New London County Mutual Insurance Company v. Andrzej Bialobrodec (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 109)

Facts and Procedural History

This action arises from the tragic and untimely death of TyCody Dzikiewicz, a minor who was killed in motorcycle accident.   Edward Dzikiewicz, the administrator of TyCody Dzikiewicz's estate, filed suit against Andrzej Bialobrodec, Grazyna Bialobrodec, and Adrian Bialobrodec.   Specifically, Edward Dzikiewicz alleges that Adrian Bialobrodec, who resided with his parents at the time of the accident, allowed TyCody Dzikiewicz to use his motorcycle even though he was inexperienced at operating one.   TyCody Dzikiewicz lost control of the motorcycle and crashed into a tree, which resulted in his death.   Edward Dzikiewicz alleges that the Bialobrodecs were negligent in supervising, entrusting, monitoring, and encouraging TyCody to use the motorcycle.

The plaintiff for the purposes of this motion, New London County Mutual Insurance Company, filed a single-count complaint on February 16, 2010, against the defendants, the Bialobrodecs.   In its complaint, the plaintiff seeks a declaratory judgment from the court that the plaintiff has no duty to defend or pay on behalf of the defendants any damages arising out of Edward Dzikiewicz's negligent supervision claim against them.

The plaintiff filed its motion for summary judgment on August 30, 2010.   On November 5, 2010, the court, Martin, J., granted the plaintiff's motion to cite in Edward Dzikiewicz, as an additional party defendant.   On December 23, 2010, Edward Dzikiewicz filed an objection to the plaintiff's motion for summary judgment.   The plaintiff filed its reply on January 14, 2011.   The parties, including the Bialobrodecs appearing pro se, presented their arguments to the court at short calendar on February 14, 2011.

Discussion

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

The plaintiff argues that under the terms of the defendants' homeowner's policy, it has no duty to defend or indemnify the defendants for damages sustained by TyCody Dzikiewicz, as the result of the motorcycle accident.   Edward Dzikiewicz counters that there is a genuine issue of material fact as to whether the plaintiff has a duty to defend or indemnify the defendants.   At oral argument, the Bialobrodecs similarly urged this court to deny the plaintiff's motion.

“It is well settled that an insurer who maintains that a claim is not covered under its insurance policy can either refuse to defend or it [can] defend under a reservation of its right to contest coverage under the various avenues which would subsequently be open to it for that purpose.”  (Internal quotation marks omitted.)  Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 152–53, 681 A.2d 293 (1996).  “[A] duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage.”  (Internal quotation marks omitted.)  Schwartz v. Stevenson, 37 Conn.App. 581, 584, 657 A.2d 244 (1995).  “[I]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.”  (Internal quotation marks omitted.)   Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005).

Moreover, “construction of a contract of insurance presents a question of law for the court ․ An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract ․ In accordance with those principles, [t]he 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 ․ If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning ․ Under those circumstances, the policy is to be given effect according to its terms ․ When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.”  (Citations omitted;  internal quotation marks omitted.)  Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 5–6, 942 A.2d 334 (2008).

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading ․ Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy ․ This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.”  (Citations omitted;  internal quotation marks omitted.)  Id., 6.

The plaintiff contends that the “the motor vehicle exclusion,” of the defendant's homeowner's policy relieves it of its duty to defend or indemnify them against Edward Dzikiewicz's claims.   This exclusion states:  “Personal liability and coverage ․ do not apply to ‘bodily injury’ ․ [w]hich is expected or intended by the ‘insured’ ․ [a]rising out of (1) The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances ․ owned or operated by or rented or loaned to an ‘insured;’ (2) The entrustment by an ‘insured’ of a motor vehicle or any other motorized land conveyance to any person;  or (3) Vicarious liability, whether or not statutorily imposed, for the actions of a child or minor using a conveyance excluded in paragraph (1) or (2) above.”   Dzikiewicz counters that his allegations of negligence against the defendants are separate and distinct from TyCody Dzikiewicz's use of a motorcycle.   Specifically, Edward Dzikiewicz argues that the act complained of is the defendant's act of giving TyCody Dzikiewicz, a minor, a motorcycle.

In Allstate Ins. Co. v. Foster, Superior Court, judicial district of New Haven, Docket No. CV 07 4026117 (May 14, 2008, Cosgrove, J.) (45 Conn. L. Rptr. 589, 592), the court held that a homeowner's insurance policy did not cover a named insured's alleged liability for his adult daughter's negligent operation of a motor vehicle.   The exclusionary language involving negligent supervision provided, in relevant part:  “We do not cover any bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer ․ We do not cover bodily injury or property damage arising out of the negligent supervision by an insured person of any person;  or any liability statutorily imposed on any insured person arising from the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any ․ motor vehicle ․” Id., 590.

The court reached its conclusion that the policy exclusion applied by examining appellate law addressing such exclusions.  “The Connecticut Supreme Court has construed motor vehicle exclusionary provisions within insurance policies.  [I]t is generally understood that for liability for an accident or an injury to be said to ‘arise out of the ‘use’ of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, 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 use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile.”  (Internal quotation marks omitted.)  Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975).”  Id., 591.

