REPORT AND RECOMMENDATION
E. KNOWLES, Magistrate Judge
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff was not disabled and denying Plaintiff Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), as provided under the Social Security Act ("the Act"), as amended. The case is currently pending on Plaintiff's Motion for Judgment on the Administrative Record. Docket No. 17. Defendant has filed a Motion for Judgment on the Pleadings and supporting Memorandum of Law, which the undersigned will construe as a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket Nos. 20, 21.
For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED.
I. INTRODUCTION
Plaintiff filed his application for DIB on February 7, 2006, and his application for SSI on February 10, 2006, alleging that he had been disabled since August 15, 2005, due to back pain. Docket No. 13, Attachment ("TR"), TR 68-72, 73-79. Plaintiff's applications were denied both initially (TR 50, 52) and upon reconsideration (TR 54, 56). Plaintiff subsequently requested (TR 67) and received (TR 17-20) a hearing. Plaintiff's hearing was conducted on October 4, 2007, by Administrative Law Judge ("ALJ") John P. Garner. TR 29-49. Plaintiff and vocational expert ("VE"), Kenneth N. Anchor, appeared and testified. Id.
On December 7, 2007, the ALJ issued a decision unfavorable to Plaintiff, finding that Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 7-16. Specifically, the ALJ made the following findings of fact:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010.
2. The claimant has not engaged in substantial gainful activity since August 15, 2005, the alleged onset date (
20 CFR 404.1520(b),
404.1571
et seq., 416.920(b) and 416.971
et seq.).
3. The claimant has the following severe impairments: obesity; degenerative disc disease (
20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (
20 CFR 404.1520(d),
404.1525,
404.1526,
416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work.
6. The claimant is capable of performing past relevant work as assembler, machinist, saw operator, and picker/packer. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (
20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from August 15, 2005 through the date of this decision (
20 CFR 404.1520(f) and 416.920(f)).
TR 12-16.
On December 20, 2007, Plaintiff timely filed a request for review of the hearing decision. TR 5. On October 24, 2008, the Appeals Council issued a letter declining to review the case (TR 1-4), thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. §§ 405(g) and 1383(c)(3). If the Commissioner's findings are supported by substantial evidence, based upon the record as a whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.
III. CONCLUSIONS OF LAW A. Standards of Review
This Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine (1) whether substantial evidence exists in the record to support the Commissioner's decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence" means "such relevant evidence as a reasonable mind would accept as adequate to support the conclusion." Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). "Substantial evidence" has been further quantified as "more than a mere scintilla of evidence, but less than a preponderance." Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner's findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the Administrative Law Judge must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the Commissioner did not consider the record as a whole, however, the Commissioner's conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985) ( citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) ( citing Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff's condition; (2) diagnosis and opinions of medical experts; (3) subjective evidence of Plaintiff's condition; and (4) Plaintiff's age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by proving his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "Substantial gainful activity" not only includes previous work performed by Plaintiff, but also, considering Plaintiff's age, education, and work experience, any other relevant work that exists in the national economy in significant numbers regardless of whether such work exists in the immediate area in which Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant's case is considered under a five-step sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which significantly limits his or her ability to work (a "severe" impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the "listed" impairments
or its equivalent. If a listing is met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level impairments, it must be determined whether the claimant can return to the job he or she previously held in light of his or her residual functional capacity (e.g., what the claimant can still do despite his or her limitations). By showing a medical condition that prevents him or her from returning to such past relevant work, the claimant establishes a
prima facie case of disability.
(5) Once the claimant establishes a
prima facie case of disability, the burden shifts to the Commissioner to establish the claimant's ability to work by proving the existence of a significant number of jobs in the national economy which the claimant could perform, given his or her age, experience, education, and residual functional capacity.
20 C.F.R. §§ 404.1520,
416.920 (footnote added).
See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6
th Cir. 1990).
The Commissioner's burden at the fifth step of the evaluation process can be satisfied by relying on the medical-vocational guidelines, otherwise known as "the grid," but only if the claimant is not significantly limited by a nonexertional impairment, and then only when the claimant's characteristics identically match the characteristics of the applicable grid rule. Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In such cases where the grid does not direct a conclusion as to the claimant's disability, the Commissioner must rebut the claimant's prima facie case by coming forward with particularized proof of the claimant's individual vocational qualifications to perform specific jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary, 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages four and five above, the Commissioner is required to consider the combined effect of all the claimant's impairments; mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. § 423(d)(2)(B).
C. Plaintiff's Statement Of Errors
Plaintiff contends that his case must be remanded because he has new and material evidence that must be considered. Docket No. 17. Specifically, Plaintiff underwent an MRI of his lumbar spine that shows degenerative damage, including multiple concentric disc bulges with facet osteoarthritis, one concentric disc bulge with moderately severe biforaminal stenosis, and bilateral L5 pars defect. Id. Plaintiff maintains that the disc bulges and degeneration seen on his latest MRI were "completely new" and therefore could not have been presented as evidence before the ALJ. Id. Plaintiff also argues that Dr. Julie Stinson-Reynolds completed a Residual Functional Capacity assessment that supports his case that was not in existence at the time of his hearing. Id. Accordingly, Plaintiff maintains that, pursuant to sentence six of 42 U.S.C. § 405(g), the Commissioner's decision should be remanded. Id.
Sentence six of § 405(g) states as follows:
The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good case for the failure to incorporate such evidence into the record in a prior proceeding. . . .
42 U.S.C. §§ 405(g),
1383(c)(3).
"It is well established that the party seeking remand bears the burden of showing that a remand is proper under Section 405." Sizemore v. Secretary, 865 F.2d 709, 711 (6th Cir. 1988) (quoting Oliver v. Secretary, 804 F.2d 964, 966 (6th Cir. 1986)). A Sentence Six remand does not require the court to rule on the correctness of the administrative determination. Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994). "Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding." Id. (quoting Melkonyan v. Sullivan, 111 S. Ct. 2157, 2163). A Sentence Six remand is thus considered a pre-judgment remand. Id.
1. New and Material Evidence
As has been noted, Plaintiff contends that his case must be remanded pursuant to Sentence Six of 42 U.S.C. § 405(g) because his February 2008 MRI and the Residual Functional Capacity report completed by Dr. Julie Stinson-Reynolds constitute new and material evidence that must be considered. Docket No. 17.
Remand for consideration of new and material evidence is appropriate only when the claimant shows that: (1) new material evidence is available; and (2) there is good cause for the failure to incorporate such evidence into the prior proceeding. Willis v. Secretary, 727 F.2d 551, 554 (6th Cir. 1984).
