Western World Insurance Company v. Urmila Thakur, Individually, Urmila Thakur, Trustee et al. (2014)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

In this declaratory judgment action, the plaintiff, Western World Insurance Company (Western World), seeks a declaration that it is not obligated to either defend or indemnify the Shiva Mahal Land Trust or Urmila Thakur, Deowraj Buddhu, or Sunita Buddhu, individually, or as alleged trustees of the Vishnu Mahal Land Trust a/k/a Shiva Mahal Land Trust, the named defendants in eight underlying lawsuits.¹  In addition to the aforementioned parties, who are also named defendants herein, the remaining defendants in the present lawsuit are the plaintiffs in the eight underlying lawsuits.   Those lawsuits, in pertinent part, allege that Urmila Thakur, Deowraj Buddhu, or Sunita Buddhu, individually, or as trustees of the Vishnu Mahal Land Trust a/k/a Shiva Mahal Land Trust, operated a fraudulent debt elimination program and negligently or intentionally disseminated the underlying plaintiffs' confidential personal information (including Social Security numbers, bank information, and driver's license numbers) to third parties, without their consent.   Western World states in the present complaint that it is the insurer of Urmila Thakur, Trustee of the Shiva Mahal Land Trust, and further represents that it has been providing a defense for her, individually, and as trustee, in the underlying lawsuits under a reservation of rights.

The undisputed evidence reveals that Sunita Buddhu is the daughter of Urmila Thakur, and that Deowraj Buddhu was the husband of Urmila Thakur, until 1932, when they divorced.  (See Affidavit of Urmila Thakur.)   Western World brings the present declaratory action stating that it has no duty to defend or indemnify Urmila Thakur, either individually or as trustee of the Shiva Mahal Land Trust, because the claims alleged against her in the underlying lawsuits are outside of the coverage of the insurance policies in question.   Further, Western World seeks a declaration that it does not have a duty to defend or indemnify Deowraj Buddhu or Sunita Buddhu in those lawsuits, because it does not insure those individuals.

On March 14, 2013, Western World filed a motion for summary judgment on its revised complaint.   In support of its motion, Western World filed the following exhibits:  The eight underlying complaints (exhibit 1);  Suarez v. Buddhu, Docket No. HHD CV–12–6032790–S (exhibit 2);  the affidavit of Urmila Thakur (exhibit 3);  the federal criminal complaint against Deowraj Buddhu (exhibit 4);  the federal criminal complaint against Sunita Buddhu (exhibit 5);  the Western World Insurance Co., Commercial Lines Policies issued to Urmila S. Thakur, Trustee, Shiva Mahal Land Trust (exhibit 6);  and the plea agreement between the federal government and Sunita Buddhu and related documents (exhibit 7).

On April 17, 2013, the defendants ² filed an opposition to the motion for summary judgment and the following exhibits:  the affidavit of Urmila Thakur (exhibit 1);  Urmila Thakur's responses to discovery requests in Campos v. Vishnu Mahal Land Trust (exhibit 2);  Sunita Buddhu's responses to discovery requests in Campos v. Vishnu Mahal Land Trust (exhibit 3);  Sunita Buddhu's responses to discovery requests in Illescas v. Vishnu Mahal Land Trust (exhibit 4);  letters exchanged between Deowraj and Sunita Buddhu (exhibit 5);  a letter dated September 25, 2012, from Western World to Urmila Thakur regarding her claim for a defense (exhibit 6);  Urmila Thakur's answer to the complaint in Torres v. Buddhu, Docket No. HHD CV–12–5036196–S (exhibit 7);  the decision in State v. Deowraj Buddhu, 264 Conn. 449, 825 A.2d 48 (2003) (exhibit 8);  Urmila Thakur's objections to discovery requests in Illescas v. Vishnu Mahal Land Trust (exhibit 9);  and the affidavit of Manuel Suarez (exhibit 10).

Oral argument was held on the motion on October 24, 2013.

Summary Judgment Standard

“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 ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312–13, 77 A.3d 726 (2013).  “The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

“The court may address the merits of a declaratory judgment action upon a motion for summary judgment.”  (Internal quotation marks omitted.)   Giglio v. American Economy Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV–02–0282069–S (April 26, 2005, Arnold, J.);   see also United States Automobile Ass'n v. Marburg, 46 Conn.App. 99, 102 n.3, 698 A.2d 919 (1997).  “An action for declaratory judgment is a special proceeding ․” (Internal quotation marks omitted.)  Wilson v. Kelley, 224 Conn. 110, 121, 617 A.2d 433 (1992).  “The purpose of a declaratory judgment action is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties.”  (Internal quotation marks omitted.)  St. Paul Fire & Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380–81, 577 A.2d 1093 (1990), aff'd, 222 Conn. 823, 610 A.2d 1281 (1992).  “There is no question that a declaratory judgment is a suitable vehicle to test the rights and liabilities under an insurance policy.”  Id., 380.  “Declaratory judgment actions have been used to determine whether an insurer has a duty to defend and indemnify its insured.”   See Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 571 A.2d 107 (1990).   Allstate Ins. Co. v. Ward, Superior Court, judicial district of New Britain, Docket No. CV–12–6016460–S (March 21, 2013, Swienton, J.).

