WAGNER, J., JTR.
This declaratory judgment action seeks a ruling that the plaintiff, New London County Mutual Insurance Company has no duty to defend or indemnify its insured Mary Buckley under its homeowner or personal umbrella policies against an action brought by one Jane Doe against Buckley, a state police officer and the director of the East Windsor emergency management agency for allegedly covering up alleged sexual assaults on Doe's children by Peter Waraksa, the assistant director of the agency.
The plaintiff insurance company denied coverage under both policies but provided a defense under the personal umbrella policy under a reservation of rights. Lack of coverage under the homeowners policy is not disputed.
On October 20, 2001, plaintiff filed this motion for summary judgment claiming that under the personal umbrella policy only claims for "accidental injury" were covered and that claims causing "intentional injury" or causing injury or damage because of "business activity" or "business pursuits" were excluded.
-I-
In construing the duty to defend as expressed in an insurance policy, 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. It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint and if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005). The duty to defend is notably broad, and Connecticut courts have gone so far as to say that "[i]f an allegation of the complaint falls even possibly within coverage, then the insurance company must defend the insured." Moore v. CT Page 3758 Continental Casualty Company, 252 Conn. 405, 409, 746 A.2d 1252 (2000).
If the court finds that there is a duty to defend in a particular action, the court may not address the issue as to the duty to indemnify as "[that duty] arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy." DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004). Consequently, the court must look to the allegations set forth in the Doe complaint in order to determine whether the plaintiff insurer has a duty to defend its insured.
The Doe complaint alleges that Peter Waraksa repeatedly sexually assaulted Jane Doe's three minor children from a period beginning in the summer of 2005 until late November 2005. As early as October 2001, the East Windsor police department had received numerous complaints "alleging Waraksa's commission of numerous sexual assaults, as well as possession of child pornography. Waraksa himself confirmed these allegations in September 2005 to officers of the town of East Windsor police department as well as to the defendant, when he sought help for suicidal thoughts stemming from his commission of numerous sexual assaults on minors and his possession of child pornography. During the September 2005, investigation of Waraksa's suicidal thoughts the defendant went to the home of Waraksa as "a result of a personal and working relationship with him." At this time, the defendant began to take actions that hindered the investigation of Waraksa, including but not limited to concealing evidence, and instructing Waraksa on how to respond to questioning. The Doe complaint claims damages from the defendant and the town of East Windsor under various legal theories including negligent and intentional infliction of emotional distress, sexual assault and battery of a minor, false imprisonment, negligent retention and supervision of an employee, negligence per se and civil rights violations pursuant to 42 U.S.C. § 1983.
-II-
The plaintiff argues that the allegations of the Doe complaint fall outside the scope of coverage provided under the umbrella policy because it alleges injury arising from conduct on the part of the defendant that cannot be properly described as "accidental," as the alleged sexual assaults took place with her knowledge and occurred as a result of actions she intentionally took.
The defendant argues in response that the Doe complaint is ambiguous as to the defendant's state of mind when she allegedly hindered the investigation of Waraksa and failed to report his predations to the CT Page 3759 proper authorities; also as to when Waraksa actually disclosed to the defendant that he had sexually assaulted, or was still assaulting, Doe's children, thus creating a question as to the extent of the insured's knowledge of the attacks. The defendant maintains that where the court must draw inferences from the underlying complaint regarding questions of motive, intent, and subjective feelings and reactions, as in the present case, summary judgment is inappropriate.
-III-
Our Supreme Court has stated that "[a]n accident is an unintended occurrence." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 590, 573 A.2d 699 (1990). "The term `accident' is to be . . . construed in its ordinary meaning of an unexpected happening,'" Commercial Contractors Corp. v. American Ins. Co., 152 Conn. 31, 42, 202 A.2d 498 (1964).
On the other hand, "[i]n its most common usage, `intent' involves (1) . . . a state of mind (2) about consequences of an act (or omission) and not about the act itself and (3) it extends not only to having in the mind a purpose (or desire) to bring about the given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act." American National Fire Ins. Co., v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992). "The distinguishing factor between [negligence and intentional tortious conduct] is what the negligent actor does not have in mind; either the desire to bring about the consequences that follow or the substantial certainty that they will occur." Id., 777.
Count one of the Doe complaint sets forth a cause of action for sexual assault and battery against Waraksa and also alleges that as a result of the defendant's hindrance of the police investigation into Waraksa, Doe's children were damaged. Specifically, the defendant is being accused of covering up Waraksa's assaults and for originally tasking Waraksa with forming a youth cadet program but is not personally charged with participating in any assaults on Doe's children directly.
Nor does the Doe's complaint, contain any allegations that the defendant, while acting with the purpose of hindering Waraksa's investigation, also acted with the intent or purpose that her actions would result in the continued molestation of Doe's children. The fact that the defendant intended to hinder Waraksa's investigation does not mean that she also intended her actions to result in the outcome that Waraksa's attacks on Doe's children would be allowed to continue. In the absence of an allegation ascribing such intent as to that result to the defendant, her alleged actions should not be construed as intentional or CT Page 3760 non-accidental happenings within the meaning of the personal umbrella policy.