"In order for the claimant to satisfy his burden of proof as to materiality, he must demonstrate, 1) that the new evidence pertains to the claimant's condition prior to the date of the ALJ's hearing decision (Oliver v. Secretary, 804 F.2d 964, 966 (6th Cir. 1984); and 2) that there was a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence" ( Sizemore v. Secretary, 865 F.2d 709, 711 (6th Cir. 1988) (citing Carroll v. Califano, 619 F.2d 1157, 1162 (6th Cir. 1980))).
a. February 2008 MRI
Plaintiff contends that his February 2008 MRI results are material, because they did not exist at the time the ALJ rendered his decision, as he could not obtain the MRI until after he received TennCare. Docket No. 17. Plaintiff further contends that the degeneration seen in the February 2008 MRI relates directly to the back problems that he asserted as the basis for his disability claims. Id.
Defendant responds that Plaintiff's February 2008 MRI was completed more than two months after the relevant date of the ALJ's decision and adds little to what was already in the record. Docket No. 21.
Plaintiff's February 2008 MRI revealed as follows:
L1-2: Minimal concentric dis bulge with facet osteoarthritis. No central canal or foraminal narrowing.
L2-3: Concentric disc bulge and facet osteoarthritis. No central canal or foraminal narrowing.
L3-4: Concentric disc bulge and mild facet osteoarthritis. Mild biforaminal stenosis worse on the left. Mild central canal narrowing.
L4-5: No significant disc pathology. Mild facet osteoarthritis. Minimal biforaminal stenosis without significant central canal narrowing.
L5-S1: Bilateral L5 pars defects with grade I anterolisthesis of L5 over S1. Concentric disc bulge with moderately severe biforaminal stenosis. No central canal narrowing.
Retroperitonoal soft tissues appear within normal limits.
IMPRESSION:
1. Degenerative changes of the lumbar spine as detailed above. Findings are most severe at L5-S1 where there are bilateral L5 pars defects, grade I anterolisthesis of L5 over S1, and moderately severe biforaminal stenosis.
TR 28.
On June 6, 2005, Plaintiff saw Dr. Kevin J. Bonner, of Baptist Hospital, for a work-related back injury that occurred on June 3, 2005. TR 161-163. Dr. Bonner conducted an x-ray examination of Plaintiff's lumbar spine, which revealed an 8 mm anterolisthesis of L5 on S1 with pars defects. TR 163. Dr. Bonner noted that the pars defects may have been old, and he observed that "[n]o definite acute fracture or other abnormality" could be seen. Id.
Plaintiff also saw Dr. Daniel S. Burrus on May 17, 2000, for a work-related back injury. Dr. Burrus opined that Plaintiff had a normal gait and no significant loss of range of motion. Plaintiff received an x-ray examination, the results of which were normal, except for spondylolisthesis at L5-S1. TR. 184. Dr. Burrus saw Plaintiff for a follow-up examination on June 14, 2000. He noted that Plaintiff reported some improvement in his pain with physical therapy and recommended that Plaintiff continue physical therapy treatments. TR 181-182.
Plaintiff also saw Dr. Robert E. Clendenin, III, of Tennessee Orthopaedic Alliance, for the work-related back injury that occurred on June 3, 2005. TR 14, 181. Dr. Clendenin noted that Plaintiff indicated that physical therapy made his back pain worse. TR 181. Upon physical examination, Plaintiff had "superficial tenderness over the lumbar spine." TR 14, 181. Dr. Clendenin diagnosed Plaintiff with acute lumbar strain, ordered an MRI, and prescribed medication. TR 181.
Plaintiff denied that he suffered from any previous back injuries. TR 181. Dr. Clendenin's office records indicated, however, that Plaintiff saw Dr. Burrus in 2000 for a work-related back injury. Id.
On July 1, 2005, Plaintiff saw Dr. Clendenin for an MRI of his lumbar spine. TR 180. The MRI revealed that T12-L1 through L4-5 were normal. Id. Dr. Clendenin noted that L5-S1 had "[m]ild anterolisthesis . . ., bilateral pars articularis defects, degenerative changes of the posterior elements, broad based disc bulge with right central annular fissuring, [and] advanced narrowing of both neural foramina, [the] right greater than [the] left." TR 14, 180. In an August 2005 follow-up, Dr. Clendenin observed that the July 1, 2005 MRI "was rather unremarkable, but there [was] some abnormality at L5-S1." TR 179. Dr. Clendenin referred Plaintiff for surgical evaluation since he alleged that his back pain was not improving. TR 14, 179.
Plaintiff saw Dr. Burrus on August 14, 2005, for a surgical consultation. TR 14, 176-178. Dr. Burrus noted that there was "a great deal of local tenderness in his lumbar spine with light palpation." TR 176. After reviewing Plaintiff's July 1st MRI, Dr. Burrus opined that the only abnormality was a Grade 1 spondylolisthesis at L5-S1, which was not related to Plaintiff's back pain. TR 14, 176. Dr. Burrus did not find Plaintiff to be a candidate for surgical intervention and suggested that he return to regular work duty. TR 14, 176-177.
Plaintiff visited Dr. Walter W. Wheelhouse on December 19, 2005, for an Independent Medical Evaluation. TR 15, 186-189. Dr. Wheelhouse reviewed Plaintiff's previous medical records, including the July 1st MRI, and conducted an independent physical examination. Id. Upon physical examination, Dr. Wheelhouse found "[t]enderness and muscle spasm and guarding in the lumbosacral spine greatest in the midline at L1-2 and L5-S1." TR 188. Dr. Wheelhouse diagnosed Plaintiff with "[m]echanical low back pain and spondylolisthesis L5-S1 with posterior disc protrusion at L5-S1 and radiculopathy." TR 15, 188.
On March 27, 2006, Plaintiff saw consultative examiner Dr. Bruce Davis. TR 15, 190. Dr. Davis opined that Plaintiff suffered from midline lower back tenderness, pain in slowly changing positions, painful gait maneuvers, and normal reflexes with no atrophy. Id.
As can be seen, all of the physicians' examinations revealed that Plaintiff suffered from back pain and some degree of abnormality at L5-S1. TR 14-15, 176, 179, 181, 188, 190. Moreover, comparing the radiologists' impressions from Plaintiff's MRIs, the radiologists identified Plaintiff's Grade 1 anterolisthesis of L5-S1, degenerative changes and narrowing or stenosis in their findings. See TR 28, 180. Accordingly, the ALJ considered these findings.