In support of its motion for summary judgment, Western World argues that it has no duty to defend or indemnify Urmila Thakur, individually, or as trustee of the Shiva Mahal Land Trust, because:  (1) she does not meet the definition of “insured” under the policies;  (2) coverage is barred by the policies' classification limitation and designated premises endorsements;  (3) the underlying complaint does not allege an occurrence resulting in bodily injury or property damage;  and (4) the policies' personal and advertising injury coverage is not applicable because the allegations of the underlying complaints do not arise out of the insured's apartment rental business and are barred by other policy provisions, such as the intentional or criminal acts exclusion.   As to Deowraj Buddhu and Sunita Buddhu, Western World argues that it has no duty to defend the underlying lawsuits on their behalf because they are not insureds under the policies at issue.³

The defendants counter that Western World improperly relies on extraneous facts and evidence in support of its motion, and that Urmila Thakur and Sunita Buddhu are “insured” under the relevant insurance policies based upon the language in the underlying lawsuits and the insurance policies.⁴  In addition, the defendants contend that there is a genuine issue of material fact as to whether they sustained personal and advertising injury arising out of the “ownership, maintenance, or use” of the property at 958–60 Broad Street, Hartford, Connecticut.   Finally, the defendants contend that the underlying complaints sufficiently allege a personal and advertising injury to trigger coverage B of the relevant insurance policies.

I

The Insurance Policies

The applicable Western World insurance policies are identified as NPP1181129 (2008–2009), NPP1237003 (2009–2010), NPP1287945 (2010–2011), and NPP1321368 (2011–2012).   Policies NPP1181129 (2008–2009) and NPP1237003 (2009–2010) are identical in all relevant parts, and provide the following coverage information.   Section II of the policies is entitled “Who is an Insured,” and states, “1. If you are designated in the Declarations as:  An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.”   The insurance policies list “Urmila S. Thakur, trustee Shiva Mahal Land Trust” as the “named insured,” under the “Schedule of Forms and Endorsements.”

The insurance policies also include the following classification limitation endorsement:  “This insurance applies only to the classification(s) is/are shown on the Declarations page, the Extension of Declarations or an endorsement of this policy.   If any classification(s) is/are not shown, they are not insured hereunder.”   The “Commercial Liability Coverage Part Declarations” lists the “classification” as “Apartment Buildings.”   Furthermore, the designated premises or project endorsement modifies the insurance by limiting coverage to premises or project.   The limitation specifies:  “This insurance applies only to ‘bodily injury,’ ‘property damage,’ ‘personal and advertising injury’ and medical expenses arising out of:  1. The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises;  or 2. The project shown in the Schedule.”   Premises are listed as, “958–960 Broad Street, Hartford, CT 06106.”   The project is limited to “property owner.”

The policies also include a commercial general liability coverage form, which provides for both “Bodily Injury and Property Damage Liability,” under Coverage A,⁵ and “Personal and Advertising Injury Liability,” under Coverage B. In their memorandum, the defendants concede that the damages alleged in the underlying complaints do not constitute property damage or bodily injury, and that, therefore, the claims giving rise to these damages are not covered under “Coverage A” of the relevant Western World policies.⁶  Thus, the only remaining issue before the court is whether the insurance policies in question provide coverage to any of the defendants under “Coverage B” of those policies.

Coverage B falls under Section I, is entitled “Personal and Advertising Injury Liability,” and provides, in part:  “1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damage because of ‘personal and advertising injury’ to which the insurance applies.   We will have the right and duty to defend the insured against any ‘suit’ seeking damages.   However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘personal and advertising injury’ to which the insurance does not apply ․ b. This insurance applies to ‘personal and advertising injury’ caused by an offence arising out of your business but only if the offence was committed in the ‘coverage territory’ during the policy period.”   Section V, labeled “Definitions,” states:  “ '14.   Personal and advertising injury,' means injury, including consequential ‘bodily injury,’ arising out of one or more of the following offenses ․ e. Oral or written publication of material that violates a person's right of privacy.”

Coverage B also provides, in part:  “2. Exclusions.   This insurance does not apply to. a. ‘Personal and advertising injury’:  (1) Caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’;  (2) Arising out of oral or written publication of material, if done by or at the direction of the injured with knowledge of its falsity ․ (4) Arising out of criminal act committed by or at the direction of any insured.”

Policies NPP1287945 (2010–2011) and NPP1321368 (2011–2012) are virtually identical in most relevant respects to the policies described in the preceding paragraphs, except that in addition to the individual insurance coverage, trusts and trustees are included under the definition of “insured.”   Under these policies, Section II, entitled, “Who is an Insured,” states:  “1. If you are designated in the Declarations as ․ e. A trust, you are an insured.   Your trustees are also insureds, but only with respect to their duties as trustees.”   Although there are other minor differences in the language of the policies, these differences are not material and do not affect the analysis.

