Amica Mutual Insurance Company v. Audrey Cody et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S RYAN M. PANNY'S MOTION TO DISMISS DATED FEBRUARY 6, 2013 (# 126.00)

This Motion to Dismiss involves the question of which lawsuit should be tried first, the underlying willful and/or negligent assault personal injury lawsuit or this insurance company declaratory judgment action?

The Motion to Dismiss states:  “Pursuant to Connecticut Practice Book § 10–31, the Defendant, Ryan Panny, moves to dismiss the Plaintiff's Complaint to the extent it seeks to litigate the duty to indemnify prior to a resolution of the underlying case, Cody v. Panny, DN FST CV 09–5011491 S. As a result, that aspect of the case is premature, and the lack of ripeness and/or justiciability at this time deprives the Court of subject matter jurisdiction over that portion of the case.”

“The issue in controversy pivots on whether the Amica insured, Panny, having struck George Cody (the Plaintiff in the aforementioned underlying action) was intentional or negligent conduct.”   The plaintiff's Objection to Motion for Summary Judgment dated February 22, 2013 (# 133.00, page 1).

The operative complaint in the underlying tort action, Cody v. Panny, is the plaintiff's February 21, 2013 two-count Amended Complaint (# 113.00).   The plaintiff, George Cody, III, alleged to be fourteen years of age on June 4, 2007, brought the lawsuit by Audrey Cody, as parent and next friend of George Cody, III. According to the underlying tort complaint George Cody, III played a prank on the defendant, Ryan M. Panny, by moving his shoes from where they were sitting.   Eventually George told Ryan where the shoes were located.   The complaint continues:  “6. The Defendant retrieved one of his shoes, but left the area of 12 Amherst Road. 7. The Defendant returned shortly thereafter, with a metal baseball bat in hand. 8. The Defendant then approached the Plaintiff and smashed the Plaintiff in the face with a metal baseball bat with great force, causing him serious injuries hereinafter described.”   The injuries included an open nasal fractures, extensive laceration of the nasal bridge, concussion, post-traumatic stress, double vision and light sensitivity, depression as well as emotional pain and suffering. “11.   As a further result, the Plaintiff was made more susceptible to sustaining concussions and thereafter did in fact sustain a second, third, fourth, and fifth concussion.   The initial injury was a substantial contributing factor to each of the subsequent concussions.”

The First Count alleges:  “9. The Defendant's assault and battery, of the Plaintiff was intentional and wanton and malicious.”   The Second Count realleges the injuries as well as the prank in paragraphs 6, 7, 8. The Second Count is plead in the alternative and alleges the following claim of negligence:  “9. The plaintiff contends that the defendant's actions were intentional and unjustified.   However, in the event that the defendant prevails in his claim that he was justified in using force, the defendant notwithstanding remains liable to the plaintiff for having negligently used excessive force given the circumstances then prevailing.”   The plaintiff's claim for relief seeks money damages and punitive damages.   The plaintiff, Amica Mutual Insurance Company, in this declaratory judgment action is not a party in the underlying tort lawsuit.

To this complaint the defendant, Ryan M. Panny, has filed four special defenses;  (1) “The Plaintiff is not entitled to punitive damages if he proves his claim as he provoked the Defendant into action,” (2) “The Defendant's actions were not intentional in that he did not intend to cause physical harm to the Plaintiff,” (3) “If the Plaintiff proves his claim, the Defendant is entitled to a reduction in any award for any amounts paid to date to the Plaintiff from any and all other sources in connection with this claim,” and (4) “The Defendant acted with the belief that his actions were necessary to defend himself and his property based on the history of conduct between the parties and the Plaintiff's threatening and confrontational manner at the time, and therefore the results of the Defendant's actions were either justified or the result of, if anything, a negligent and not an intentional act.” (# 111.00.)

The underlining tort lawsuit, Cody v. Panny, was returnable to the Superior Court on June 2, 2009, has been claimed to the jury list and has been assigned for a jury trial scheduled to commence during the week of December 10, 2013.