Although the February 2008 MRI revealed some abnormalities with L1-2 through L4-5 that were not revealed in earlier MRIs, a worsening of symptoms after the ALJ hearing is not an appropriate cause for remand. Sizemore v. Secretary, 865 F.2d 709 (6th Cir. 1988). The Sizemore court reasoned that:
Evidence which reflected the applicant's aggravated or deteriorated condition is not relevant because such evidence does not demonstrate the point in time that the disability itself began. Reviewing courts have declined to remand disability claims for reevaluation in light of medical evidence of a deteriorated condition. . . . If in fact the claimant's condition had seriously degenerated, the appropriate remedy would have been to initiate a new claim for benefits as of the date that the condition aggravated to the point of constituting a disabling impairment.
Id. at 712;
see also Wyatt v. Secretary, 974 F.2d 680, 685 (6
th Cir. 1992) ("Evidence of a subsequent deterioration or change in condition after the administrative hearing is deemed immaterial.").
b. Dr. Stinson-Reynolds' RFC Assessment
Plaintiff contends that a RFC assessment completed on March 7, 2008, by Dr. Julie Stinson-Reynolds constitutes new and material evidence, such that remand is warranted. Docket No. 17.
In her March 7th RFC assessement, Dr. Stinson-Reynolds opined that Plaintiff could sit, stand, and walk for two to three hours total in an eight-hour day, frequently lift up to eight pounds, occasionally lift up to nineteen pounds, and never lift anything over twenty pounds. TR 26. She further opined that Plaintiff could frequently carry up to nine pounds, occasionally carry up to nineteen pounds, never carry over twenty pounds, and never crawl or climb. TR 27. Dr. Stinson-Reynolds also opined that Plaintiff's pain would moderately-severely to severely restrict his ability to function. Id.
Dr. Stinson-Reynolds based her medical evaluation on Plaintiff's February 2008 MRI, the results of which are discussed supra. Docket. No. 17. Dr. Stinson-Reynolds' opinion is, however, inconsistent with the other objective medical evidence of Record, and is unaccompanied by objective findings. Dr. Stinson Reynolds' RFC assessment is further inconsistent with exam findings from Plaintiff's treating physicians, and with Plaintiff's reported daily activities.
The Record demonstrates that Plaintiff's treating and examining physicians found that Plaintiff had mild degenerative changes at L5-S1, a normal gait, no significant range of motion loss, negative straight leg raises, and full motor strength. TR 163, 173, 177, 181, 184, 188, 190. Plaintiff was repeatedly diagnosed with lumbar strain. TR 173, 181, 184. Plaintiff used Tylenol and Ibuprofen to relieve his pain. TR 187. Plaintiff's MRIs showed Grade 1 anterolisthesis of L5-S1 and some degenerative changes. TR 163, 177, 179. Plaintiff was deemed not to be a candidate for surgical intervention. TR 177.
Moreover, the ALJ presented, inter alia, the State Agency physicians' opined limitations and abilities of Plaintiff to the VE at the hearing. TR 46-47. The VE testified that, considering the proffered limitations and abilities, Plaintiff would be able to return to his past relevant work. Id.
Additionally, Plaintiff reported grocery shopping, looking after children, driving, caring for himself, attending college classes, studying, working on the computer, applying for jobs, reading, and spending time with family and friends. TR 34-38.
The record is replete with doctors' evaluations, medical assessments, test results, and the like, all of which constitute "substantial evidence" to support the conclusion reached.
As explained above, the ALJ's decision must be supported by "substantial evidence." "Substantial evidence" means "such relevant evidence as a reasonable mind would accept as adequate to support the conclusion" ( Her, 203 F.3d at 389 ( citing Richardson, 402 U.S. at 401)), and has been further quantified as "more than a mere scintilla of evidence, but less than a preponderance" ( Bell, 105 F.3d at 245 ( citing Consolidated Edison Co., 305 U.S. at 229)).
Even if the February 2008 MRI and Dr. Stinson-Reynolds' RFC report had been part of the record before the ALJ, "substantial evidence" supports the ALJ's findings and inferences. The ALJ's decision demonstrates that he carefully considered the testimony of both Plaintiff and the VE, observed Plaintiff during his hearing, assessed the medical records, and reached a reasoned decision. Additionally, the Appeals Council reviewed the February 2008 MRI and Dr. Stinson-Reynolds' RFC report, as well as the record as a whole, and expressly determined that the information contained in the MRI and RFC report did not warrant changing the ALJ's decision. See TR 4. Thus, there is no "reasonable probability that the Secretary would have reached a different disposition of the disability claim" if the February 2008 MRI and Dr. Stinson-Reynolds' RFC report had been part of the record before the ALJ.
Moreover, Plaintiff has not established "good cause" for failing to submit evidence of the February 2008 MRI and Dr. Stinson-Reynolds' RFC report to the ALJ during the hearing. Plaintiff argues that the new evidence did not exist at the ALJ hearing because Plaintiff lacked medical insurance to pay for the medical examinations. Docket No. 17. "[I]n order to `show good cause,' the [plaintiff] must give a valid reason for failing to obtain evidence prior to the hearing." Cranfield v. Commissioner, 79 Fed. Appx. 852, 859 (6th Cir. 2003) (quoting Willis v. Secretary, 727 F.2d at 554).
The ALJ rendered his unfavorable decision against Plaintiff on December 7, 2007. TR 7-17. Plaintiff claimed to have been awarded TennCare medical insurance in December 2007, around the same time as the ALJ's decision. Docket No. 17. Since Plaintiff was expecting to receive insurance to pay for the new MRI around the same time as the ALJ hearing, he could have petitioned for the record to remain open, for a reasonable time, until he could produce the new MRI and Dr. Stinson-Reynolds' report. Willis, 727 F.2d at 554 (noting that plaintiff's counsel could have sought "to have the record remain open until such time as other evidence could be made a part of the record"). Plaintiff could have also petitioned for a continuance of the hearing to allow more time to produce the new medical evidence. See Cranfield, 79 Fed. Appx. at 859 (rejecting plaintiff's good cause argument because she could have sought a continuance if she needed more time to produce her medical records). Plaintiff, unfortunately, did not pursue either of these avenues.