II

Duty to Defend

“[W]ith respect to an insurer's duty to defend a claim brought against the insured, [t]he question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the] complaint with the terms of the insurance policy ․

“The following legal principles inform our analysis.   It is the function of the court to construe the provisions of the contract of insurance ․ The [i]nterpretation of an insurance policy ․ involves a determination of the intent of the parties as expressed by the language of the policy ․ [including] what coverage the ․ [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy ․ [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy ․ [giving the] words ․ [of the policy] their natural and ordinary meaning ․ [and construing] any ambiguity in the terms ․ in favor of the insured ․ This rule of construction that favors the insured in case of ambiguity applies only when the terms are, without violence, susceptible of two [equally reasonable] interpretations ․ The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.

“With respect to an insurer's duty to defend a claim brought against the insured, an insurer's duty to defend ․ is determined by reference to the allegations contained in the [underlying] complaint ․ Moreover, [t]he 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 a cause of action within the coverage of the policy, the insurer must defend ․ On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend ․ Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage ․

“Despite the breadth of this approach, [our Supreme Court has] recognized the necessary limits of this rule, as we will not predicate the duty to defend on a reading of the complaint that is ․ conceivable but tortured and unreasonable ․ Thus, although an insurer is not excused from its duty to defend merely because the underlying complaint does not specify the connection between the stated cause of action and the policy coverage ․ the insurer has a duty to defend only if the underlying complaint reasonably alleges an injury that is covered by the policy.”  (Citations omitted;  internal quotation marks omitted.)  Misiti, LLC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 154–56, 61 A.3d 485 (2013).

Although Western World urges the court to look at extrinsic evidence and facts, such as the affidavit of Urmila Thakur, which would indicate that it has no duty to defend, the court finds that the issue of whether Western World has a duty to defend should be resolved only by comparing the allegations in the complaint with the terms of the insurance policy.   See Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 154;  see also Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005) (“[I]t is well established ․ that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered” [Internal quotation marks omitted] ).   In fact, “the duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend.”  (Emphasis added.)  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 146.

A

Urmila Thakur1. Urmila Thakur is Not an “Insured”

“The defendant's duty to defend ․ is not invoked unless the party named in the complaint falls within the definition of ‘insured’ as included in the policy.”  Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co, supra, 466.   In the present case, all of the policies insure Urmila Thakur individually “only with respect to the conduct of a business of which [she is] the sole owner.” ⁷  With regard to the business conduct, the underlying complaints allege that the underlying defendants invaded their privacy and misrepresented that they ran a legitimate debt elimination program.   Based on the allegations of the underlying complaints, the only business that Urmila Thakur may have been the “sole owner” of is the Shiva Mahal Land Trust.   Specifically, the underlying complaints allege:  “At all times relevant herein, Defendant The Vishnu Mahal Land Trust, a/k/a The Shiva Mahal Land Trust, (collectively, the ‘Mahal Land Trust’) was an entity organized by Defendant Urmila Thakur, Defendant Sunita Buddhu and/or Defendant Deowraj Buddh[u] and operates out of 257 Middletown Avenue, Wethersfield, CT 06109 and/or 958–960 Broad Street, Hartford, CT.” ⁸ (Emphasis added.)   The use of the “and/or” language indicates that the trust may have been created by anyone or more of the listed parties.   Accordingly, based on this language, Urmila Thakur is alleged to be a creator of the “Mahal Land Trust,” and reading the allegations broadly, may be the sole owner of that trust.

Nevertheless, the underlying complaints specifically refer to conduct and business activities relating to the running of a debt elimination program and not to conduct relating to the business of the Shiva Mahal Land Trust, the entity named in the insurance policies at issue.   Further, the trust identified in the complaint (Mahal Land Trust), is not the trust named in the insurance policies.   By the same token, Urmila Thakur is not covered individually under the policies.   She is only an insured as her conduct relates to the business of the trust of which she is the sole owner.

Two of the policies, NPP1287945 (2010–2011) and NPP1321368 (2011–2012), insure Urmila Thakur as trustee to the trust, “but only with respect to [her] duties as [trustee].”   In the present case, even though the underlying complaints sue Urmila Thakur, individually, and as trustee of the Shiva Mahal Land Trust, the claims raised against Urmila Thakur are not based upon her alleged misconduct in the discharge of her duties as trustee of the trust.   Rather, the complaints focus on allegations of negligent misrepresentation and invasion of privacy by the underlying defendants, in connection with their debt reduction program.

2. Classification Limitation Endorsement and Designated Premises Endorsement

Western World argues that summary judgment should be granted against Urmila Thakur on the ground that policy coverage is barred because of the classification limitation endorsement and/or the designated premises endorsement contained in the policies.   First, the designated premises or project endorsement modifies the insurance by limiting coverage to premises or project.   The limitation specifies:  “This insurance applies only to ‘bodily injury,’ ‘property damage,’ ‘personal and advertising injury’ and medical expenses arising out of:  1. The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises;  or 2. The project shown in the Schedule.”   Premises are listed as, “958–960 Broad Street, Hartford, CT 06106.”   The project is limited to “property owner.”