The plaintiff in this declaratory judgment lawsuit, the Amica Mutual Insurance Company (Amica), is the insurance company that issued a homeowner's insurance policy covering the residence occupied by the defendant, Ryan M. Panny, on June 4, 2007 when Ryan M. Panny was fourteen.   The two defendants in this instant matter are Audrey Cody in her capacity as parent and next friend of George Cody, III and Ryan M. Panny.   Ryan M. Panny has now attained majority.   Upon information and belief George Cody, III has also attained majority.   In effect the two defendants in this instant Amica case are the two fourteen years olds that have now attained the age of majority.

Amica filed this action for a declaratory judgment concerning the coverage offered by the Panny's homeowner's insurance policy.   This declaratory judgment lawsuit was returnable to the Superior Court on June 29, 2010.   The pleadings have been closed and matter claimed to a court trial.   The first court trial was the week of April 18, 2013.   The court trial in this declaratory judgment lawsuit has now been scheduled to commence on July 8, 2013, more than five months prior to the commencement of the jury trial of the underlying tort case.   Therein lies the practical problem presented to this court.

The Motion to Dismiss alleges lack of subject matter jurisdiction.  P.B. 10–31(a)(1).

“Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)  Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989).   The Supreme Court has termed this “fundamental principle” the “ ‘jurisdiction first’ rule.   Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ The court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011.)

“[T]rial courts addressing motions to dismiss for lack of subject matter jurisdiction ․ may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts ․ Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ․ Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347–48 (2009).

The parties waived an evidentiary hearing on this Motion to Dismiss.   The parties submitted additional documentation;  the underlying tort lawsuit's February 21, 2013 operative complaint (# 113.00).   Therefore, this Motion to Dismiss has been presented to the court as instance (2):  “the complaint supplemented by undisputed facts evidenced in the record.”  Electrical Contractors, Inc. v. Department of Transportation, 303 Conn. 402, 422–23, fn. 17 (2012).

The court will discuss the duty to defend and then the duty to indemnify, two obligations that Amica may have in this case.

An insurer's duty to defend ․ is determined by reference to the allegations contained in the underlying complaint.  Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247 Conn. 801, 807 (1999) ․ Moreover, the 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.   If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability ․ Hence, if the complaint sets forth the cause of action within the coverage of the policy the insurer must defend ․ Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage ․ DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688 (2004).

Misiti, LLC v. Travelers Property Casualty Company of America, 308 Conn. 146, 155–56 (2013).

“Where a complaint in an action against one to whom a policy of liability insurance has been issued states different causes of action or theories of recovery against the insured, and one such cause is within such coverage of the policy but others may not be within such coverage, the insurer is bound to defend with respect to those which, if proved, are within the coverage.”   Schurgast v. Schumann, 156 Conn. 471, 490 (1968).

The underlying tort lawsuit has alleged a second count of negligence.   Amica has acknowledged its duty to defend and has hired counsel who has appeared and defended in the underlying tort case.   Cody v. Panny, FST CV 09–5011491 S. Amica's duty to defend is not at issue in this Motion to Dismiss.

“In contrast to the duty to defend, the duty to indemnify is narrower:  while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case.”  DaCruz v. State Farm Fire & Casualty Co., supra, 268 Conn. 687–88;  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 171 (Eveleigh, dissenting).

“Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable,” Atkinson v. Berloni, 23 Conn.App. 325, 326 (1990).  “Generally, indemnity agreements fall broadly into two classes, those in which the contract is to indemnify against liability and those in which it is to indemnify against loss.   In the first, the cause of action arises as soon as liability is incurred, but in the second it does not arise until the indemnitee has actually incurred the loss ․ When an indemnity agreement, however, indemnifies against liability as well as against loss ․ the indemnitee does not have to wait until the loss occurs, but may sue on the agreement as soon as liability is incurred.”  Amoco Oil Co. v. Liberty Auto and Electric Co., 262 Conn. 142, 149 (2002).   The parties did not brief or argue the two classes of indemnity agreements nor whether this homeowners policy fell into one of the two classes.

