MESA v. Bella Fiore Company, Inc. (2016)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR JUDGMENT ON DEFAULT

The circumstances giving rise to this motion were precipitated by a suit brought in the Superior Court by Shavahna Kincade, (hereafter Kincade) against Haxhe Balidemaj, The Bella Fiore Company, Inc., and Haxhe Properties, LLC (hereafter defendants) owners or operators of Bella Fiore Restaurant and Evil Olive Café in Norwich, Connecticut.  That suit will be referred to as the “underlying suit.”  The plaintiff in this action, Mesa Underwriters Specialty Insurance Company (MUSIC) had issued a policy of insurance to the defendants.  MUSIC brought this action for declaratory judgment to have determined if there is coverage for the defendants in the underlying suit.  The issue, then, in this Motion for Judgment deals with the interpretation of the terms of that insurance policy as it relates to Kincade's claims against the defendants in the underlying suit.

A hearing on the motion was held in this court on January 12, 2016, and thereafter the plaintiff filed a Supplemental Memorandum on January 13, 2016.  At the hearing the complaint in the underlying suit and a copy of the MUSIC policy were filed as exhibits.

MUSIC wants a ruling against the defendants who have been defaulted providing that it owes no duty to defend or indemnify the defendants in this situation.  It relies on the claim that there was no “occurrence” as that term is defined in the policy giving rise to coverage.  Also it claims the benefit of a specific exclusion for “assault and battery.”

The claim of MUSIC is that there is a specific exclusion in an endorsement to the policy providing that it does not cover an injury arising out of an assault and battery.  There are eight counts in the complaint in the underlying suit and not one of them is specific as to the actual cause of the injuries alleged to have been suffered.  There are claims of poor training of employees, unsafe premises, serving alcohol to intoxicated and underage persons, increased likelihood that there would be violence on the premises, improper hiring practices and inadequate security.  A fair reading of the entire complaint, however, leads the court to the conclusion that the specific cause of the plaintiff's injury was an assault which would bring the claim under the specific exception contained in the policy.

The next claim of MUSIC is that it does not owe a duty to defend or indemnify because, it claims, there was no “occurrence” as defined by the policy.  This claim is based upon the terms contained in the Insuring Agreement section of the policy which provides in part:  This insurance applies to “bodily injury” and “property damage” only if:  (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory.”

“Occurrence” is defined in the policy as “․ an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

“Accident” is defined under our law as “an unintended occurrence.”  Hammer v. Lumbermen's Mutual Cas. Co., 214 Conn. 573 (1990).

Reading the eight counts of the complaint in the underlying suit as a whole, and taking into account the alleged injuries of Kincade, the direct causative act resulting in the injuries complained of was an assault by a third-party patron of the insured establishment.  This could not be an unintended accident and thus the defendants have no coverage for bodily injury.

Therefore, the court will enter judgment for the plaintiff agent and the defaulted defendants and declares that Mesa Underwriters Specialty Insurance Company owes no obligation to defend or indemnify Defendants for any aspect of the underlying suit or the events of December 25–26, 2012 pursuant to the terms and conditions of the insurance policy at issue.

Robert C. Leuba, J.T.R.

Leuba, Robert C., J.T.R.