The issue is whether the claims set forth in the underlying complaints establish that the alleged personal and advertising injuries “arise out of” the ownership, maintenance or use of the premises on 958–960 Broad Street, Hartford, CT 06106.   The Supreme Court case cited by Western World, Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 146, is instructive.   In Misiti, LLC, the plaintiff, Misiti, LLC (Misiti), was an additional insured on a commercial general liability insurance policy (policy), which was issued to Misiti's tenant, Church Hill Tavern, LLC (tavern), by the defendant, Travelers Property Casualty Company of America (Travelers).  “Misiti owned commercial property at 1, 3 and 5 Glen Road in Sandy Hook, which included commercial buildings and a riverside park area.   Misiti leased the first floor of the building at 1 Glen Road to the tavern and certain rights common to Misiti's other tenants, including the use of a nearby parking lot.   The tavern carried a commercial general liability insurance policy issued by Travelers, which included an endorsement that named Misiti as an additional insured, ‘but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tavern] ․’ “ (Footnotes omitted.)  Id., 149–50.   The underlying plaintiff claimed that she had been injured after falling on Misiti's premises.  Id., 150.   The underlying plaintiff did not sue the tavern, nor did she mention the tavern in her complaint.  Id. Travelers denied a defense to Misiti in the underlying action.  Id., 151.

Misiti asked the Supreme Court to find that Travelers had a duty to defend Misiti in the underlying action.   Misiti argued that “because its premises as a whole were described in the underlying complaint as the properties of 1, 3 and 5 Glen Road and the surrounding area, the tavern's 1 Glen Road location, which falls within the description of Misiti's premises, itself establishes a sufficient possibility that [the underlying plaintiff's] injuries arose out of the use of the leased premises.”  Id., 165.   After considering the parties' arguments, the court concluded:  “[W]e will not require an insurer to extend coverage on the basis of a conceivable but tortured and unreasonable interpretation of an underlying complaint, and we are persuaded that the inferences that Misiti would have us make in order to reach its proposed interpretation of that complaint fall within this category ․ The imposition of a duty to defend in the present case would require more than the bald reference to the addresses of three commercial properties that Misiti leased to its tenants, one of which was the tavern, coupled with an assertion that the purpose of such property was to invite persons such as [the underlying plaintiff] onto the premises to conduct business.   Accordingly, we reject Misiti's claim that the underlying complaint drew a sufficient causal connection between [the underlying plaintiff's] injuries and the use of the tavern.”  (Citation omitted;  internal quotation marks omitted.)  Id., 167–68.

In the present case, the only reference to the 958–960 Broad Street premises in the underlying complaints is that “[a]t all times relevant herein, Defendant The Vishnu Mahal Land Trust, a/k/a The Shiva Mahal Land Trust, (collectively, the ‘Mahal Land Trust’) was an entity organized by Defendant Urmila Thakur, Defendant Sunita Buddhu and/or Defendant Deowraj Buddh[u] and operates out of 257 Middletown Avenue, Wethersfield, CT 06109 and/or 958–960 Broad Street, Hartford, CT.” In their memorandum, the defendants also argue that “Sunita Buddhu admitted in sworn responses to interrogatories to have met at least one of the defendants at 958–960 Broad Street.”  (Emphasis in original.)   The interrogatory in question as posed to Sunita Buddhu stated:  “13.   Please indicate whether you have ever (a) met with [the underlying plaintiff] Gwendolyn McKinsey at the property located at 958–960 Broad Street, Hartford, CT;  and, (b) if so, please indicate if you ever exchanged money with her at the locations.   Answer:  (a) Yes. (b) N/A.” (Defendants' Exhibit 4, Sunita Buddhu's Responses to Interrogatories and Requests for Production in Illescas v. Vishnu Mahal Land Trust, ¶ 13.)   The defendants also argue and cite to evidence that at least two of the underlying defendants at one point resided at 958–960 Broad Street.

The defendants do not offer any evidence in support of the somewhat ambiguous allegation of the underlying complaints that suggests the tortious misconduct at issue may have taken place at 958–960 Broad Street, the insured premises.⁹  This suggestion is not supported by any evidence, and therefore, by itself, does not establish the necessary causal link between the injury alleged in the underlying complaints and the use and operation of 958–960 Broad Street as an apartment building.   The Connecticut courts do “not require an insurer to extend coverage on the basis of a conceivable but tortured and unreasonable interpretation of an underlying complaint.”  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 167–68.

The interrogatory response by Sunita Buddhu does not serve as evidence that there is a causal link between the alleged tortious conduct and the operation of the apartment building at the insured premises.   Instead, the interrogatory response indicates only that Sunita Buddhu met one of the defendants at 958–960 Broad Street at some point in time.   There is no indication that money was exchanged at that meeting.   Nor does the interrogatory response serve as evidence that there was tortious conduct by Sunita Buddhu which in any way related to the purpose or location of the meeting.   Further, the defendants' argument that Deowraj Buddhu and Sunita Buddhu at one point resided at 958–960 Broad Street is immaterial because it does not demonstrate a causal link between the alleged injury claimed by the defendants in their underlying complaints and the operation of the 958–960 Broad Street as an apartment building.   For these reasons, there is no evidence to support the defendants' claim that there is an issue of material fact as to whether they sustained a personal and advertising injury arising out of the “ownership, maintenance or use” of 958–960 Broad Street.