Plaintiff has failed to demonstrate either that the new medical evidence was material or that there was good cause for his failure to present the new evidence at the administrative hearing. Accordingly, remand pursuant to Sentence Six of 42 U.S.C. § 405(g) is not warranted.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days after service of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have fourteen (14) days after service of any objections filed to this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of service of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985), reh'g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
hink I've stated earlier I have a loud voice and I have a colorful language, but not intentionally abusing anyone verbally. Q. There is a difference between having a loud voice and abusing someone, you would agree with that, right? A. I would imagine so yes. . . . Q. Have you ever ridiculed [Mrs. Vecsey]? A. I probably have. Q. Did you ever do it in front of other people? A. Not that I can think of any specific incident. Q. Did you do ever do it front of your daughters? A. If I did they were probably around. Q. Did you ever call her names, malicious names? A. If you give me an example I could say yes or no. Q. You mentioned there is a lot of cursing. Did you ever call her by a name that is a curse word that is an expletive like one that begins with a B for example? A. Oh, probably. (
Id. at 403:11-404:17.)
Mr. and Mrs. Vecsey and Kaelin testified about the July 14th incident, and all of the Vecseys testified about the relationship between Mr. and Mrs. Vecsey. Mrs. Vecsey acknowledged at trial that at the hospital she spoke with a social worker and told the social worker that the July 14th incident "was the first instance of physical abuse" and that she had testified in deposition "that the statement that this was an incident of physical abuse was a true statement." ( Id. at 529:12-530:22.) At trial, she unconvincingly backtracked, claiming that she had reconsidered "the definition of physical abuse," and that her statement to the social worker was true only insofar as "physical abuse [means] that something physical hit my eye." ( Id. 530:13-22.) She also testified that their relationship was marked with verbal hostility. Acknowledging that she had filed for divorce after the Vecseys had unsuccessfully "tr[ied] to mend [their] marriage," she testified as follows: Q. Well, let me ask you a question. If this was simply an accident, what did you need to mend? A. My husband and I had troubles in our marriage. We were working on that. Q. And the troubles you had in your marriage were the history of verbal abuse? A. We argued. [Mr. Vecsey] is a yeller. I would yell back. We argued, yes. Q. Did he ever call you names? A. I suppose, yes in an — an argument, sure. Q. Did he ever swear at you? A. Yes he has. Q. Did he call you by [a] derogatory [expletive] that begins with a B on occasion? A. I'm sure he has. Q. How did that make you feel? A. How does it make anybody feel when they're called names? Q. It's degrading? A. I work in an elementary school I deal with it all the time kids calling kids names it happens. . . . Q. Why were you self medicating with alcohol? A. As I said to you, my husband and I had a difficult marriage. Q. Would you characterize it as [an] abusive marriage? A. I've learned better than to use that word abusive without specifically stating what I mean. So I would like. . . . So I would like to do that now. When I say abusive I mean we were arguing verbally abusive yes. We were very vocal verbal people. When we had an argument it was loud and we[] yelled and we said things that weren't nice to each other. Q. And he called you names? A. I probably called him names, too. ( Id. at 538:23-539:18, 541:24-542:15.) In contrast to Mr. Vecsey's testimony, Mrs. Vecsey stated that when Mr. Vecsey returned from Marissa's doctor's office, he was angry, not simply frustrated: Q. And what happened when he returned home from Marissa's doctor's? A. He was angry. Q. Did he yell? A. Yes. Yes he did. Q. Did he seem enraged? A. He seemed — he was just like he always is when he's angry and how is he when he's angry. [Mr. Vecsey] is a yeller. Q. He's a yeller? A. Yes he's a yeller. Q. And a name caller? A. When he's yelling, yeah. Q. And he swears? A. Yeah. Q. And how did that make you feel? A. I was angry, too, so we were angry with each other. . . . Q. Well, do you recall any of the subject matter of the argument on the afternoon of July 14, 2006? A. Yes. I remember him being angry that I was drunk and couldn't take our daughter to her doctor's appointment. I remember that he was angry that he had to leave work. I'm sure that we discussed other things, I don't specifically remember what they are. . . . Q. Where did the argument begin? What portion of the house? A. I'm not exactly certain. When [Mr. Vecsey] and I argue we tend to just move around and, you know, we're talking and yelling and, you know, moving around. Q. Were you trying to get away from him? A. No, it's just how we are. That's just our pattern when we argue. We don't sit across the table from each other and discuss what disturbs us about each other. Q. That's not a calm debate? A. No it's not. . . . Q. Do you recall any specific words he said to you during the argument [on July 14, 2006]? Q. While it was taking place in the bedroom? A. You know, there was just a lot of name calling kind of thing. The usual. Q. And swearing? A. Yeah. . . . Q. Do you recall at some point [Mr. Vecsey] turning and throwing an object in your direction? A. No, I don't. Q. You didn't see it actually? A. I didn't, no. Q. And is that because you weren't looking in his direction when he threw the object? A. What I recall at that particular moment was I was planning to walk into the bathroom, I was turning to walk into the bathroom, I believe [Mr. Vecsey] was turning to leave the room because, you know, it was go to hell, fuck you, whatever it was that was said and that's what I remember, and then I remember something striking me. ( Id. at 548:18-556:10.) In response to questions about her use of the term "abuse" with the social worker at the hospital, Mrs. Vecsey testified: Q. But you did tell the . . . the social worker this was the first incident of physical abuse? A. I believe I stated to you that at that time I did not know what the correct word — what the correct terminology would be to use. Q. For purposes of insurance? A. No for purposes of people understanding what I was saying. Throughout this entire episode of my life I have said nothing other than my husband never intended to hurt me, that this was an accident, that . . . he never physically abused me ever, ever. Q. Didn't you know from your work as a special ed teacher what abuse was? A. I deal with autistic children and children with Down's syndrome. No, I — no. Q. You don't ever see children of abusive households in the course of your work? A. Well do you know what as matter of fact I do. Sometimes I see verbal abuse which is why I felt comfortable to use that term and not have it be construed as physical abuse. To me, when you say verbal abuse that's arguing. ( Id. at 580:21-581:21.) Both Marissa and Kaelin Vecsey testified that arguments were a common occurrence between their parents. ( Id. at 596:15-597:3, 636:25-637:13.) In response to the question whether Mr. Vecsey was "ever verbally abusive towards [her]," Marissa testified that they "would get into arguments, yes." ( Id. at 597:11-13.)
II. Conclusions of Law
A. Summary
Although Safeco advances a number of theories for why Mr. Vecsey's liability in the Vecsey Personal-Injury Action is not covered by either the Homeowners Policy or the Umbrella Policy, the argument relevant to the Court's decision is its argument that coverage for Mrs. Vecsey's injuries "is excluded under the Homeowner and Umbrella [P]olicy exclusions for bodily injury and personal injury arising out of physical or mental abuse." (Pl.'s Trial Mem. at 24; see id. at 24-27.)
