DocketNumber: SC 15737
Citation Numbers: 246 Conn. 313
Judges: Berdon, Peters
Filed Date: 8/11/1998
Status: Precedential
Modified Date: 9/8/2022
Opinion
This appeal arises out of a declaratory judgment action filed by the plaintiff, Imperial Casualty and Indemnity Company, with respect to a controversy between it and the defendants, the state of Connecticut and various individual employees of the state police department, regarding insurance coverage to be provided by the plaintiff under two policies that it issued to the defendants. The plaintiff sought a declar ation as to whether it was obligated, under the terms of each of the two policies, to provide a defense for the defendants in ten underlying federal court actions that had been instituted against the defendants by various third parties.
After the pleadings were closed in the declaratory judgment action, the plaintiff moved for summary judgment on all eleven counts of its complaint, claiming that it was not obligated to provide the defendants with a defense in the underlying federal actions because the complaints alleged intentional acts that were not within the coverage of either the 1984-86 or the 1986-89 policy. The trial court agreed with the plaintiff with respect to the 1986-89 policy, but determined that the complaints did state claims that were within the coverage provided by the 1984-86 policy. Consequently, the trial court rendered summary judgment on counts three through eleven of the plaintiffs complaint, which pertained to conduct that occurred during the 1986-89 policy period.
I
As a preliminary matter, we note that the plaintiff objects to the defendants’ claim on appeal that the 1986-89 policy provides coverage for intentional acts because, the plaintiff argues, the defendants conceded in the trial court proceedings that the policy does not
On appeal, the theories advanced by the defendants as a basis for their argument that the plaintiff is obligated to provide them with a defense under the 1986-89 policy are, in some respects, different from the theories relied on at trial. The defendants argue on appeal that the duty to defend exists because the allegations in
The plaintiff is correct in its assertion that, ordinarily, “we . . . review a case on the theory upon which it was tried and decided in the trial court”; Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); and do not address on appeal issues that have not been raised in the trial court. Grody v. Tulin, 170 Conn. 443, 447-48, 365 A.2d 1076 (1976). This practice is in accord with Practice Book § 60-5,
An example of a case in which we chose to overlook a party’s failure altogether to raise an important claim is Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 628 A.2d 946 (1993). In Genovese, the plaintiff failed to advance his claim under General Statutes § 31-51bb both in the trial court and initially before this court. We, on our own initiative and in the interests of achieving justice, raised the applicability of that section and ordered the parties to submit supplemental briefs on the issue, ultimately deciding the case on that basis. Id., 479-80 and n.6; see also G. & H. Investment Co. v. Raymond, 113 Conn. 778, 779, 155 A. 497 (1931)
In this case, it is appropriate, in the interest of doing justice between the parties in accordance with the provisions of their written agreement, that we consider the defendants’ theory that the contract provided coverage for intentional torts, despite the fact that the defendants did not make this argument below. First, the interpretation of insurance contracts is a matter of law to be decided by the court and is, therefore, subject to de novo review on appeal.
II
We now turn to the merits of the defendants’ claim that the plaintiff is obligated to provide them with a defense in the underlying proceedings based on the terms of the 1986-89 policy. Whether the plaintiff had a duty to defend under the policy depends on whether, in light of the policy language, the complaints in the underlying federal actions alleged conduct for which coverage was provided. “[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint.” Flint v. Universal Machine Co., supra, 238 Conn. 646. The “duty
In this case, the parties agree that the allegations contained in the complaints in the underlying federal actions allege intentional conduct on the part of the defendants. The parties disagree, however, as to whether the 1986-89 policy provides coverage for intentional conduct. Therefore, we must examine the policy to determine whether coverage was provided for injuries resulting from intentional acts.
