DocketNumber: Nos. CV00-0504557S, CV00-0504903, CV00-0504453
Citation Numbers: 2002 Conn. Super. Ct. 3458, 31 Conn. L. Rptr. 603
Judges: BERGER, JUDGE.
Filed Date: 3/11/2002
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiffs, Bleau, Kizska and Russell Wentland, as administrator of Marci Wentland' s estate (Wentland), brought actions against Seneco and Antonio Senese. The court, Shortall, J., approved stipulated judgments negotiated by the parties in the three cases on June 12, 2000.1 Seneco subsequently went bankrupt and the plaintiffs separately sued American Equity, Seneco's insurer. In their amended complaints, the plaintiffs seek a declaratory judgment that American Equity breached its contractual duty to defend and its contractual duty to indemnify. The actions were consolidated on September 10, 2001.
The plaintiffs have alleged various negligent acts by Seneco. They claim that the bar was negligently designed and constructed in that the only dance floor, used by both adult and minor patrons, was located in the juice bar area. They next claim negligent operation and supervision alleging that on the night of the accident: Seneco did not continuously station employees at the entrances between the juice bar area, the billiards room, which was also a common area, and other areas of the bar; Seneco did not prevent adult patrons from carrying alcoholic beverages from other areas of the bar into the juice bar area and the billiards room; and Seneco failed to provide different cups for alcoholic and non-alcoholic beverages. The plaintiffs further allege that Seneco failed to warn adult patrons not to provide alcoholic beverages to minor CT Page 3460 patrons and failed to warn minor patrons of the consequences of accepting alcoholic beverages from adult patrons.
American Equity now moves for summary judgment on the ground that it has no duty to defend its insured because the alleged negligent acts fall under the liquor liability exclusion provision of the insurance policy. Wentland argues on the other hand, that the failure to warn allegations are separate from those related to causing or contributing to the intoxication of any person.2 Specifically, Wentland argued on behalf of all three plaintiffs, that Seneco's failure to warn the minor plaintiffs of the consequences of accepting alcoholic beverages from adult patrons does not relate to the causing or contributing to the intoxication of any person.
Section 1(A)(2)(c)(1) of the commercial general liability coverage form of the insurance policy provided by American Equity to Seneco sets out the liquor liability exclusion. The exclusion has been amended by two endorsements, the latest of which was in effect at the time of the accident. As amended, the exclusion denies coverage for "`[b]odily injury' or `property damage' for which any insured may be held liable by reason of [c]ausing or contributing to the intoxication of any person." (Defendant's Motion for Summary Judgment, Exhibit A, Amendment of Liquor Liability Exclusion, November, 1995, hereinafter, Exhibit A.) In addition, there is no coverage for "`[b]odily injury' or [p]roperty damage' for which any insured may be held liable by reason of [t]he furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol." (Exhibit A.) The exclusion applies only to businesses that "(1) [m]anufacture, sell or distribute beverages; (2) [s]erve or furnish alcoholic beverages for a charge whether or not such activity (a) [r]equires a license; (b) [ills for the purpose of financial gain or livelihood; (3) [s]erve or furnish alcoholic beverages without a charge, if a license is required for such activity; or (4) [a]re an owner or lessor of premises used for such purposes." (Exhibit A.)
It is well settled that "an insurer's duty to defend, [is] much broader in scope and application than its duty to indemnify, [and] . . . [t]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage." (Citations omitted; internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co.,
"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." (Internal quotation marks omitted.)Travelers Ins. Co. v. Namerow,
The plaintiffs do not claim that the liquor liability exclusion clause is ambiguous.3 They instead claim that the alleged negligent behavior does not fall under the exclusion. Whether recovery for negligence is precluded by an unambiguous liquor liability exclusion clause depends on whether the allegations of negligence are independent from the sale and service of alcohol. See Decrecenzo v. Jakucenis, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 052689 (March 24, 2000, Grogins, J.). In Decrecenzo, an employee of the bar became intoxicated and subsequently assaulted the plaintiff. The court denied summary judgment on the premises liability count, holding that the insurer had a duty to defend its insured, despite a liquor liability exclusion clause in the policy. The court reasoned that "if one [were] to strike all allegations of alcohol in the premises liability count, the base assertion that the defendant failed to protect the plaintiff would exist independently and not be subject to the exclusionary language. That is, the allegations that [the employee] assaulted the plaintiff while intoxicated, and that [the owner] contributed somehow to [the employee's] state, are ultimately separate from allegations that [the owner] was negligent in failing to provide for the safety of its patrons." Id. Based on the same principle, however, the court concluded that the policy, which precluded recovery for bodily injury "arising as a result of the insured . ., causing or contributing to the intoxication of any person," specifically excluded the plaintiffs claim of a violation of the Dram Shop Act and her negligent supervision claim. Id.
Other jurisdictions have applied the same principle in determining the scope and applicability of a liquor liability exclusion. For example, in Ohio, the courts have focused on whether the alleged negligent acts are "sufficiently distinct, separate and independent from the sale or service of alcohol." Kovesdy v. Utica Fire Ins. Co.,
The United States District Court of Nevada adopted the same rule inCapitol Indemnity Corp. v. Blazer,
In this case, the allegations of negligence are inseparable from the fact that Seneco either caused or contributed to the intoxication of Rodriguez. For example, if the alleged negligent design of the bar did not cause or contribute to the intoxication of Rodriguez, it is irrelevant that the only dance floor was located in the juice bar. The same is true of the plaintiffs' allegations of negligent supervision and operation. If these alleged negligent acts did not cause or contribute to the intoxication of Rodriguez, then the fact that Seneco failed to station employees between the juice bar area, the billiards room and other areas of the bar is simply not relevant. Since all of these allegations are dependent and inseparable from the fact that Seneco caused or contributed to the intoxication of Rodriguez, coverage is barred by the liquor liability exclusion. Moreover, creating an exception for the plaintiffs' failure to warn claims would render liquor liability exclusion clauses throughout the state meaningless. Any plaintiff who failed to circumvent a liquor liability exclusion through ordinary negligence claims would simply be able to rely on alleging a failure to warn. Such an exception would thus require bar owners to inform their patrons of the patently obvious — that if they drink and drive, they could die. This court is unwilling to impose such a broad and previously unrecognized duty upon bar owners. Therefore, because the "allegations of alcohol" are integral to and inseparable from the allegations negligence, the liquor liability exclusion applies as a matter of law.
Berger, J.