The Court will assume without deciding that Mrs. Vecsey's were caused in the manner the Vecseys claimed, i.e., that Mrs. Vecsey's eye was hit by the carrot thrown by Mr. Vecsey. It will further assume without deciding that, absent an applicable exception, the injuries would fall within coverage as injuries caused by an "occurrence." However, based on the trial evidence and reasonable inferences to be drawn therefrom, the Court concludes that these injuries fall within the physical-or-mental-abuse exclusions in both the Homeowners Policy and Umbrella Policy. Because this conclusion entitles Safeco to judgment in its favor on all counts, the Court will not make any additional factual findings or conclusions on Safeco's other theories.
Two expert witnesses testified regarding Mrs. Vecsey's injuries and their opinions about the injuries' cause. Dr. Klett, an ophthalmologist with an ocular plastics subspeciality focusing on eyelid and orbital surgery and reconstructive surgery, was in 2006 a Yale Medical School eye department faculty member. (Trial Tr. at 431:3-432:15.) Dr. Klett treated Mrs. Vecsey at Yale-New Haven Hospital after she had initially been seen by one of the residents at Bridgeport Hospital. ( Id. at 436:3-15.) He opined that the carrot could have caused Ms. Vecsey's injuries: "the cause of the injury as it was described by Ms. Vecsey is certainly consistent with the injuries that she sustained." ( Id. at 446:5-7.) Charles Edward Bain, a consultant for Biodynamic Research Corporation who was formerly a practicing medical doctor with certifications in emergency medicine, family medicine, and traffic accident reconstruction, testified that while a practicing physician he saw "hundreds" of patients with eye injuries. ( Id. at 226:3-228:5.) Dr. Bain did not treat or speak with Mrs. Vecsey, but from her medical records and photographs of her taken after the July 14th incident and through her medical treatment, he opined that "[Mrs.] Vecsey sustained two injuries to her eye, one was the socket injury including the globe rupture and the fractures and the other was the bruising around the eye," and that it "was not the piece of carrot that did this." ( Id. at 242:1-4.)
B. Principles of Law
The Connecticut Supreme Court has recently restated the principles of construction applicable to insurance coverage disputes, which govern the Court's interpretation of the Homeowners Policy and Umbrella Policy at issue in this case:
Construction of a contract of insurance presents a question of law for the court. . . . An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract. In accordance with those principles, the determinative question is the intent of the parties, that is, what coverage the insured expected to receive and what the insurer was to provide, as disclosed by the provisions of the policy. If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. Under those circumstances, the policy is to be given effect according to its terms. When interpreting an insurance policy, [the Court] must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.
In determining whether the terms of an insurance policy are clear and unambiguous, a court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms. As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.
Nat'l Grange Mut. Ins. Co. v. Santaniello, 290 Conn. 81, 88-89 (2009) (ellipses and alterations in
Santaniello omitted) (quoting
Zulick v. Patrons Mut. Ins. Co., 287 Conn. 367, 372-73 (2008) (quoting
Conn. Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5-6 (2008));
see also Israel v. State Farm Mut. Auto. Ins. Co., 259 Conn. 503, 508-09 (2002) (reciting similar
standards, explaining that rule requiring resolution of ambiguity in favor of insured is a "canon[] commonly styled
contra proferentem," and observing that that canon "is more rigorously applied in the context of insurance contracts than in other contracts").
C. The "Abuse" Exclusion
1. Defining "Abuse"
Although both policies contain exclusions for injuries arising out of physical or mental abuse, without definitions, and even though there exist "multiple definitions of those words contained in the dictionary," these facts do not render the terms ambiguous. See Cmty. Action for Greater Middlesex Cnty., Inc. v. Am. Alliance Ins. Co., 254 Conn. 387, 401 (2000) ("The fact that a word may have several definitions does not necessarily render it ambiguous.").
In this case, the Vecseys urge two readings of the term "abuse" that, in their view, show that Mr. Vecsey's conduct falls outside the abuse exclusion. They assert that if either is a reasonable reading of the term "abuse," then notwithstanding any other reasonable definition, the term "abuse" would be ambiguous, and thus subject to the canon of contra proferentem requiring construction of the term in favor of coverage. First, the Vecseys argue that the term can reasonably be read to include an element of intent — that is, that an act is not abuse unless the actor intended to cause some sort of harm (whether or not the harm intended was the harm actually caused). Second, they argue that the term "abuse" can reasonably be read to refer only to a pattern of conduct. The Court finds neither argument persuasive and holds that "abuse" is unambiguous as set forth below.
Mr. Vecsey's and Mrs. Vecsey's trial memoranda are identical and contain the same argument regarding the abuse exclusion. The Court will therefore cite them together as "Defs.' Trial Mem." The issue of whether the terms "abuse" or "physical abuse" are ambiguous was also addressed during summations, during which counsel for Mr. and Mrs. Vecsey made similar arguments.
Defendants argue that because Safeco's Rule 30(b)(6) witness testified in his deposition that it was "fair to say" that "the term physical abuse connotes an intentional act" (Stutts Dep., Defs.' Exs. 20 21, at 38:12-14), this admission controls the clause's meaning. Because this Court now holds that the term "abuse" is not ambiguous, Defendants may not use this parol evidence to "vary or distort" that unambiguous meaning. Heyman Assoc. v. Ins. Co. of State of Pa., 231 Conn. 756, 779 (1995) (unambiguity of a contractual term "necessarily dictates our rejection" of party's attempt to introduce parol evidence on that term).
As Defendants correctly point out, there are no Connecticut Supreme Court cases defining the non-sexual application of the term "abuse" in the context of an insurance policy. There are, however, cases that construe the term in other contexts, as well as lower state-court cases applying the term as it appears in an insurance policy exclusion, enabling the Court to "carefully predict" how the state's highest court would rule on the issues presented by this case.
In Community Action for Greater Middlesex County, Inc., the plaintiff agency that "provides a preschool training program," sued its insurer for breach of contract after the insurer declined defense or indemnification for the plaintiff when it was sued by the parents of a six-year-old girl who alleged that while their daughter was enrolled in the plaintiff's program, "she was sexually molested and sexually abused by three boys who were in her class" when "the three boys had `grabbed and fondled' [her] vagina." The insurer "rel[ied] on the abuse or molestation exclusion contained in the insurance policy." 254 Conn. at 389-91. Rejecting the argument that "the exclusion is ambiguous because the policy does not define the words `abuse' and `molestation'" and because there are "multiple definitions of those words contained in the dictionary," the Connecticut Supreme Court held:
The fact that a word may have several definitions does not necessarily render it ambiguous. The policy exclusion exempts the defendant from liability for "the actual or threatened abuse or molestation by anyone of any person." Whatever other conduct that broad language may include within its purview, it certainly includes unwanted contact of a sexual nature.