In addition, any personal and advertising injury must be “caused by an offense arising out of [insured's] business.”   The classification limitation in all of the relevant policies list the 958–960 Broad Street premises as an “apartment building.”   Based on this classification, as identified in the policies, the business that is covered by the insurance in question is an “apartment building” located at 958–960 Broad Street.   In the present case, even if the debt elimination program was operated on the insured premises, there is no supporting evidence, or even an allegation, that any personal or advertising injury arose out of the operation of the 958–960 Broad Street property as an apartment building.   Thus, there is no coverage for the defendants' claims under the insurance policies.

3. Defending Under a Reservation of Rights Does Not Trigger a Duty to Defend

In their objection to the motion for summary judgment, the defendants' assert that Western World's conduct in providing Urmila Thakur a defense operates as an acknowledgment of coverage under the policies.   This argument is without merit.   As previously noted, the defense in each case was provided under a reservation of rights.¹⁰  “It is generally held that if an insurer conducts an investigation or defense under a notice of reservation of rights, it will not thereby be estopped to set up any policy defenses that may be available to it ․ If, however, the insurer conducts itself in a manner inconsistent with the reservation of rights or makes assurances to the insured that the claim will be taken care of, the reservation of rights may be waived.”  (Citation omitted.)  West Haven v. Hartford Ins. Co., 221 Conn. 149, 165, 602 A.2d 988 (1992).

The defendants have made no argument, nor proffered any evidence, that Western World conducted itself in a manner inconsistent with its reservation of rights or made assurances that Urmila Thakur's claim would be otherwise taken care of.   Thus, because Western World has definitely communicated that its defense on behalf of Urmila Thakur was being provided under a reservation of rights, and it has not abrogated that claim, Western World has the right to assert any available policy defenses to coverage.

B

Sunita Buddhu1. Sunita Buddhu is Not an Insured

As to Sunita Buddhu, none of the policies in question list her as an insured, in either her individual capacity, or as a trustee.   The only named insured is “Urmila Thakur, Trustee Shiva Mahal Land Trust.”   Nevertheless, the policies indicate:  “If you are designated in the Declarations as:  An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.”  (Emphasis added.)   There is no dispute that Sunita Buddhu is the daughter, and therefore, not the spouse of Urmila Thakur.¹¹  Further, the defendants' objection does not argue that Sunita Buddhu is insured as an individual under the policies.   Thus, Sunita Buddhu is not insured as an individual.

As discussed previously, the policies identified as NPP1287945 (2010–2011) and NPP 1321368 (2011–2012), contain an additional subparagraph which states in relevant part:  “If you are designated in the Declarations as ․ A trust, you are an insured.   Your trustees are also insureds, but only with respect to their duties as trustees.”  (Plaintiff's Exhibit 6, p. 149.)   Although the underlying complaints list Sunita Buddhu as trustee, Sunita Buddhu is not named as trustee in any of the applicable insurance contracts.   However, the defendants produced evidence in the form of Sunita Buddhu's sworn interrogatory responses that she was a trustee of the Shiva Mahal Land Trust from “2005 to the present.”  (Defendants' Exhibit 4, Sunita Buddhu's Responses to Interrogatories and Requests for Production in Illescas v. Vishnu Mahal Land Trust, ¶ 21.)   The affidavit of Urmila Thakur, submitted by Western World, contradicts Sunita Buddhu, stating that she has never been a trustee.¹²  Although mother and daughter contradict each other on this issue, whether Sunita Buddhu was or is a trustee of the Shiva Mahal Land Trust is not material to a determination of the issues before the court.   For reasons previously stated, there is no evidence that any of the misconduct alleged in the underlying complaints relates to the business of that trust, which is the ownership and operation of an apartment building at 958–960 Broad Street Hartford, the only insured premises.   As such, Sunita Buddhu is not an “insured” under the relevant policies, either as an individual or trustee.

2. Classification Limitation Endorsement and Designated Premises Endorsement

As previously addressed in the preceding section II(A) of this memorandum, relating to coverage for Urmila Thakur, coverage is barred as to Sunita Buddhu by the policies' classification limitation and designated premises endorsements.

3. Criminal Acts Exclusion

“[A]n insurer cannot reject an insured's claim ․ merely because the allegations of the injured party's complaint make possible, or even probable, the applicability of a policy exclusion.   Unless the allegations of the underlying complaint fall so clearly within a policy exclusion as to eliminate any possibility of coverage, the insurer must provide a defense to its insured.”  (Internal quotation marks omitted.)  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 154–56.  “To avoid the duty [to defend] ․ the insurer must demonstrate that the allegations in the underlying complaint are solely and entirely within specific and unambiguous exclusions from the policy's coverage.”  (Citation omitted;  internal quotation marks omitted.)  East Hartford v. Connecticut Interlocal Risk Management Agency, Superior Court, judicial district of Hartford, Docket No. CV–94–0534696–S (August 27, 1997, Koletsky, J.) (20 Conn L. Rptr. 374, 377).   “Although the burden to prove that a claim falls within a policy's coverage is on the insured, the insurer has the burden of proving that the claim for which coverage is sought falls within a policy's exclusion.”  Lancia v. State Nat. Ins. Co., 134 Conn.App. 682, 41 A.3d 308, cert. denied, 305 Conn. 904, 44 A.3d 181 (2012).