“In United Services Automobile Assn. v. Kaschel, 84 Conn.App. 139, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004), the Appellate Court determined that the plaintiff, issuer of a homeowner's insurance policy, did not have a duty to defend any of the four counts in the original complaint because all of the actions arose out of the use of a motor vehicle, which was subject to exclusionary language.   The motor vehicle accident was the operative event giving rise to the injuries alleged ․ and, therefore, those injuries were connected with, had their origins in, grew out of, flowed from, or were incident to ․ the use of the vehicle.”  (Internal quotation marks omitted.)   Id.

The court continued:  “While substantial case law has interpreted motor vehicle exclusions within a homeowner's policy, courts offer less guidance when it comes to a claim of negligent entrustment or supervision.   Relying on Supreme Court decisions ․ Superior Courts have interpreted a negligent entrustment theory of liability as falling within the ambit of a motor vehicle exclusion.   For example, in U.S.A.A. Property and Casualty Insurance v. McKeever, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 92 51968 (August 9, 1995, Klaczak, J.) (14 Conn. L. Rptr. 588), the court granted summary judgment, finding that a negligent supervision claim was sufficiently related to the automobile accident, which fell under an insurance exclusion.   Having applied the aforementioned rule from Hogle, the McKeever court stated:  it appears that the automobile exception encompasses the negligent supervision claim since the injuries sustained flowed from the ownership and use of a motor vehicle owned or operated by an insured ․ Moreover, the court in Hogle has held that the insurer's obligation to pay does not depend on whether there is a separate and distinct cause of action.   Instead, it hinges on whether the use of a car was connected with the accident or the creation of a condition that caused the accident.”  (Citation omitted;  internal quotation marks omitted.)  Id., 591–92.

“In Pister v. Nationwide Mutual Insurance, Co., Superior Court, judicial district of Danbury, Docket No. CV 06 4005239 (April 13, 2007, Shaban, J.), a plaintiff alleged wrongful denial of insurance coverage for an accident involving an all terrain vehicle.   The court addressed both the motor vehicle exclusion language of a homeowner's policy as well as whether a negligent entrustment claim could be separated from the motor vehicle entrustment claim.   The court noted that [o]ur appellate courts have not specifically determined whether a claim against an insured for his or her negligent entrustment of a motor vehicle to another is a claim that is subject to a motor vehicle exclusion in the insured's homeowner's policy.   Our Supreme Court has decided, however, that a claim against insured parents of a minor who takes a motor vehicle without the owner's permission are jointly and severally liable for the damages and injuries that the minor causes, does come within a motor vehicle exclusionary clause in the parent's homeowner's policy ․ It is also noteworthy that the trend in other jurisdictions is to conclude that motor vehicle exclusions in homeowner's policies also exclude negligent entrustment claims on the basis that such claim are not separate from the underlying act of negligence.”  (Citation omitted;  internal quotation marks omitted.)  Id., 592.

In light of these principles, the court in Allstate Ins. Co. v. Foster, concluded that the plaintiff's “allegations of negligent supervision or entrustment are causally linked to the use o the motor vehicle, and like Pister, would be excluded under the motor vehicle provision.   Further, the plaintiff's policy includes separate and distinct negligent entrustment exclusion, providing further support for the exclusion of coverage for such claims ․ The plain meaning of the relevant policy provisions and considering the common law, the allegations ․ fall squarely within the exclusionary language of the plaintiff's homeowners insurance policy.   It is unnecessary to contemplate whether or not a claim of negligent supervision is excluded under the automobile exclusion in the plaintiff's policy as the policy in this case includes separate, distinct and adequate language to that end.   The ‘fixed and immutable’ allegations from the underlying case fall within the plaintiff's policy exclusions.   The plaintiff's motion for summary judgment is granted.”   Id.

In the present case, the plaintiff's policy excludes coverage “[a]rising out of ․ [t]he ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances ․ owned or operated by or rented or loaned to an ‘insured.’  “ The policy also specifically excludes coverage arising out of “[t]he entrustment by an ‘insured’ of a motor vehicle or any other motorized land conveyance to any person;  or [v]icarious liability, whether or not statutorily imposed, for the actions of a child or minor using a conveyance excluded in paragraph (1) or (2) above.”

Edward Dzikiewicz's allegations against the Bialobrodecs sound in negligent supervision and negligent entrustment in connection with TyCody Dzikiewicz's use of the Bialobrodecs' motorcycle.   Connecticut courts have consistently interpreted a negligent entrustment and/or negligent supervision theory of liability as falling within the ambit of a motor vehicle exclusion.   As a result, the court is satisfied that the plaintiff is entitled to judgment.

Conclusion

For all of the foregoing reasons, the plaintiff's motion for summary judgment is hereby granted.

Martin, J.

Martin, Robert A., J.