In this case the plaintiff, Amica, has filed a declaratory judgment action based upon the homeowner's insurance policy it issued to the Panny household claiming that the assault and battery claims are intentional.   Amica argues that despite the fact that one count claims those actions to be negligent, those claims are not covered under the insurance policy and are excluded by the specific language of a number of provisions of the homeowner's insurance policy.   One claim by Amica for disavowing coverage is the following Exclusion language:  “bodily injury or damage which is either expected or intended by a covered person.”   Another claim by Amica for disavowing coverage is an amended Exclusion language:  “We do not provide coverage for bodily injury damage for a covered person who commits or directs an act with the intent to cause a loss.”

The plaintiff in the tort case, George Cody, III, has the right under Connecticut statutes to proceed to judgment.   Once obtaining a judgment against the Pannys, George Cody, III may then file a lawsuit directly against Amica under the homeowner's liability policy.  “Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”  General Statutes § 38a–321.   Utilizing that procedure, Amica could have waited until the underlying tort lawsuit was concluded to determine if George Cody, III would have obtained a judgment.   Amica could then have waited until George Cody, III filed a direct lawsuit against Amica under General Statutes § 38a–321.   In that lawsuit Amica could offer defenses including but limited to claims that under the terms of the homeowners insurance policy this action was intentional or criminal and is not a covered claim under the homeowners policy.   In that scenario, the underlying tort case would be tried first and the insurance coverage issue will be tried in a second lawsuit filed pursuant to General Statutes § 38a–321.

In this case Amica has chosen not to wait until the underlying tort lawsuit is resolved.   It is seeking a declaratory judgment under General Statutes § 52–29 in order to obtain a court determination of its rights and obligations under the homeowner's policy after notice has been served upon both the plaintiff and the defendant in the underlying tort case.   It is well recognized that insurance companies may file declaratory judgment lawsuits in the Superior Court in order to determine coverage under its insurance policies with its insureds.  Lexington Insurance Company v. Lexington Healthcare Group, Inc., 309 Conn. 1, 6. Fn. 6;  Mannweiler v. La Flamme, 232 Conn. 27, 33 (1995);  St. Paul Fire Insurance Company v. Shernow, 22 Conn.App. 377, 380–81 (1990), 222 Conn. 823 (1992).  “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.”  General Statutes § 52–29.   See P.B. § 17–54 through 17–59.

The plaintiff's Motion to Dismiss alleges lack of subject matter jurisdiction:  “Jurisdiction of the subject-matter is the power of the court to hear and determine cases of the general class to which the proceedings in question belong ․ A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy ․ Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before the proceeding further with the case ․” Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4 (1996).   In this case the defendant, Ryan Panny, is claiming lack of subject matter jurisdiction based upon two legal theories;  lack of ripeness and the lack of a justicability.  “Justicability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicates a court's subject matter jurisdiction and its competency to adjudicate a particular matter.”  Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569 (2004).   It is not entirely clear from Connecticut case law where one doctrine begins and the other ends.  “Our Supreme Court has not defined expressly the precise relationship between ripeness and justicability, but it is well settled in the federal courts that ripeness is one of several justicability doctrines, including standing and mootness.”  Liberty Mutual Insurance Company v. Lone Star Industries, Inc., 290 Conn. 767, 812 (2009).

“When a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged ․ We have often stated that the Superior Court is a court of general jurisdiction ․ Article fifth, § 1 of the Connecticut constitution proclaims that the powers and jurisdiction of the courts should be defined by law, and ․ § 51–164s provides that Superior Court shall be the sole court of original jurisdiction for all causes of action ․ as provided by statute ․ The general rule of jurisdiction ․ is that nothing shall be intended to be out of the jurisdiction of the Superior Court but that which especially appears to be so ․ Keller v. Beckenstein, 305 Conn. 523, 538 (2012).   The court finds that this court has subject matter jurisdicition in general of declaratory judgment lawsuits brought by liability insurance companies against their insureds in order to determine insurance coverage.  Hartford Casualty Insurance Company v. Litchfield Mutual Fire Insurance Company, 274 Conn. 457, 464 (2005).

