Pasiak
as the defendant and to Sara Socci by name. See footnote 1 of the major-
ity opinion.
2
In view of the allegations made in the underlying tort action, and the
general verdict rendered by the jury in that case, it is conceivable that the
jury may have found that the act of false imprisonment either occurred in
the defendant’s house, in his car, in a subsequent meeting with a mutual
friend, or in a combination of all three locations.
3
As with Misiti, LLC, in Edelman the Appellate Court analyzed the ‘‘aris-
ing out of’’ language in the context of the broader duty to defend and still
focused on the ‘‘mechanism’’ of the injury rather than the sequence of events
leading to the exercise of said mechanism. Edelman v. Pacific Employers
Ins. Co., supra, 53 Conn. App. 61. Thus, as Edelman demands an analytical
focus on the ‘‘mechanism’’ of injury in the broad duty to defend setting, an
analysis of the narrower duty to indemnify—and the exclusions applicable
thereto—should, at a minimum, require an equally narrow analytical focus
as to the cause of injury.
4
The majority explains that ‘‘arising out of’’ has been given an expansive
definition even when used in coverage exclusions and cites to New London
County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 753, in support of its
position. In Nantes, this court explicitly acknowledged that the principles
of insurance law demonstrate that ‘‘insurance policy exclusions should be
read narrowly . . . that insurance policies should be construed in favor of
the insured . . . and that policy language must be interpreted so as to
reflect the understanding of an ordinary policyholder.’’ (Citations omitted.)
Id., 755. In Nantes, this court explained that these principles only apply
when the exclusion provision is ambiguous, and that it only applied the
expansive definition of ‘‘arising out of the . . . use’’ in that case because
it determined that the exclusion was not ambiguous. Id., 755–56.
5
The majority claims that Socci actually viewed her compliance with the
defendant’s requests that day to be performance of employment duties.
Socci did, in fact, testify that she ‘‘worked all day, so [the defendant] wouldn’t
make that one phone call to tell Kotulsky that I called the police.’’ This
‘‘work’’ was not in service of her employer; rather, it was a purely personal
endeavor—a deliberate effort to make sure the defendant did not give her
up to Kotulsky. She not only complied with the defendant, she endeavored
to put on a calm demeanor because ‘‘he told me I wasn’t going to leave
unless he knew I wasn’t going to run out of there freaking out and telling
everyone, so I knew that I had to show him that I wasn’t going to tell anyone,
that I was fine like they said I was, that it wasn’t a big deal like they said
it was.’’ She explained that this was no easy task: ‘‘I didn’t want to be calm
after being threatened [by Kotulsky]. After having my family threatened
. . . . You can’t be calm after that.’’ These efforts were undoubtedly men-
tally taxing ‘‘work,’’ but cannot fairly be described as work for the defendant
or his business.
6
Specifically, the plaintiffs sought findings of fact and conclusions of law
as to the following: (1) ‘‘[w]hether Pasiak either engaged in intentional
conduct to falsely imprison [Socci] or inflicted emotional distress upon
[Socci], or both, and is such conduct covered or excluded from coverage
under the [u]mbrella [p]olicy as argued in Nationwide’s [motion for summary
judgment]’’; and (2) ‘‘[whether] Pasiak commit[ed] any negligence in addition
to intentional [torts] and if so what was that negligent conduct, and is such
negligence covered or excluded from coverage under the [u]mbrella [p]olicy
as argued in Nationwide’s [motion for summary judgment . . . .’’ (Foot-
note omitted.)
7
On the Monday before trial, an off the record conference was held. At
that conference, the trial court granted a one day continuance of trial for
a deposition and ordered certain discovery. Despite the fact that the court
indicated in its memorandum of decision that matters pertaining to workers’
compensation were ‘‘necessarily determined’’ in the underlying trial, the
deposition and production pertained to Socci’s employment and apparently
were relevant to the issue of the workers’ compensation exclusion.
8
Counsel for the plaintiffs suggested he would ask Socci if the defendant
was acting in furtherance of business pursuits when he prohibited her from
leaving his house and if the defendant was acting ‘‘in a way that was abusive’’
to her.