Id. at 401 (ellipsis omitted); see also id. at 401-02 (noting that "[o]ther courts also have concluded that a policy exclusion for abuse or molestation is unambiguous," citing other sexual-abuse cases, and observing "[i]n fact, the plaintiff has not identified any case, and we are aware of none, in which a policy exclusion for abuse or molestation has been deemed ambiguous. We conclude, therefore, that the language of the plaintiff's policy excluding abuse and molestation from coverage is clear and unambiguous.").
Because this Court, sitting in diversity, is faced with questions of state law that have not been resolved by the Connecticut Supreme Court, this Court must "`carefully predict how the state's highest court would resolve the uncertainties'" of state law relevant to the matter before it. To do so, the Court "`give[s] the fullest weight to pronouncements of the state's highest court . . . while giving proper regard to relevant rulings of the state's lower courts.'" See, e.g., Runner v. New York Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009) (quoting The Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir. 2005)).
a. "Abuse" Does Not Require Intent to Harm, Requires More Than Mere Fortuity, and Involves Acts that Are Inappropriate "Uses" of Another Person
In light of the separate and distinct intentional-acts-or-injuries exclusion in each policy that excludes coverage where the "loss was expected or intended by the insured" and not merely foreseen by the insured, see Vermont Mut. Ins. Co. v. Walukiewicz, 290 Conn. 582, 597 (2009), construing the exclusion for "physical or mental abuse" to include an implicit intent-to-harm requirement would render it redundant. See Merrimack Mut. Ins. Co. v. Ramsey, 117 Conn. App. 769, 772-73 (2009) (reading "implicit intentionality requirement" into physical-abuse exclusion "is plainly unreasonable" because clause contains no language "provid[ing] that a consideration of the abuser's intent is required. In fact, the policy contains a separate exclusion that applies specifically to intentional acts."), cert. denied, 294 Conn. 920 (2009). A reflection of how the term "abuse" is understood "from the perspective of a reasonable layperson in the position of the purchaser of the policy," see Santaniello, 290 Conn. at 99 (quoting, in parenthetical, Ceci v. Nat'l Indem. Co., 225 Conn. 165, 168-69 (1993)), is Mrs. Vecsey's testimony, when backtracking from her statements to the hospital social worker, that she did not understand the term abuse to require any intent to harm.
Walukiewicz addressed an exclusion from coverage for injury or damage "[w]hich is expected or intended by the `insured.'" 290 Conn. at 586. While the language of that exclusion differs from the Umbrella Policy, which is an exclusion for "[a]n insured who commits or directs an act with the intent to cause a loss," the holding in Walukiewicz — that the term "intent" in the exclusion means that the exclusion "is triggered when the insured subjectively expects or intends that bodily injury will occur, and not merely when an ordinary, reasonable person would be able to foresee injury occurring as a result of his acts," id. at 597 — applies to the intentional-act-or-injury exclusions at issue in this case.
See also Cmty. Action for Greater Middlesex Cnty., Inc., 254 Conn. at 400, 403 (interpreting exclusion for "actual or threatened abuse or molestation" and holding that "[t]here is nothing in the language of the exclusion to indicate that the alleged abuse or molestation must be sexually motivated or calculated to arouse the person or persons involved in the offending conduct; the boys' nonconsensual grabbing and fondling of Poe fall within the plain meaning of the words `abuse' and `molestation' irrespective of the boys' subjective state of mind."); Covenant Ins. Co. v. Sloat, 34 Conn. L. Rptr. 687, No. 385786, 2003 WL 21299384, *10 (Conn. Super. Ct. May 23, 2003) (describing exclusion for "physical or mental abuse" as "preclud[ing] coverage for an entire class of risks arising out of specified conduct, and . . . not turn[ing] on the intent of the insured"); see also Nautilus Ins. Co. v. Our Camp. Inc., 136 F. App'x 134, 138 n. 2 (10th Cir. 2005) ("the common definitions of "abuse" and "molestation," do not require an element of intent" (citing Cmty. Action for Greater Middlesex County, Inc.)); Erie Ins. Exchange v. First United Methodist Church, 690 F. Supp. 2d 410, 414 (W.D.N.C. 2010) ("other courts that have addressed the issue of whether these definitions include an element of intent, in the context of children harmed by other children, have found that it does not"); Saunders ex rel. Wright v. Sperry, 228 Wis.2d 511, 597 N.W.2d 774 (Table), 1999 WL 272540, *2 (Wis. App. Ct. May 6, 1999) (concluding that "the policy's abuse exclusion" is not "limited to intentional acts"); Am. Fam. Mut. Ins. Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1095, 700 N.E.2d 777, 778-79 (Ill. App. Ct. 1998) (rejecting argument that "the term `abuse' is inherently ambiguous" and holding that "[abuse] exclusion" contains "no intent requirement").
Webster's III Dictionary defines the verb "abuse" to mean (1) "[t]o use improperly: misuse," (2) "[t]o harm or injure by maltreatment," (3) [t]o rape or molest," or (4) [t]o assail with insults: revile." Webster's III Dictionary 4 (3d ed. 2005). It defines the noun "abuse" as (1) "[i]mproper use: misuse," (2) "[p]hysical maltreatment," or (3) "[c]oarse or insulting language." Id. The Oxford English Dictionary defines the noun "abuse," in pertinent part, to be both "[w]rong or improper use, misuse, misapplication, perversion," and "[a] bad or improper usage (i.e. a use which has become chronic), a corrupt practice." Id. Finally, Black's Law Dictionary defines the noun "abuse" to mean both "[a] departure from legal or reasonable use; misuse" and "[p]hysical or mental maltreatment, often resulting in mental, emotional, sexual, or physical injury." Black's Law Dictionary 10 (9th ed. 2009). These interrelated dictionary definitions of the noun and verb "abuse" indicate that the term "abuse" is defined by reference to an act's relationship to, and deviation from, some baseline measure of the scope of what conduct is appropriate.
