DocketNumber: No. CV 02-0190241 S
Citation Numbers: 2003 Conn. Super. Ct. 3716, 34 Conn. L. Rptr. 275
Judges: MINTZ, JUDGE.
Filed Date: 3/25/2003
Status: Non-Precedential
Modified Date: 4/17/2021
The underlying case is an action for personal injuries arising out of an automobile accident that occurred on October 19, 1999. The amended complaint alleges that the deceased defendant, John Kelly, was driving his automobile while intoxicated and turned left into the oncoming plaintiff, who was traveling on his motorcycle.1 Kelly got out of his vehicle, observed the plaintiff lying on the road and allegedly left the scene of the accident without calling for help, as required by General Statutes §
The first count of the plaintiff's amended complaint alleges that the plaintiff's injuries and damages were caused by the negligent driving of John Kelly. The second count alleges that John Kelly was negligent in failing to comply with §
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Quotation marks omitted.) Pelletier v. Sordini/Skanska Construction Co., CT Page 3717
As a basis for its motion for summary judgment, USAA states that the underlying action is a motor vehicle claim and the defendant's USAA homeowner policy has an exclusion for such liability under Section II of said policy.2 The defendant counters specifically that the second count of the amended complaint, which alleges failure to render assistance, was an independent non-intentional act of negligence unrelated to the use or operation of a motor vehicle. Accordingly, the defendant argues that summary judgment should be denied as to count two.
Section II of Kelly's USAA homeowner's policy limits personal liability and medical payment coverage by excluding any medical payments to others for bodily injury or property damage "caused by the intentional or purposeful acts of any insured, including conduct that would be reasonably be expected to result in bodily injury to any person or property damage to any property . . ." or for injuries "arising out of the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured . . ."
Count two of the amended complaint alleges that Kelly "who knew or should have known that his conduct caused such bodily harm to the plaintiff as to render him helpless and in danger of further harm, had a common law duty to render aid and assistance to the plaintiff . . . The decedent, John Kelly, who was knowingly involved in an accident which caused serious physical injury to the plaintiff, had a statutory duty to render aid and assistance to the plaintiff pursuant to Connecticut General Statutes Section
Furthermore, the second count alleges injuries arising from a breach of duty of the defendant, separate from the conduct causing and leading to the automobile accident, that do not arise out of the use of an automobile. Specifically, paragraph 23 of count two states: "the aforementioned negligent or careless actions and/or inactions of the decedent John Kelly, in failing to render assistance or calling for CT Page 3718 help, or staying to comfort the plaintiff caused, exacerbated, aggravated, accelerated and/or lighted up and further added to the extent and severity of the plaintiff's injuries in one or more of the following respects: a. Increased emotional disturbance; b. Nightmares; c. Anger; d. Fear; e. Flashbacks . . ." (Amended complaint). These injuries do not fall within the Section II exclusions of the USAA homeowner's policy language.
In Hogle v. Hogle,
Count one alleges negligence arising out of the use of a motor vehicle. Count three specifically alleges reckless conduct arising out of the use of a motor vehicle. Since these counts fall directly within the language of Section II of the policy, USAA's motion for summary judgment is granted as to these counts. Count four alleges loss of consortium on behalf of the plaintiff's wife. In so far as these injuries are tied to those specifically alleged in paragraph 23 of count two, summary judgment will be denied.
Based on the foregoing, USAA's motion for summary judgment is granted as to counts one and three, but denied as to counts two and four, in so far as count four (alleging loss of consortium on behalf of the CT Page 3719 plaintiff's wife) relates to the injuries alleged in paragraph 23 in count two. The court limits the damages recoverable under John Kelly's USAA homeowner's policy to those stated in paragraph 23 of count two. USAA's duty to indemnify and defend the insured defendant is limited and defined in the above manner.
MINTZ, J.