9
At trial, Socci’s counsel expressed concern about presenting testimony
from Socci because testifying would exacerbate her emotional distress.
10
The trial court excluded certain documentary evidence, but the plaintiffs
have not appealed from that decision.
11
The plaintiffs indicated that the applicability of exclusions were the
only issues that appeared unresolved after the denial of their motion for
summary judgment and the decision regarding the scope of trial.
12
This is especially so in actions alleging both negligent and intentional
conduct. Where a personal liability policy contains an intentional acts exclu-
sion, an insurer has an interest in proving such conduct, whereas an insured
would rather avoid establishing such facts so that he does not lose his right
to indemnification.
13
‘‘Under the general verdict rule, if a jury renders a general verdict for
one party, and no party requests interrogatories, an appellate court will
presume that the jury found every issue in favor of the prevailing party.
. . . Thus, in a case in which the general verdict rule operates, if any ground
for the verdict is proper, the verdict must stand; only if every ground is
improper does the verdict fall. . . . The rule rests on the policy of the
conservation of judicial resources, at both the appellate and trial levels.
. . .
‘‘On the appellate level, the rule relieves an appellate court from the
necessity of adjudicating claims of error that may not arise from the actual
source of the jury verdict that is under appellate review. In a typical general
verdict rule case, the record is silent regarding whether the jury verdict
resulted from the issue that the appellant seeks to have adjudicated. Declin-
ing in such a case to afford appellate scrutiny of the appellant’s claims is
consistent with the general principle of appellate jurisprudence that it is
the appellant’s responsibility to provide a record upon which reversible error
may be predicated.’’ (Citation omitted; internal quotation marks omitted.)
Dowling v. Finley Associates, Inc., supra, 248 Conn. 371. Generally speaking,
in order to avoid the effects of the general verdict rule, a party ‘‘may elicit
the specific grounds for the verdict by submitting interrogatories to the
jury.’’ (Internal quotation marks omitted.) Id., 372.
14
See Wright v. Judge, Superior Court, judicial district of New London,
Docket No. CV-08-5006839-S (October 5, 2010) (50 Conn. L. Rptr. 738, 738–39)
(denying motion to intervene for limited purpose of submitting special inter-
rogatories, noting that issues of liability in underlying case did not require
determination of coverage issues raised by insurer in order to be resolved,
that allowing intervention for this purpose would directly insert into action
issues of insurance which are generally not admissible evidence in tort case,
and that, therefore, allowing insurer to interpose interrogatories ‘‘would
potentially create complications both for the plaintiff . . . and counsel for
[the] insured’’); Hunter v. Peters, Superior Court, judicial district of New
Haven, Docket No. 423946 (December 13, 2001) (31 Conn. L. Rptr. 141, 142)
(recognizing that permissive intervention for limited purpose of submitting
special interrogatories to determine whether insurance policy covers defen-
dant’s alleged conduct could be proper in some cases, but was not in that
case because mutually exclusive potential bases of jury verdict alleviated
need for interrogatories); Murphy v. Kapura, Superior Court, judicial district
of Tolland, Docket No. CV-95-56977-S (May 19, 1995) (14 Conn. L. Rptr. 312,
313) (denying insurer’s request to intervene in action against insured alleging
negligent assault and intentional assault for purpose of submitting interroga-
tory to determine whether intentional act exclusion of policy precluded
coverage under rationale that intervention could prejudice parties and
insurer had alternative means of establishing whether intentional assault
occurred through separate declaratory judgment action).
15
The plaintiffs did not address this issue in their posttrial brief, apparently
believing the issue was decided at summary judgment or in the trial court’s
decision regarding the scope of trial. Nevertheless, the trial court discussed
the issue in its memorandum of decision. The plaintiffs do not claim on
appeal that the trial court improperly determined whether, or to what extent,
the damages were caused by an occurrence under the umbrella policy. I
express no opinion about the trial court’s analysis of that issue. My discussion
herein is limited to simply whether the trial court correctly concluded that
the plaintiffs were not entitled to a trial de novo on all issues.