“Ripeness, however, is not a statutory restriction of a court's jurisdiction.   Rather, it is a judicially created doctrine of justicability that implicates a court's subject matter jurisdiction.”  Keller v. Beckenstein, supra, 305 Conn. 537.   The Supreme Court concluded in Keller v. Beckenstein, that the ripeness doctrine does not preclude the Superior Court from exercising jurisdiction pursuant to General Statutes § 45a–363.  “In the present case, our common-law ripeness doctrine must yield to the legislature's decision to grant jurisdiction over the type of claims identified in §§ 45a–353(d) and 45a–363.”  Id. 538.

“The rationale of the ripeness requirement ․ is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”  Liberty Mutual Insurance Company v. Lone Star Industries, Inc. supra, 290 Conn. 813–14.  “In light of the rationale of the ripeness requirement, to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ․ Nizzardo v. State Traffic Commision, 259 Conn. 131, 144, 788 A.2d 1158 (2002);  we must be satisfied that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  Esposito v. Specyalski, 268 Conn. 336, 346 (2004).

A number of courts have applied those two tests:  hypothetical injury and/or the claim contingent upon some event that has not and indeed may never transpire.   Applying those tests lawsuits have been dismissed due to lack of ripeness.   The court “must be satisfied that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626 (2003).

In 2009 the Appellate Court decided Hamilton v. USAA, 115 Conn.App. 774 (2009).   The plaintiff, as the conservator of the estate of the injured victim, instituted a lawsuit against John Thorson alleging negligence.   The plaintiff also filed a complaint seeking a declaratory judgment that alleged that Thorsen's insurance company had disclaimed coverage of the claims, refused to provide insurance coverage to Thorsen and refused to provide Thorson with a defense.   The declaratory judgment action was filed before the underlying tort lawsuit was determined.  USAA alleged lack of subject matter jurisdiction in a motion to dismiss stating that the injured plaintiff's claim was not ripe for adjudication and the plaintiff's rights were preserved pursuant to General Statutes § 38a–321.   The trial court dismissed the USAA lawsuit concluding that there had been no determination of liability or damages in the underlying Thorson tort lawsuit.   The trial court further found that the plaintiff could not avail herself of General Statutes § 38a–321 until a final judgment in the underlying tort litigation.   The Appellate Court affirmed the trial courts dismissal and the Supreme Court denied cert.

In the declaratory judgment action before us, the allegations in the Thorson action are known, but the evidence that the plaintiff will present in her effort to prove those allegations and the jury's findings are not.   Until the evidence is known, as well as the jury's verdict with respect to those allegations, it is not possible to determine whether the defendant is obligated to indemnify Thorson.   The action therefore seeks the answer to a hypothetical question, which is not the purpose of a declaratory judgment action.   As the plaintiff stated in her opposition to the defendant's motion to dismiss, she is seeking advice as to whether to subject the victim to the rigors of litigation.  “[A court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003).   Here, the plaintiff's claims are not yet ripe because they are contingent on the outcome of the Thorson action.   We decline to accept the plaintiff's request that the trial court issue, in a factual vacuum, what would in effect be an advisory opinion.   We conclude, therefore, that the court properly granted the defendant's motion to dismiss.

Hamilton v. United Services Automobile Association, 115 Conn.App. 774–75, cert. denied, 293 Conn. 924 (2009).

