Truck Insurance Exchange v. Keith Buinauskas et al. (2012)

MEMORANDUM OF DECISION

This is an action for declaratory judgment brought by the plaintiff, Truck Insurance Exchange, against the defendants, Keith Buinauskas and Brian Lambert.   The eleven-count complaint alleges that the plaintiff issued a homeowners insurance policy to Lambert, and that Buinauskas, a state trooper, brought an action against Lambert arising out of injuries that Buinauskas claims to have sustained in the course of arresting Lambert at his home.   The plaintiff seeks a declaratory judgment that it is not required to provide a defense or indemnity to Lambert in the suit brought by Buinauskas.

The defendant, Brian Lambert, has moved (# 101) to strike counts three, four, seven and eight as well as the prayer for relief which seeks fees and costs.   The plaintiff has objected.   The motion was argued at the short calendar on November 21, 2011.

The Buinauskas complaint against Lambert alleges the following:  Trooper Buinauskas and his partner officer responded to a call at Lambert's home concerning violation of a restraining order.   Lambert appeared at the head of the stairs and refused the trooper's order to come down to the first floor and retreated into a bedroom.   Buinauskas and his partner entered the bedroom and informed Lambert that he was under arrest and ordered him off the bed where he was lying and on his feet.   Lambert refused and said “Try and get me off the bed.”   Buinauskas and his partner tried to physically take Lambert into custody.   Lambert, who weighed two hundred and fifty pounds, became combative by rising up and then suddenly lunging backwards onto the bed, kicking at the second officer from a prone position.   When Lambert propelled himself backwards, he landed with all his weight on Buinauskas's right hand, bending the thumb backwards to the forearm and causing injury and pain.   Buinauskas alleges that his injury was caused by Lambert's negligence in a variety of ways.

Count Three and Count Four

The third count alleges that the plaintiff has no duty to defend Lambert based upon an exclusion in the insurance policy entitled “Sexual Molestation, Corporal Punishment or Physical or Mental Abuse” and which provides that coverage does not apply to bodily injury or property damage arising out of sexual molestation, corporal punishment or physical or mental abuse.   The fourth count alleges that the plaintiff has no duty to indemnify Lambert based upon the same exclusion.   Lambert moves to strike both counts because the complaint filed by Buinauskas does not allege that Lambert sexually molested Buinauskas or subjected Buinauskas to corporal punishment or physical or mental abuse.

In support of his claim that the exclusion does not apply to the allegations of the Buinauskas complaint, Lambert cites a New Jersey criminal case and Black's Law Dictionary for the proposition that the allegations of Lambert's “passive resistance” to Buinauskas's “illegal arrest” do not fall within a reasonable person's interpretation of what the insurance policy means by “physical abuse.”

In support of its claim that the exclusion fits the allegations of Buinauskas' complaint, the plaintiff relies on authority from the Federal District Court of Connecticut that:  “[A]n improper ‘use’ or maltreatment, of another is ‘abuse.’   Stated another way, an act constitutes ‘abuse’ if it deviates from proper ‘use,’ and ‘abuse’ of another person is therefore maltreatment that deviated from a baseline societal understanding of what is appropriate conduct.   The act of abuse may, but is not required to be motivated by an insured's subjective expectation or intent that bodily injury will occur.”   Safeco Insurance Company of America v. Vecsey, 2010 WL 3925126 (D.Conn., September 30, 2010).

The allegations of the Buinauskas complaint are sufficiently clear to be read so as to allege physical abuse by Lambert.   For example, one of the allegations of negligence in the Buinauskas complaint is that Lambert was negligent in that he “used his massive body as a projectile, simultaneously aimed fore and aft, knowing Plaintiff [Buinauskas] and his fellow trooper were positioned there, in such a manner that he knew or should have known that physical injury was the likely outcome of his conduct.”   Assuming that this allegation is true, it could constitute “maltreatment that deviated from a baseline societal understanding of what is appropriate conduct.”  Id. For this reason, the motion to strike the third and fourth counts is denied.

Count Seven and Count Eight

The seventh count seeks a declaration that the plaintiff has no duty to defendant Lambert because of the application of the “Professional Services” exclusion in the insurance policy.   That exclusion applies to bodily injury “arising out of the rendering of or failure to render professional services.”   The eighth count seeks a declaration that the plaintiff has no duty to indemnify Lambert based upon the same exclusion.

Lambert moves to strike both counts on the ground that Lambert was not rendering any professional service at the time of the incident and that the exclusion does not apply to Trooper Buinauskas.   The plaintiff argues that the plain language of the exclusion makes it applicable to both the insured and the injured party;  the exclusion applies if the injury arises out of the rendering of or failure to render professional services by either the insured or the injured party.

Neither party has presented the court with any applicable case law.   The cases offered by the plaintiff do support the proposition that police work can be considered “professional services.”   But none of the cases cited by the plaintiff involve facts where the police officer is the injured party.

The court agrees with Lambert's argument that acceptance of the plaintiff's position would lead to absurd results which no one would expect.   For example, a homeowner would have no coverage for bodily injury sustained by plumbers, electricians, lawyers, doctors or any other professional called to the home to render services.  “[T]he determinative question [in interpreting an insurance policy] 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.”  Nat'l Grange Mut. Ins. Co. v. Santaniello, 290 Conn. 81, 88 (2009).   It seems obvious to the court that neither the plaintiff nor Lambert or any other insured would have expected that an ordinary homeowners insurance policy would not provide coverage for injuries to professionals who come to the home to provide services.

The motion to strike the seventh and eighth counts is granted.

Fees and Costs

Lambert also moves to strike subsection (e) of the prayer for relief requesting fees and costs.   Lambert claims that there is no contractual basis for a claim for fees and costs.   Lambert also claims they are prohibited by common law, and cites ACMAT v. Greater New York Mutual Insurance Co., 282 Conn. 576 (2007), for the proposition that neither an insured nor an insurer is entitled to attorneys fees as a result of a declaratory action.   In response, the plaintiff cites Security Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co., 264 Conn 688, 717–18 (2003), for this proposition:  “A cause of action for reimbursement is cognizable to the extent required to ensure that the insured not reap a benefit for which it has not been paid and thus be unjustly enriched.   Where the insurer defends the insured against an action that includes claims not even potentially covered by the insurance policy, a court will order reimbursement for the cost of defending the uncovered claims in order to prevent the insured from receiving a windfall.

The plaintiff is defending Lambert in the underlying lawsuit pursuant to a reservation of rights.   It would be tempting to say that the allegations of the Buinauskas complaint are at least potentially covered by the plaintiff's policy with Lambert.   Certainly it appears at this stage that there is at least a potential for coverage.   But, the court believes that it is too early to make this decision.   The court will permit the parties to engage in discovery and to renew this argument on a motion for summary judgment or at trial.   The motion to strike the prayer for relief is denied.

BY THE COURT,

John W. Pickard

Pickard, John W., J.