As noted above, the Connecticut Supreme Court has held that the word `abuse' is not ambiguous notwithstanding multiple dictionary definitions. Cmty. Action for Greater Middlesex Cnty., Inc., 254 Conn. at 401-02. See also S.C. Farm Bureau Mut. Ins. Co. v. Oates, 356 S.C. 378, 383, 588 S.E.2d 643, 646 (S.C. App. Ct. 2003) (noting that term "abuse" was not ambiguous, and holding that "the common meaning of `abuse' in conjunction with the other language of the [insurance policy]" could be determined by definitions found in Black's Law Dictionary and American Heritage Dictionary, which are substantively identical to definitions relied on by this Court); Sperry, 1999 WL 272540 at *1-*2 (rejecting argument "that the term `physical or mental abuse of a person' is ambiguous because reasonable persons could understand it to include a wide range of negligent acts or to be limited to intentional acts," holding that term is not ambiguous, and defining "abuse" by reference to Webster's dictionary's definition ("physically harmful treatment") and listed synonym ("maltreatment"), and holding that "any ordinary, reasonable person would consider shaking an infant hard enough to cause hemotomas, hemorrhaging and a broken bone . . . constitute[s] maltreatment, or abuse").
Bolstering the Court's conclusion that "abuse" is a "use" that falls below — that is, stands "away from" — an appropriate use is the prefix "ab" in the term "abuse," which carries the meaning of "position away from," see Oxford English Dictionary (defining "ab-").
This definition is reinforced as the common thread among the myriad types of "abuse" typically encountered in the current vernacular. Substance abuse, abuse of trust, sexual abuse, domestic abuse, abuse of authority, to name a few, all involve a deviation in behavior or "use" from what is expected or appropriate. Each involves a perversive or improper use, be it of a tangible or intangible item or a relationship. "Abuse" of another person stems from this same universality; improper treatment by interacting with or "using" the other in a way that deviates from a baseline measure of what is appropriate.
Further reinforcing the definition of abuse as maltreatment that deviates from a baseline standard of appropriateness are terms in the various dictionary and case-law definitions that connote insult and mistreatment. Webster's III uses "maltreatment" and "insult" to define "abuse," Webster's III Dictionary 4 (3d ed. 2005), and Black's emphasizes "[p]hysical or mental maltreatment," Black's Law Dictionary 10 (9th ed. 2009). Connecticut courts have used the terms "abuse" and "mistreatment" interchangeably in other contexts. See, e.g., State v. Health Care Emp. Union, Dist. 1199, 271 Conn. 127, 137-38 (2004) (finding an arbitrator's award reinstating department of mental retardation employee despite finding that he "had abused a client" contravened the public policy against "mistreatment of persons in the department's custody"); Rivera v. Rivera, No. FA000373859S, 2002 WL 237028, *2 (Conn. Super. Ct. Jan. 22, 2002) ("[T]he defendant left the marital home in Puerto Rico to escape physical abuse and to re-unite with her oldest child, the plaintiff soon followed and the mistreatment continued.").
The Court therefore concludes that an improper "use," or maltreatment, of another is "abuse." Stated another way, an act constitutes "abuse" if it deviates from proper "use," and "abuse" of another person is therefore maltreatment that deviates from a baseline societal understanding of what is appropriate conduct. The act of abuse may, but is not required to be motivated by an insured's subjective expectation or intent that bodily injury will occur.
Further, and contrary to Defendants' reading, the exclusion does not appear to contemplate two distinct forms of non-sexual abuse, that is, "physical abuse" and "mental abuse," as it does by use of the modifier "sexual," to describe each "molestation" and "harassment." In contrast, the term "abuse" is used only once with two descriptive modifiers, "physical" and "mental" ("physical or mental abuse"). Therefore, even though the parties agree that Mrs. Vecsey's injuries do not arise out of Mr. Vecsey's "mental abuse" of her, the pervasive abusive nature of their relationship provides a critical context in which to determine whether Mrs. Vecsey's injuries constituted "bodily injury . . . arising out of physical or mental abuse."
b. "Abuse" Does Not Imply or Require a Pattern of Conduct
The Court also rejects Defendants' argument that an act cannot be "abuse" unless it is part of a pattern of conduct for three reasons. First, where the insurance policies intended to refer to repetitive conduct, they expressly described it. The Umbrella Policy defines an "[o]ccurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Umbrella Policy at 1-2 (emphasis added).) Similarly, the Homeowners' Policy specifies that "[ r] epeated or continuous exposure to the same general conditions is considered to be one occurrence." (Homeowners Policy at 21 (emphasis added).) By contrast, neither policy relates the singular noun "abuse" to a pattern of conduct or repetitious acts.
Second, although it has not expressly so held, the Connecticut Supreme Court appears to be of the view that a single act can constitute "abuse." In Berry v. Loiseau, the court described a plaintiff's "being punched and choked" as " repeated physical abuse." 223 Conn. 786, 793 (1992) (emphasis added). Numerous state-court divorce and child-custody cases also refer to a " pattern of abuse" or abuse that is "chronic." See also Conn Gen. Stat. § 45a-717(g) (providing, as grounds for termination of parental rights, a parent's "severe physical abuse or a pattern of abuse" (emphases added)). The phrases "repeated physical abuse" and "pattern of abuse" would be superfluous and redundant if the term "abuse" already connoted chronic, repeated, or patterned conduct.
See also, e.g., United States v. Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96, 99 (2d Cir. 2000) (describing theory of prosecution of a person who allegedly "engaged in a pattern of sexual and physical abuse of boys entrusted to his care"); Elmowitz v. Executive Towers at Lido, LLC, 571 F. Supp. 2d 370, 378-79 (E.D.N.Y. 2008) (describing case "where the defendant allegedly repeatedly physically abused plaintiff").
See, e.g., In re Andrew R., Nos. U06CP05005442A, U06CP05005443A, U06CP06005781A, 2009 WL 1874190, *3 (Conn. Super. Ct. June 9, 2009) ("[t]he father has a history of chronic substance abuse"); Bonilla v. Bonilla, No. FA074012515S, 2009 WL 1706900, *2 (Conn. Super. Ct. May 22, 2009) (finding "no credible evidence that would support a pattern of spousal abuse"); In re Christine B., Nos. H12CP07011454A, H12CP07011457A, H12CP07011455A, H12CP07011456A, 2009 WL 1175680, *2 (Conn. Super. Ct. Apr. 8, 2009) (noting that mother has inflicted "repeated, extreme abuse o[n] her own children"); In re Selena O., No. H12-CP04-011822-B, 2008 WL 3307108, *15 (Conn. Super. Ct. Jul. 7, 2008) (noting mother's "continued chronic substance abuse"); In re Daniel M., No. H12CP07011630A, 2008 WL 2744872, *23 (Conn. Super. Ct. June 10, 2008) (noting that Department of Children and Families lists both "the parent ha[ving] inflicted severe physical abuse on the child" and "the parent ha[ving] engaged in a pattern of abuse against the child" as circumstances precluding reunification of parent and child).