“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy.” Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). “The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy.” (Internal quotation marks omitted.) O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 842, 669 A.2d 1221 (1996). “It is axiomatic that a contract of insurance must be viewed
The language in § I (1) of the 1986-89 policy that is the subject of the dispute provides as follows: “[The plaintiff] will pay those sums that [the defendants] become legally obligated to pay as civil damages because of wrongful acts arising out of Law Enforcement activities to which this insurance applies. . . . The insurance only applies to damages caused by wrongful acts arising out of law enforcement activities caused by an ‘occurrence.’ . . .” Section V (4) of the policy defines “occurrence” as “an accident, including continuous or repeated exposure to conditions which result in ‘bodily injury,’ ‘personal injury’ or ‘property damage.’ ” If this were the only relevant language contained in the policy, it would be clear that the policy does not provide coverage for intentional conduct. The policy, however, contains other pertinent language in
The defendants claim that this latter language defining “personal injury” expressly indicates that coverage is provided for damages resulting from intentional acts such as the acts alleged in the underlying federal lawsuits. Specifically, the defendants rely on the fact that § V (4) of the policy provides coverage for “continuous or repeated exposure to conditions which result in . . . ‘personal injury’ ” such as the “deprivation of any rights, privileges or immunities secured by the Constitution and Laws of the United States of America or the State for which the insured may be held liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress” as enumerated in § V (5) of the policy — the types of injuries at issue in this case. The plaintiff argues, however, that by focusing on the sorts of injuries that may be covered, the defendants overlook the fact that the policy defines an occurrence as an accident, and the conduct involved in this case was not accidental, but intentional. The defendants respond that in light of the definition of personal injury set forth in the policy, which appears to include intentional as well as accidental conduct, the word “accident” cannot be interpreted literally but, instead, must
Although by defining an occurrence as “an accident” the policy attempts to limit coverage to conduct that is unintentional, this definition, when read in conjunction with the definition of personal injury, gives rise to an internal inconsistency. Specifically, the definition of personal injury indicates that certain injuries may be covered that could have resulted only from intentional conduct, such as false arrest, false imprisonment, malicious prosecution and actions brought under 42 U.S.C. § 1983, as well as many injuries that generally involve intentional conduct, such as assault and batteiy, libel, slander, defamation, discrimination and the violation of other rights, privileges and immunities secured by the constitution and laws of the United States or the state. The definition of occurrence as “an accident,” however, appears to encompass only unintentional conduct. The result is that the policy purports to provide coverage for accidental, intentional torts — torts that, of course, do not exist. In light of this inconsistency, it is impossible to determine solely on the basis of the policy’s express language whether the conduct at issue in this case is covered.
In determining what coverage is provided, however, the policy language is not be read in a vacuum. Ceci v. National Indemnity Co., 225 Conn. 165, 168, 622 A.2d 545 (1993). Rather, the interpretation of the policy language is to be informed by what the parties likely intended in entering the contract. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284,
If we were to interpret the policy as the plaintiff suggests, the only damages relating to personal injuries that would be covered under the policy would be negligent forms of assault and battery, libel, slander, defamation, discrimination, mental anguish, wrongful entry or eviction, violation of property, and rights, privileges or immunities violations, and the erroneous service of civil papers. On the other hand, damages arising from false arrest, false imprisonment, malicious prosecution, and from intentional forms of assault and battery, libel, slander, defamation, discrimination, mental anguish, wrongful entry or eviction, violation of property, and rights, privileges or immunities violations, including § 1983 actions, would all be excluded from the scope of the policy’s coverage. Indeed, coverage for damages resulting from several intentional causes of action— such as false arrest, false imprisonment, malicious prosecution, and § 1983 claims — would be excluded even though the policy purports to provide coverage for personal injuries resulting from those causes of action. The latter result hardly seems rational, and we have
A further reason to interpret the inconsistent policy language as encompassing intentional conduct is the general rule that ambiguous provisions in a contract are to be interpreted against the drafter. This rule applies to contracts of insurance; Hansen v. Ohio Casually Ins. Co., supra, 239 Conn. 542-43; as long as there is ambiguity inherent in the policy that “emanate [s] from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 295. Because we have already determined, in this case, that it is the language of the policy itself that gives rise to an ambiguity, application of the rule is appropriate and serves to further support our conclusion that the policy must be interpreted to include coverage for intentional acts that result in personal injuries during the policy period.
We conclude, therefore, that the 1986-89 policy in this case does not exclude coverage for intentional conduct as alleged in the underlying federal proceedings and that, as a result, the plaintiff is not relieved of the duty to provide the defendants with a defense in those proceedings on that basis.
Ill
The plaintiff also claims that it does not have a duty to provide the defendants with a defense because, it argues, the underlying federal complaints allege the wilful violation of a penal statute, and the policy contains an exclusion with respect to such conduct. The policy provides in § I (2) as follows: “Exclusions. This insurance does not apply to . . . (1) [a]ny claim arising out of the willful violation of a penal statute or ordinance. . . .” The defendants argue that, because the complaints allege other causes of action in addition to the wilful violation of 18 U.S.C. § 2511 (1), a federal antiwiretapping statute that has both a civil and a penal component, the plaintiff is not relieved of its duty to defend. We agree with the defendants.
The complaints in the underlying federal actions allege statutory and common-law civil violations and constitutional violations as a result of conduct that allegedly also violated the penal component of the federal antiwiretapping statute. None of the defendants has been charged with violating the penal component of that statute, however, or with violating any other penal statute. Furthermore, it is entirely conceivable that, in the underlying proceedings, the defendants will be found liable in tort or on the basis of constitutional violations despite the fact that they may never be
Because the complaints in the underlying federal actions allege facts that bring the claims within the coverage of the 1986-89 policy, we conclude that the plaintiff is obligated to provide the defendants with a
The judgment of the trial court is reversed in part and the case is remanded to that court for further proceedings.
In this opinion NORCOTT, KATZ and MCDONALD, Js., concurred.
