ALLSTATE INS. CO. v. BOYD, No. HHD CV 07 4028627 S (Mar. 2, 2008)

MICHAEL E. RILEY, JUDGE.

This court has been requested to render a decision based upon an arbitration submission provided by the parties. The case, Allstate Insurance Co. v. Patricia Boyd, et al, Docket Number HHD CV 07 4028627 is presently pending in the Hartford Judicial District. While the basis of the submission is a bit unusual, this court can find no basis upon which the relief requested by the parties should be refused. It appears to the court that it would serve the interests of judicial economy to grant the parties' request.

What has been submitted to the court is an insurance coverage matter. Patricia Boyd is seeking coverage for a claim brought against her based upon negligence and carelessness in her supervision of her minor son who had sexually assaulted the minor plaintiff in the underlying lawsuit while the minor son was living at premises owned and/or controlled by her. The assaults occurred at these premises. Allstate insured the premises for homeowner's coverage at the times that the assaults occurred. The parties have submitted a Stipulation of Facts, including the applicable policy as well as the Complaint and Amended Complaint from the underlying action against Ms. Boyd which Allstate is defending under a reservation of rights.

Allstate claims that there is no coverage available under its policy to Ms. Boyd based upon the following defenses;

1. That Section II of the policy, which includes coverage X, entitled "Family Liability Protection" is not applicable in the instant matter because policy exclusion #1 excludes coverage for the claim as brought against Ms. Boyd as a result of the actions of her son.

2. That Ms. Boyd's conduct constitutes a criminal act in and of itself as a violation of criminal statute § 53-21 the Risk of Injury to a Minor Statute. Consequently, exclusion #1 would eliminate any coverage because of Ms. Boyd's own intentional/criminal conduct. CT Page 3213

3. That the underlying Complaint and Amended Complaint do not allege an "occurrence" within the coverage provided by the Allstate policy.

It would appear to the court that if no coverage is found to exist under position I, then position II and III would not even need to be addressed. Those positions appear to be in the alternative should position I be decided against Allstate.

In addressing position I, to which both parties have addressed the bulk of their briefs, it is necessary to first examine the policy language. The "Family Liability Protection," coverage X at p. 21 provides the following insuring agreement;

Losses We Cover Under Coverage X:

Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.

The definitional section of the policy, at p. 2, provides the following;

"Insured person(s)" means you and, if a resident of your household:

a) any relative; and

b) any dependent person in your care

The Exclusion which is at the center of the controversy, at p. 21, provides as follows;

Losses We Do Not Cover Under Coverage X:

1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:

a) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or

CT Page 3214

b) such bodily injury or property damage is sustained by a different person than intended or reasonably expected. This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

For purposes of the coverage examination the court finds, from the submissions of the parties, that the underlying action of Ms. Boyd's son, Alfred Lafountain, constituted intentional and/or criminal acts. The defendants argue in their brief that there is no presumption of intent with regard to sexual assault by a minor and as a result there would be coverage for him under the policy. This argument is made somewhat tongue-in-cheek as the defendant goes on to argue that the real claim for coverage is as to Ms. Boyd for her negligent conduct and not with regard to the conduct of Lafountain. At oral argument however, the defendants conceded that there would be no coverage for Alfred Lafountain for his conduct. The real issue comes down to whether or not the term "an insured" as it is used in the Exclusion, extends to encompass "any insured" which, if it does, would eliminate any claim as against Ms. Boyd, even one couched in negligence if it arose as a result of an intentional or criminal act of "any insured." If the term "an insured" is deemed to be ambiguous or determined to mean "the insured" then coverage would apply. With this backdrop the problem is approached.

When a party asserts a claim that challenges the trial court's construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous . . . A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . Accordingly, an ambiguity in a contract must emanate from the language used in the contract rather than from on party's subjective perception of the term . . . When the language of a contract is ambiguous, the CT Page 3215 determination of the parties' intent is a question of fact . . .

Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 13 (2008).

Similarly, "[w]e accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract . . . Where the language is unambiguous, we must give the contract effect according to its terms . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter." (Citations omitted.) Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005). Moreover, in construing contracts, we give effect to all the language included therein, as "the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 546, 893 A.2d 389 (2006).