The Doe complaint also does not establish exactly when Waraksa disclosed to the defendant that he had assaulted Doe's children. Paragraph nine of the Doe complaint alleges that the defendant was aware that Waraksa had confessed to prior sexual assaults, but there is no indication that he disclosed that such assaults were occurring at that time or were likely to continue occurring. The Doe complaint does not contain allegations specifying whether the defendant was even aware in September 2005, that Waraksa was still in contact with any children, either through the cadet program or through any other channels. Although the Doe complaint alleges that the defendant authorized Waraksa to organize a program to involve minor children in the East Windsor emergency management agency, it does not explain exactly what Waraksa's role was through this program in interacting with Doe's children, nor does it articulate details as to how the appointment led to the alleged assaults. The "intentional acts" exclusion operates to bar coverage for injury or damage caused with the insured's knowledge but would not seem to bar coverage in situations where the insured should have known the injury was occurring.
It is improper to draw inferences as to the defendant's state of mind or subjective feelings when ruling on a motion for summary judgment. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111. Since the Doe complaint is ambiguous as to the defendant's state of mind and the extent of her knowledge of Waraksa's sexual assaults on Doe's children when she committed the alleged actions, genuine issues of material fact exist with respect to the operation of the "intentional acts" or "accidental harm" limitations in the policy, which are both determinative as to the issue of the defendant's duty to defend in the instant case.
-IV-
The plaintiff further argues that even if the allegations concerning the defendant's actions set forth in the Doe complaint are viewed as accidental and unintentional three exclusions in the umbrella policy are applicable; the "business activity" exclusion, the "professional services" exclusion and the "board membership" exclusion. In particular, the plaintiff contends that the allegations in the Doe complaint arose because of the defendant's position as a police officer and director of the East Windsor emergency management agency, putting the claims squarely within the policy's exclusions.
The defendant argues that the Doe complaint is ambiguous as to the CT Page 3761 defendant's motivations for her alleged hindrance of the investigation of Waraksa, and that in order for the business pursuits, personal services, and board membership exclusions to apply, the employee must be acting in furtherance of his employer's business when committing the alleged conduct.
The policy exclusion provides an exclusion for "[i]njury or damage because of business activity . . ." "Business" is defined by the policy as "a trade, occupation, business, or profession in which you engage for gain, other than [f]arming."
Additionally, the umbrella policy excludes "[i]njury or damages arising out of the rendering or failure to render a professional service of any nature even if covered by a basic policy;" and "[a]ny injury or damage which may arise from membership on any board of directors unless that organization is either a charitable, religious, or civic nonprofit organization and chartered as such."
In interpreting a similar business pursuits exclusion, our Supreme Court has stated "[t]he determination of whether a particular activity constitutes a business pursuit is to be made by a flexible fact-specific inquiry." "Business pursuits . . . contemplates a continuous or regular activity engaged in by the insured of the purpose of earning a profit or livelihood." Pacific Indemnity Ins. Co. v. Aetna Casualty Surety Co., 240 Conn. 26, 33, 688 A.2d 319 (1997).
In Conway v. Travelers Casualty Surety Co. Of America, supra, Superior Court, Docket No., CV 99-0588119, the insured plaintiff was accused by a third party of sexual harassment in the work place, including the commission of several sexual acts with his secretary on overnight business trips and during work hours. The plaintiff sought defense and indemnification against the third-party complaint through a personal umbrella policy he carried with the defendant insurance company which denied coverage, arguing, that the cause of action against the plaintiff arose out of the business pursuits of the insured. The court disagreed with the defendant, finding the "business pursuits" exclusion inoperative because the third-party complaint did not allege that the activities of the plaintiff were tied in any way to a "profit motive," and denied its motion for summary judgment.
In the present case, the Doe complaint alleges that "[d]uring the police investigation of [Waraksa's] suicidal thoughts, [the defendant], an officer of the Connecticut State Police, was summoned to [Waraksa's] home as a result of her personal and working relationship with him." Doe complaint, ¶ 10. No facts are alleged suggesting that there was a profit CT Page 3762 motive behind the defendant's alleged actions, or that her actions were part of the scope of the employment or responsibilities as director of the emergency management program. The actual allegations fall short of the "business pursuits" exclusion test as put forward in Conway. Since the Doe complaint does not, unambiguously allege that the defendant's actions occurred because of her position as a police officer or her work as the director of East Windsor's emergency management agency, there remains a question of fact as to the application of the business exclusion. With respect to the business pursuits, board membership, and personal services exclusion in the policy, there exist genuine issues of material fact as to whether the Doe allegations fall within those policy exclusions.
Motion for summary judgment denied.
CT Page 3763