In interpreting a criminal acts exclusion clause, the Supreme Court ruled that “ ‘criminal acts,’ ․ are acts for which the insured was or could be convicted under applicable criminal law.”  Allstate Ins. Co. v. Barron, 269 Conn. 394, 417, 848 A.2d 1165 (2004).   The Superior Court interpreted the intentional conduct and criminal acts exclusion even more broadly, and held that “[t]he exclusion is triggered by the commission of a criminal act inflicting foreseeable harm, whether or not the insured is or legally can be charged or convicted therefor.”  (Internal quotation marks omitted.)   Allstate Ins. Co. v. Linarte, Superior Court, judicial district of New Britain, Docket No. CV–05–4005150–S (May 24, 2007, Shapiro, J.) (43 Conn. L. Rptr. 664, 669).  “Although a conviction may or may not be conclusive evidence of the underlying facts, it is to be accorded preclusive effect with respect to the insured's commission of the crime.”  (Internal quotation marks omitted.)   Allstate Ins. Co. v. Simansky, 45 Conn.Sup. 623, 626, 738 A.2d 231 (1998) (23 Conn. L. Rptr. 307).

Coverage B of the relevant policies provides:  “2. Exclusions.   This insurance does not apply to. a. ‘Personal and advertising injury’:  (1) Caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’;  (2) Arising out of oral or written publication of material, if done by or at the direction of the injured with knowledge of its falsity ․ (4) Arising out of criminal act committed by or at the direction of any insured.”

In the present case, it is uncontested that Sunita Buddhu has pled guilty to “Presenting a Fictitious Instrument and Aiding and Abetting, the same in violation of 18 U.S.C. § 514(a)(2) & 2.” (See Plaintiff's Exhibit 7.) The authenticity of the documents in Plaintiff's Exhibit 7 has not been challenged by the defendants and includes several documents, dated October 10, 2012, evidencing Sunita Buddhu's guilty plea and conviction for these federal crimes.¹³  In her signed stipulation submitted in connection with her guilty plea, Sunita Buddhu admits to having participated in a fraudulent debt elimination scheme with Deowraj Buddhu.   Thus, based on the criminal acts exclusion language alone, Sunita Buddhu's tortious conduct is excluded from the coverage of the Western World insurance policies at issue.

C

Deowraj Buddhu

In their opposition to the motion for summary judgment, the defendants do not argue that Deowraj Buddhu is insured under any of the policies, in either his individual capacity or as a trustee.   Nor do the policies in question list him as an insured, in either his individual capacity or as trustee.   Since it is undisputed that he too was convicted of criminal conduct relating to the debt elimination scheme, Western World owes him neither a duty to defend nor a duty to indemnify him in connection with the claims asserted in the underlying complaints.

III

Duty to Indemnify

“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.”  (Internal quotation marks omitted.)  DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).  “[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ․” (Internal quotation marks omitted.)  Alvarez v. New Haven Register, Inc., 249 Conn. 709, 721, 735 A.2d 306 (1999).  “[T]he duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy.”  (Emphasis in original.)  DaCruz v. State Farm Fire & Casualty Co., supra, 268 Conn. 688.

In the present case, as discussed previously in this memorandum, there is no duty on the part of Western World to defend Urmila Thakur, Sunita Buddhu or Deowraj Buddhu, in any capacity because they are not insured under any of the relevant policies;  there is no coverage available due to the designated premises endorsements and classification limitations on the declarations pages of the policies at issue.   Thus, Western World does not have a duty to indemnify Urmila Thakur, Sunita Buddhu or Deowraj Buddhu in any capacity because, “where there is no duty to defend, there is no duty to indemnify ․” (Internal quotation marks omitted.)  Id.

CONCLUSION

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

Peck, J.

FOOTNOTES

FN1. The underlying lawsuits are contained in Plaintiff's Exhibit 1 and are as follows:  McKinsey v. Buddhu, Docket No. HHD CV–12–6034152–S, Campos v. Vishnu Mahal Land Trust, Docket No. HHD CV12–6035305–S, Banguera v. Buddhu, Docket No. HHD CV–12–6034155–S, Torres v. Buddhu, Docket No. HHD CV–12–5036196–S, Arias v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035041–S, Suarez v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035304–S, Illescas v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035302–S, Amendano v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035303–S..  FN1. The underlying lawsuits are contained in Plaintiff's Exhibit 1 and are as follows:  McKinsey v. Buddhu, Docket No. HHD CV–12–6034152–S, Campos v. Vishnu Mahal Land Trust, Docket No. HHD CV12–6035305–S, Banguera v. Buddhu, Docket No. HHD CV–12–6034155–S, Torres v. Buddhu, Docket No. HHD CV–12–5036196–S, Arias v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035041–S, Suarez v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035304–S, Illescas v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035302–S, Amendano v. Vishnu Mahal Land Trust, Docket No. HHD CV–12–6035303–S.