The policy language from the insuring agreement provides that Allstate will not cover injury which may be reasonably expected to result from the "intentional or criminal acts or omissions of an insured person." This language, "an insured person" was addressed by the Appellate Court of Connecticut in Mallozzi v. Nationwide Mutual Ins. Co., 72 Conn.App. 620, cert. denied, 262 Conn. 915 (2002). That case involved a vehicular accident wherein the policyholder's son, Mario Mallozzi, was driving a vehicle owned by his father's employer, Mallozzi Builders, Inc., at the time of the accident. Mario brought a declaratory judgment action in order to determine his rights to coverage under Natiowide's personal auto policy issued to Floria Mallozzi, his mother. Although he was defined as "an insured" under her policy, Nationwide asserted an exclusion as to coverage for him which provided that coverage did not apply "b) . . . to losses involving a motor vehicle . . . (2) owned, rented or leased by an employer of an insured." (Emphasis added.) Judge Lavery, writing for a unanimous court, stated as follows;

The plaintiff also claims ambiguity in the word "an," as used in the phrase, "[coverage] does not apply to losses involving a motor vehicle . . . CT Page 3216 owned . . . by an employer of an insured." (Emphasis added.) The plaintiff argues that "an insured" means "the insured," rather than "any insured," and that "the insured" contemplates only the particular insured who is operating the vehicle at the time of the accident, in this case the plaintiff. Therefore, he claims because it is not the plaintiff's employer that owned the truck, but that of a different insured, the exclusion is inapplicable. Again, we conclude that the phraseology used in the policy is not ambiguous.

[11] Dictionaries identify "a" and "an" as "indefinite" articles and define "indefinite" as "not defining or identifying," "not precise" or "having no fixed limit or amount." See e.g., Merriam-Webster Dictionary) 3rd Ed. 1974); *628 see also American Heritage Dictionary of the English Language (New College Ed. 1981) ("indefinite article" is one "that does not fix or immediately fix the identity of the noun modified":); see also Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 282, 545 A.2d 530(1988) ("[i]n statutory construction, unlike the definite article `the,' which particularizes the words it precedes and is a word of limitation, the indefinite article `a' has an `indefinite or generalizing force'"). Thus, as stated by the trial court, "an" means "any" and therefore, "the contract provides, clearly and unambiguously, that the exclusion extends generally to a vehicle of an employer of . . . any insured," in this case, to the truck owned by the employer of Mario Mallozzi, Sr., regardless of who was driving the truck.

[12] "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Internal quotation marks omitted.) Jack A. Halprin, Inc. v. Hermitage Ins. Co., 58 Conn.App. 598, 601, 753 A.2d 954 (2002) "We agree that the phase `an CT Page 3217 insured' clearly means `any **103 insured' and that the court properly concluded that the exclusion at issue applied."

The Mallozzi opinion was decided on October 1, 2002. The decision in Allstate v. Thuillard, 2007 WL 241165 42 Conn. L. Rptr. 660 (Conn.Super.) issued on October 12, 2007. Thuillard was a summary judgment motion in a declaratory judgment action by Allstate contending that its homeowners insurance policy did not provide coverage for a negligence claim brought against its named insureds Luis and Peggy Thuillard. The claim against them arose out of criminal conduct by Ruben Thuillard who killed his wife, Shannon Tedone, in the driveway of their residence. The very same exclusion in the instant matter was interposed by Allstate there as the basis for its determination of no coverage for Luis and Peggy Thuillard. The defendants have relied upon the decision in Thuillard for their position that the term "an insured" is ambiguous does not mean "any insured" and must, therefore be decided in their favor. While the court in Thuillard found no coverage for any of the claims made against Ruben under this exclusion it found the term "an insured person" to be ambiguous as to the negligence claim brought against Luis and Peggy Thuillard and on that basis denied summary judgment as to them. Nowhere in the opinion does the court discuss the holding in Mallozzi. Although the policies were different in Mallozzi and Thuillard the definitional sections and exclusionary language were quite similar. No attempt was made in Thuillard to distinguish Mallozzi. It was, in fact, not even mentioned. Probably because it was not argued or briefed by the parties.

The defendant attempts to distinguish Mallozzi from the instant matter, and to point to cases from other jurisdictions which finds the term "an insured" to be ambiguous. The plaintiff, by the same token, cites cases which support its position that the term is not ambiguous. The court does not find the defendant's arguments to be persuasive. The defendant further argues that "reasonable expectations" of the layperson policyholder should control and coverage be provided. While both of these arguments are well reasoned, it is the determination of this court that the holding in Mallozzi is binding here. This court is precluded from deciding otherwise to the extent that an issue raised in this matter, here the interpretation of the term "an insured," has already been addressed by an appellate court. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195 (1976). While dicta is not binding arbitration, Millman v. Paige, 55 Conn.App. 238, 242 fn4 (1999). This court finds that the definitional interpretation from Mallozzi to be central to the court's decision there and consequently not dicta. CT Page 3218

As a result of this analysis the court finds that exclusion in the Allstate policy applies to Patricia Boyd. There is no coverage for her under the policy. CT Page 3219