The ten underlying federal court actions were consolidated by the United States District Court on June 7, 1990. See In re State Police Litigation, 888 F. Sup. 1235 (D. Conn. 1995). The individual complaints in those actions allege that employees of the Connecticut state police department, while in the employ of that department, deprived the plaintiffs in the underlying actions of rights secured to them by the constitutions and laws of the United
The plaintiff had appealed an aspect of the trial court judgment that is unrelated to the issues in this appeal. The issue appealed by the plaintiff was whether the trial court correctly had determined that the plaintiff was responsible for the entire cost of the defendants’ defense in the action brought by the Connecticut Criminal Defense Lawyers Association that was the subject of count one of the plaintiffs complaint. In that action, the plaintiff alleged that the defendants had engaged in illegal wiretapping over a twelve year period, however, the 1984-86 policy provided the defendants with insurance coverage for conduct occurring during only two of those twelve years. The plaintiff sought apportionment of the costs of the defendants’ defense between it and the defendants, claiming that it would be unfair to require it to pay for the entire defense under the circumstances. The trial court determined that the plaintiff was obligated to assume the entire cost of the defendants’ defense without the benefit of apportionment between it and the defendants. From that aspect of the trial court’s decision, the plaintiff appealed. Thereafter, the plaintiff withdrew its appeal.
Counts three through ten of the complaint pertained to damages resulting from ads committed by the defendants during the 1986-89 policy period. Count eleven alleged that, in the event that the court should find that the plaintiff was obligated to provide the defendants with a defense in the underlying actions under the terms of the 1986-89 policy, a deductible would
In its memorandum of decision on the plaintiffs motion for summary judgment, the trial court articulated the parties’ arguments as follows: “[The plaintiff] argues that it has no duty to defend the defendants in the underlying lawsuits because the allegations in the underlying complaints do not come within the coverage of either insurance policy. [The] [defendants claim that ‘the potential for liability, and not the language of the complaint, is what gives rise to a duty to defend’ and conceding that intentional behavior is not covered, [the] defendants maintain that since the federal court may make a finding of negligent behavior, which is covered by the policy, a duty to defend exists.” (Emphasis added.)
Practice Book § 60-5 provides: “Review by the Court; Plain Error; Preservation of Claims
“The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
“In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.
"It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”
“Although there have been cases in which the interpretation of an insurance contract has rested on factual questions; see, e.g., Libero v. Lumbermens Mutual Casualty Co., 141 Conn. 574, 580, 108 A.2d 533 (1954); this is not such a case.” Flint v. Universal Machine Co., 238 Conn. 637, 643, 679 A.2d 929 (1996). In this case, as in Flint, the “only questions raised ... are whether the allegations set forth in [the] complaint triggered [the insurer’s] obligation to defend . . . [the] insured in the underlying action, and whether the [policy] exclusion is ambiguous. These issues present questions of law, which we review de novo.” Id.
The plaintiff argues that in this case application of the rule that ambiguous provisions of a contract are interprel ed against the drafter would be inappropriate because the defendants’ were sophisticated purchasers and the rule was intended to benefit unsophisticated consumers. We disagree.
The plaintiff has cited only one unreported Connecticut case that suggests that there may be situations where application of the rule that ambiguity in a policy is to be interpreted against the drafter might be inappropriate. In that case, Linemaster Switch Corp. v. Aetna Life & Casualty Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV9103964325 (July 31, 1995) (15 Conn. L. Reptr. 223), the trial court was asked to interpret an insurance policy to determine if a duty to defend existed with respect to actions brought against the insured by the United States Environmental Prolection Agency and the Connedicut department of environmental protection under a new federal statute that created strict retroactive liability for past hazardous waste disposal activities. The court noted that, because the risk for which coverage had been claimed was not
The plaintiff also contends that it does not have a duty to defend because the underlying federal complaints contain claims for injunctive relief and class action relief, and the policy contains an exclusion for any action, claim or “suit” seeking injunctive relief or class action relief. Again, the fact that a demand for class action or injunctive relief is made in an action does not automatically relieve an insurer of its duty to defend. In determining the duty to defend, “courts do not examine only the pleaded word but the potential liability created by the suit. ... To restrict the defense obligation of the insurer to the precise language of the pleading . . . would create an anomaly for the insured . . . [because] the complainant in the third parly action drafts his complaint in the broadest terms .... In light of the likely overstatement of the complaint and of the plasticity of modem pleading, we should hardly designate the third party as the arbiter of the policy’s coverage.” (Citations omitted.) Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 276, 419 P.2d 168 (1966). In addition to claims seeking injunctive and class action relief, the actions in this case also contain demands for monetary damages, and the plaintiffs in the underlying federal actions may prevail on their claims for monetary or other relief. Therefore, the broad duty to defend is not overcome by the fact that the complaints include claims for class action or injunctive relief.