FN2. Only those defendants in the present lawsuit who are also the plaintiffs in eight underlying lawsuits have filed an objection to the instant motion for summary judgment.   Specifically, Manuel Suarez, Monserrate Torres, Heddy Arcos–Torres, Gwendolyn McKinsey, Ana Suarez, Cesar Suarez, Narcisa Rodas, Ana Arias, Guillermina Banguera, Gonzalo Illescas, Janice Barbosa, Jhon Kleber Amendano, Ariosto Lopez Campos, Merci Lopez, Vincente Lopez, and Cesar Solis, have objected to the motion for summary judgment.   Manuel Suarez was removed.   The other defendants, Urmila Thakur (individually and as trustee), Shiva Mahal Land Trust, Deowraj Buddhu, and Sunita Buddhu, did not file an objection or response.   For convenience (and hopefully clarity), the defendants who filed the objection are referred to in this memorandum collectively as “the defendants.”.  FN2. Only those defendants in the present lawsuit who are also the plaintiffs in eight underlying lawsuits have filed an objection to the instant motion for summary judgment.   Specifically, Manuel Suarez, Monserrate Torres, Heddy Arcos–Torres, Gwendolyn McKinsey, Ana Suarez, Cesar Suarez, Narcisa Rodas, Ana Arias, Guillermina Banguera, Gonzalo Illescas, Janice Barbosa, Jhon Kleber Amendano, Ariosto Lopez Campos, Merci Lopez, Vincente Lopez, and Cesar Solis, have objected to the motion for summary judgment.   Manuel Suarez was removed.   The other defendants, Urmila Thakur (individually and as trustee), Shiva Mahal Land Trust, Deowraj Buddhu, and Sunita Buddhu, did not file an objection or response.   For convenience (and hopefully clarity), the defendants who filed the objection are referred to in this memorandum collectively as “the defendants.”

FN3. Western World also argues that the underlying complaints do not fall under the policies' Section I Coverage B “personal and advertising injury,” because they do not sufficiently plead a cause of action for invasion of privacy.   Western World essentially contends that the underlying complaints fail to properly plead “publication,” or communication to a third party.   The invasion of privacy counts in four of the eight underlying complaints allege that “the defendants have collectively and/or individually negligently and/or intentionally disseminated the plaintiffs' confidential personal information to third-parties without plaintiffs consent.”   The other four complaints allege that the defendants “may have disseminated” the plaintiffs' private and confidential information.  (Emphasis added.)   In any case, when viewed broadly, these allegations support the element of publication of private information to a third person that may constitute a violation of the underlying plaintiffs'/defendants' right to privacy.   The fact that an underlying plaintiff's information may have been intentionally disseminated to third parties is also sufficient to satisfy the publication requirement.   See West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir.1990) (“[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured” [emphasis in original, internal quotation marks omitted] ).   The court also rejects Western World's contention (stated without citation), that the invasion of privacy claims fail because the underlying complaints do not allege that the personal information alleged was viewed by persons who were not authorized to view it.   Thus, the underlying complaints have sufficiently alleged the tort of invasion of privacy claim..  FN3. Western World also argues that the underlying complaints do not fall under the policies' Section I Coverage B “personal and advertising injury,” because they do not sufficiently plead a cause of action for invasion of privacy.   Western World essentially contends that the underlying complaints fail to properly plead “publication,” or communication to a third party.   The invasion of privacy counts in four of the eight underlying complaints allege that “the defendants have collectively and/or individually negligently and/or intentionally disseminated the plaintiffs' confidential personal information to third-parties without plaintiffs consent.”   The other four complaints allege that the defendants “may have disseminated” the plaintiffs' private and confidential information.  (Emphasis added.)   In any case, when viewed broadly, these allegations support the element of publication of private information to a third person that may constitute a violation of the underlying plaintiffs'/defendants' right to privacy.   The fact that an underlying plaintiff's information may have been intentionally disseminated to third parties is also sufficient to satisfy the publication requirement.   See West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir.1990) (“[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured” [emphasis in original, internal quotation marks omitted] ).   The court also rejects Western World's contention (stated without citation), that the invasion of privacy claims fail because the underlying complaints do not allege that the personal information alleged was viewed by persons who were not authorized to view it.   Thus, the underlying complaints have sufficiently alleged the tort of invasion of privacy claim.

FN4. In their memorandum, the defendants do not argue that Deowraj Buddhu is insured under the policy..  FN4. In their memorandum, the defendants do not argue that Deowraj Buddhu is insured under the policy.

FN5. Coverage A, under Section I of the applicable policies, is entitled:  “Bodily Injury and Property Damage Liability.”   Coverage A provides, in part:  “1. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which the insurance applies.   We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.   However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which the insurance does not apply.”.  FN5. Coverage A, under Section I of the applicable policies, is entitled:  “Bodily Injury and Property Damage Liability.”   Coverage A provides, in part:  “1. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which the insurance applies.   We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.   However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which the insurance does not apply.”

FN6. Section F of the defendants' objection memorandum states:  “In support of [its] Motion for Summary Judgment, Western World asserts that the Underlying Plaintiffs have not alleged ‘bodily injury’ or ‘property damage’ caused by an occurrence in the Underlying Complaints.”   This point is not in dispute and is conceded ․ (Defendants' Objection, p. 25)..  FN6. Section F of the defendants' objection memorandum states:  “In support of [its] Motion for Summary Judgment, Western World asserts that the Underlying Plaintiffs have not alleged ‘bodily injury’ or ‘property damage’ caused by an occurrence in the Underlying Complaints.”   This point is not in dispute and is conceded ․ (Defendants' Objection, p. 25).