In a 1966 case the Supreme Court had before it General Statutes § 38–175, the predecessor to the General Statutes § 38a–321.   The insurance company that covered the insured, not the injured plaintiff, brought a declaratory judgment action.   The injured plaintiff, Greguoli, had sued in a separate tort action the tortfeasor, Williamson, for damages for personal injury resulting from Williamson's negligent operation of a truck in which Greguoli was a passenger.   At the time of the injuries, Greguoli claimed coverage under the insurance policy issued by then plaintiff in the declaratory judgment action, the Hartford Accident and Indemnity Company (Hartford).   Hartford in the underlying tort lawsuit claimed that the policy did not cover Williamson and sought a separate declaratory judgment that the policy did not cover Williamson.   Hartford claimed that based on an exclusionary clause that it was not obligated to defend him in the underlying tort lawsuit and was not obligated to pay any judgment obtained by the injured Greguoli in the underlying tort action.   The injured party, Greguoli, filed a demurrer to the Hartford's declaratory judgment complaint on the grounds that the case was not proper for a declaratory judgment because the plaintiff, Hartford, should be left to legal remedy of defending a lawsuit under General Statutes § 38–175, now General Statutes § 38a–321.  “Until Greguoli succeeds in obtaining a judgment against Williamson, the question of the necessity for the plaintiff to respond to it does not arise.   If Greguoli does recover a judgment, then General Statutes 38–175 provides the means for that determination whether that judgment is against a person was insured by the plaintiff against liability involved.”  Hartford Accident Indemnity Co. v. Williamson, 153 Conn. 345, 350 (1966).   Finding no error in the trial court's granting of Greguoli's demurrer:  “Consequently, the court could properly decide upon the demurrer, as it did, that the only proper exercise of discretion would be to leave the plaintiff to seek redress in a defense to an action under the statute, should the occasion for that arise.”  Id. 350.   Although ripeness was not discussed, the two factual tests of hypothetical injury and contingent claims were applied by the trial court and the Supreme Court.

No appellate decision has cited Hamilton v. USAA so it is still good law.   A number of trial courts have dismissed declaratory judgment lawsuits prior to the determination in the underlying lawsuit.  Bingham v. Department of Public Works, 51 Conn.Sup. 590, 599, 604 (2009);  Hunter v. Olschelski, Superior Court, judicial district of New Haven at Meriden, Docket Number, CV 01–0276707 S (March 29, 2002, Skolnick, J.) [31 Conn. L. Rptr. 585];  Rivera v. Great American E & S Insurance Company et al., Superior Court, judicial district of New London at New London, Docket Number CV 11–6010532 S (May 3, 2012, Martin, J.).  (Citing the following from Hamilton v. USAA;  “When the plaintiff filed this action, her claim against the defendant was, and still is, a mere possibility.   Until there has been a judicial determination that the insured is liable to the plaintiff, the question of whether the insurer is obligated to provide insurance coverage in this declaratory judgment action is a hypothetical one.”  Id. 782–83”);  Doe v. State Department of Health, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 99–0361899 S (July 26, 1999, Skolnick, J.) [25 Conn. L. Rptr. 167];  Senecca N.F.G. v. Klewin Building Company, Inc., Superior Court, judicial district of Hartford at Hartford, Complex Litigation Docket Number X03 CV05–4022266 S (July 18, 2006, Langenbach, J.);   Underwriters at Lloyds of London v. Lauretti's Piepont Tavern, LLC, Superior Court, judicial district of Ansonia, Docket Number CV 02–078675 S (February 26, 2003, Ronan, J.)

The ripeness doctrine has been applied to other factual scenarios denying a lawsuit until the underlying lawsuit was resolved.  “Under Connecticut law, a counterclaim alleging vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious.”  Equality, Inc. v. L–Link Communities, 76 F.Sup.2d 227, 229 (D.Conn.1999);  Town of Lisbon v. R.S.T. Excavation, LLC, Superior Court, judicial district of New London at New London, Docket Number CV 10–6006180 S (February 19, 2013, Martin, J.);   Portanova & Rutigliano, P.C. v. Lynch, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 10–5029394 S (April 10, 2013, Sommer, J.) [55 Conn. L. Rptr. 559] (Cross complaint for legal malpractice in attorneys fees collection lawsuit permitted since liability is not based on a hypothetical event and the facts the defendants rely on to establish malpractice are a matter of record.   The mere fact that damages for the malpractice have not yet been established does not make the counterclaim dismissible for ripeness);  Esposito v. Specyalski, supra, 268 Conn. 349, fn. 14.

