Bernadette Roberts et al. v. Elizabeth Van Why et al. (2011)

RULING ON MOTION TO REARGUE NO. 168

The motion is denied.   The court has reconsidered its decision and issues the following clarification.   On June 9, 2011, this court issued a memorandum of decision denying the motion for summary judgment filed by third-party defendant Travelers Indemnity Company of America (No. 156).   The court was tasked with determining whether there exist genuine issues of material fact with respect to two issues:  (1) Whether the property damage occurred to “property owned by ․ rented to, occupied by or used by or in the care of the insured plaintiff, Elizabeth Van Why;  and (2) Whether the property damage was “expected or intended by the insured.”   The court denied summary judgment on the ground that there exist genuine issues of material fact, with respect to these issues, that are dispositive of whether the policy provides coverage for the claimed loss.   The defendant has filed a motion to reargue (No. 169).

With respect to the first issue, the questions of whether the property was “owned by,” “occupied by,” “used by” or “in the care of” the plaintiff when the damage occurred are factual determinations, most or all of which are disputed by the parties.   And, although the plaintiff admits that she retained a key to the property, there remain genuine issues of material fact as to whether the plaintiff's ability to access the property constitutes “occupation,” “use” or “care” such that the policy exclusion applies.

With respect to the second issue, the court's use of the term “intentional” refers to property damage that is “expected or intended by the insured,” as opposed to unintentional and/or unexpected conduct that would not fall within the policy's intentional acts exclusion.   It is noted that the damage may have been negligently—but not intentionally or expectedly —caused by the plaintiff, and so would not be excluded from coverage.   The plaintiff attests that she did not expect or intend the property damage to occur, and the court has concluded that the defendant failed to sustain its burden of proving that there exist no genuine issues of material fact as to whether the property damage was intended or expected by the plaintiff.

The court's determination that the defendant has a duty to defend the plaintiff is in no way “inconsistent” with this court's denial of summary judgment on the ground that there exist questions of fact dispositive of whether the defendant insurance company must indemnify the plaintiff for the claimed loss.  “[A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint ․ [T]he duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  DaCruz v. State Farm Fire and Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).   In contrast, “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.”  (Internal quotation marks omitted.)  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).

The motion for reargument is denied.

Domnarski, J.

Domnarski, Edward S., J.