FN7. As previously described, Section II of the relevant policies is entitled “Who is an Insured,” and states, “1. If you are designated in the Declarations as:  An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.”   The policies list Urmila Thakur as the only named insured..  FN7. As previously described, Section II of the relevant policies is entitled “Who is an Insured,” and states, “1. If you are designated in the Declarations as:  An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.”   The policies list Urmila Thakur as the only named insured.

FN8. All of the defendants in the underlying complaints are thereafter referred to collectively as “the defendants.”.  FN8. All of the defendants in the underlying complaints are thereafter referred to collectively as “the defendants.”

FN9. The suggestion appears in the following allegation contained in all eight underlying complaints:  “At all times relevant herein, Defendant The Vishnu Mahal Land Trust, a/k/a The Shiva Mahal Land Trust, (collectively, the ‘Mahal Land Trust’) was an entity organized by Defendant Urmila Thakur, Defendant Sunita Buddhu and/or Defendant Deowraj Buddh[u] and operates out of 257 Middletown Avenue, Wethersfield, CT 06109 and/or 958–960 Broad Street, Hartford, CT.” (Emphasis added.).  FN9. The suggestion appears in the following allegation contained in all eight underlying complaints:  “At all times relevant herein, Defendant The Vishnu Mahal Land Trust, a/k/a The Shiva Mahal Land Trust, (collectively, the ‘Mahal Land Trust’) was an entity organized by Defendant Urmila Thakur, Defendant Sunita Buddhu and/or Defendant Deowraj Buddh[u] and operates out of 257 Middletown Avenue, Wethersfield, CT 06109 and/or 958–960 Broad Street, Hartford, CT.” (Emphasis added.)

FN10. The revised declaratory judgment complaint states:  “Notwithstanding its position that the Policies do not afford coverage to Urmila Thakur ․ Western World is defending Urmila Thakur both in her individual capacity and as Trustee Shiva Mahal Land Trust, as well as Shiva Mahal Land Trust, in the Underlying Lawsuits under a complete reservation of rights.”   (Emphasis added.)  (Revised declaratory judgment complaint, ¶ 58)..  FN10. The revised declaratory judgment complaint states:  “Notwithstanding its position that the Policies do not afford coverage to Urmila Thakur ․ Western World is defending Urmila Thakur both in her individual capacity and as Trustee Shiva Mahal Land Trust, as well as Shiva Mahal Land Trust, in the Underlying Lawsuits under a complete reservation of rights.”   (Emphasis added.)  (Revised declaratory judgment complaint, ¶ 58).

FN11. The affidavit of Urmila Thakur states that Sunita Buddhu is her daughter..  FN11. The affidavit of Urmila Thakur states that Sunita Buddhu is her daughter.

FN12. The interrogatories are dated February 28, 2013.   Urmila Thakur's affidavit directly contradicts Sunita Buddhu's testimony, and states that her “daughter, Sunita Buddhu, has never been Trustee of the Shiva Mahal Land Trust.”  (Plaintiff's Exhibit 1, Affidavit of Urmila Thakur, ¶ 6.)   Nevertheless, “the duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend.”  (Emphasis added.)  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 146.   Thus, only Sunita Buddhu's testimony may be considered in concluding whether there is a duty to defend..  FN12. The interrogatories are dated February 28, 2013.   Urmila Thakur's affidavit directly contradicts Sunita Buddhu's testimony, and states that her “daughter, Sunita Buddhu, has never been Trustee of the Shiva Mahal Land Trust.”  (Plaintiff's Exhibit 1, Affidavit of Urmila Thakur, ¶ 6.)   Nevertheless, “the duty to defend must be determined by the allegations set forth in the underlying complaint itself, with reliance on extrinsic facts being permitted only if those facts support the duty to defend.”  (Emphasis added.)  Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. 146.   Thus, only Sunita Buddhu's testimony may be considered in concluding whether there is a duty to defend.

FN13. Included in Plaintiff's Exhibit 7 are a copy of a confirmation letter from United States Attorneys' Office confirming the terms of the plea agreement, signed by the defendant Sunita Buddhu and the defendant's counsel;  a stipulation, which is incorporated into the plea agreement, signed by Sunita Buddhu, her counsel, and the Assistant United States Attorney;  a petition to enter the plea of guilty is also attached, signed by defendant Sunita Buddhu;  and finally, an order from Judge Alvin W. Thompson, United District Court Judge, which states, in part, that the defendant's plea of guilty is accepted and entered as prayed in the defendant's petition..  FN13. Included in Plaintiff's Exhibit 7 are a copy of a confirmation letter from United States Attorneys' Office confirming the terms of the plea agreement, signed by the defendant Sunita Buddhu and the defendant's counsel;  a stipulation, which is incorporated into the plea agreement, signed by Sunita Buddhu, her counsel, and the Assistant United States Attorney;  a petition to enter the plea of guilty is also attached, signed by defendant Sunita Buddhu;  and finally, an order from Judge Alvin W. Thompson, United District Court Judge, which states, in part, that the defendant's plea of guilty is accepted and entered as prayed in the defendant's petition.

Peck, A. Susan, J.