The court has reviewed the document referred to in this Motion to Dismiss;  the February 21, 2013 Amended Complaint (# 113.00) in the underlying tort lawsuit, case of Cody v. Panny, FST CV 09–5011491 S. The court finds that the injured plaintiff has alleged a viable claim of negligence to counter the possible claims made by the defendant, Panny.   The alleged facts in the underlying tort lawsuit are not so one-sided that it would be neigh impossible to glean acts of negligence by commission or omission in what may be argued as a willful, deliberate, malicious and criminal assault with a bat.   The court finds that the complaint in the underlying tort lawsuit raises material issues of fact as to negligence.

The court finds that DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675 (2004) does not support denial of this Motion to Dismiss.   In DaCruz the trial judge found that although the two-count complaint in the underlying tort lawsuit alleged negligence and intentional assault, “it was impossible to imagine any conceivable scenario under which an assault like the one described in the DaCruz complaint could be done negligently ․ pointing ineluctably to the conclusion that the assault was intentional.”   Objection to Motion to Dismiss dated March 1, 2013 (# 135.00, page 8).   The trial judge in DaCruz found that there were no material facts at issue and that the acts alleged were intentional, not negligent.   This court has found that the documents before the court raise material issues of fact as to negligence.

The court further finds that none of the cases cited or brought to the attention of this court, change or modify the two tests of hypothetical and/or contingent claim.   None of the plaintiff's cases cited hereafter support the denial of the Motion to Dismiss.

Imperial Casualty & Indemnity Company v. State of Connecticut et al., 246 Conn. 313, 324 (1998) (It was agreed that the facts of the underlying tort case allege intentional conduct on the part of the defendant);  Holy Trinity Church of God in Christ et al. v. Aetna Casualty & Surety Company, 214 Conn. 216, 221 (1990) (Issue of ripeness not raised and decision turned on the analysis of exclusionary provisions of insurance policy);  Atlantic Mutual Insurance Company v. Reverend Arthur Pope, Superior Court, judicial district of New Britain at New Britain, Docket Number CV 99–0497354 S (June 28, 2001, Kocay, J.) (No discussion of ripeness doctrine or of the hypothetical and/or contingent claims tests.   Neither party briefed those issues.   Whether the language of the complaint included the duty to defend, the interpretation of the insurance policy's exclusions, and the definition of occurrence were only matters at issue);  Aetna Casualty & Surety Company v. Anthony Gentile, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 93–353207 (March 22, 1994, Fracasse, J.) [11 Conn. L. Rptr. 144] (Ripeness not discussed.   Defendant's intent, residence and compliance with insurance policy terms at issue.   Trial court found that declaratory judgment was a more speedy, effective, convenient, appropriate, and complete remedy than an action under General Statutes § 38a–321.   Hypothetical/contingent claims tests not discussed in opinion).

The court finds that the plaintiff's declaratory judgment action is not ripe since the underlying tort lawsuit has not been resolved.   The plaintiff, Amica, is already defending under that tort claim and has appeared for the Panny defendants.   If the plaintiff, George Cody, III, is successful in litigating that claim, George Cody, III, can then institute a lawsuit against Amica under General Statutes § 38a–321.   The issue of coverage and indemnity under the homeowners insurance policy can then be litigated.   If the plaintiff, George Cody, III is successful in litigating the underlying tort lawsuit, Amica can then institute a declaratory judgment action against George Cody, III to determine if there is coverage for the underlying tort claim under the Panny's homeowner's insurance policy.

This court hereby grants the defendant, Ryan Panny's Motion to Dismiss dated February 6, 2013 (# 126.00).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.