Finally, given the insurer's express intent to exclude coverage for losses arising from abuse, it would be counter-productive to cover a loss where the causal act was the first instance of an act that was later repeated, while excluding coverage for the second, third, or subsequent instance of the same act. Where an act is performed a number of times — i.e., a pattern of the same conduct — Defendants make no argument that that act is intrinsically less harmful or abusive the first time it is performed. In other words, there is nothing about an abusive act in isolation or as the first in a series of acts that makes that first or only act not "abuse" as compared with subsequent acts. Reading the term "abuse" to require patterned conduct also introduces substantial coverage complexities, including how many acts are needed to form a "pattern," and whether an act is sufficiently similar to other acts to be part of a pattern of acts rather than a dissimilar, isolated act. Indeed, there is no indication that either Safeco or the Vecseys intended or understood the abuse exclusion to introduce these complications.
For these reasons, the Court declines to read the term "abuse" to imply or require a pattern of conduct. To the contrary, a single act can constitute "abuse" even if it is a one-time, isolated, unrepeated act.
2. Discussion
Having concluded that the abuse exclusions in the Vecseys' Homeowners and Umbrella Policies bar coverage for injuries caused by acts that deviate below a baseline measure of appropriate treatment of another, that is, acts that mistreat another, the Court examines whether Plaintiff has proved that Mr. Vecsey's conduct falls within the abuse exclusion.
It is clear to the Court that Mr. Vecsey's conduct was not merely accidental. An injury-causing event is accidental when it is unforeseen or unintentional; an accident is a result caused by an event where the event itself is unintended and unforeseen. See Walukiewicz, 290 Conn. at 594 ("A typical definition of the term `accident' is `a lack of intention or necessity, often opposed to design; an unforeseen unplanned event; [a] sudden event or change occurring without intent or volition . . . and producing an unfortunate result.") (emphasis added) (citations omitted). Under this definition, and despite the Vecseys' mantra that this was "an accident," the evidence makes clear that Mr. Vecsey's conduct was not merely accidental or a mere fortuity. Mr. Vecsey admitted that he intended to throw the carrot and intended and foresaw that the carrot he intended to throw would fly toward Mrs. Vecsey.
Even if Mr. Vecsey did not intend to cause Mrs. Vecsey's extensive facial and ocular injuries or never foresaw that if he hit her with the carrot it would do such devastating harm, he nonetheless intended to throw the carrot at her or in her direction to make her "shut up." Although Mr. Vecsey testified that he "didn't intend to hit anybody with the carrot" and that he "didn't throw it at anything specifically," and "just [] threw the carrot towards the wall," his cramped description of his conduct was that he threw it "in the direction of the wall that [his] wife and daughter were standing next to." Despite this less-than-credible description of where he was aiming his carrot projectile, the evidence shows that Mr. Vecsey intended to forcefully hurl his carrot in the direction of Mrs. Vecsey as his final act of contempt and insult to his wife as she turned to leave the room, to thereby end their argument, even if he did not intend to, or expect to cause her bodily injury.
The Court concludes from the trial evidence that, in the context of this marriage relationship marked by hostility and verbal malevolence, and in the context of a heated argument involving yelling, expletives, continuing anger, and without any indication of calm discussion or debate, Mr. Vecsey threw the carrot towards Mrs. Vecsey as a pejorative and disdainful expression of his anger and displeasure with his intoxicated wife, and intended this gesture as a forceful, derogatory put-down, an act of mistreatment, and his way to finally make Mrs. Vecsey "just stop." Mr. Vecsey testified that he threw the carrot towards the wall that his wife stood next to in a "sidearm" motion similar to "skimming a stone across a pond," which is entirely inconsistent with a unfocused act of exasperation such as slamming one's hand down on a table. Had Mr. Vecsey thrown the carrot solely in exasperation, and not to have an emotional impact, he could have slammed it on the floor. However, he threw the carrot sidearm directly towards his wife, whom he frequently verbally antagonized, at a time when he was angry with her and wanted her to "shut up." From the experts' testimony of the amount of damage done, he also threw with considerable force, not a flaccid toss.
The Court is unpersuaded by Mrs. Vecsey's counsel's summation argument that the abuse exclusion cannot apply in this case because it is inconceivable that a person would "use the [nub end] of a carrot to try to physically abuse someone."
Judged either objectively or from the perspective of the Vecseys' own dysfunctional and hostile marriage/relationship, Mr. Vecsey's carrot-throwing was not accidental but was a form of mistreatment of Mrs. Vecsey that fell below a standard of appropriate treatment of one's spouse, even though they both claimed that Mr. Vecsey had never previously struck Mrs. Vecsey. Hurling a half-eaten piece of food at one's spouse to make her back off in a hostile confrontation by means of this physical expression of subordination and disdain is an act of maltreatment of her. It does not matter to the Court's conclusion whether Mr. Vecsey intended that the carrot would strike Mrs. Vecsey or just slam into the wall near her. He threw the carrot contemporaneously with ordering Mrs. Vecsey and Kaelin to "just stop," because "I was exasperated. I just wanted it to stop." Having concluded that Mr. Vecsey's intentional carrot-throwing was an act of physical abuse, as Mrs. Vecsey initially characterized it, the injuries that arose from it fall within the policies' exclusion from coverage of "[a]ny personal injury arising out of . . . physical or mental abuse."
Keith Pacific, Mrs. Vecsey's brother, testified that in the late 1990s he witnessed Mr. Vecsey yell at Mrs. Vecsey and then grab her by the shoulders and shake her, at which point he intervened and separated them. While Mr. Pacific's testimony did not lack credibility, this incident is too remote in time to have much probative value, and does not affect the Court's conclusion that Mr. Vecsey's throwing the carrot at Mrs. Vecsey was an act of abuse.
Because the Court does not rely on Mr. Pacific's testimony, Defendants' identical Motions in Limine [Doc. ## 58, 63], seeking exclusion of Mr. Pacific's testimony and other character evidence, other bad acts, and state-court records subject to Conn. Gen. Stat. § 54-142a are moot, and will be denied as such.
III. Conclusion
For the reasons stated above, Safeco has shown that it is entitled to judgment in its favor on both counts of its Amended Complaint [Doc. # 7-1], and further that it is entitled to the following declarations: There is no coverage for Roderick A. Vecsey under the Homeowners Policy for the claims asserted against him in the Vecsey Personal-Injury Action. There is no coverage for Roderick A. Vecsey under the Umbrella Policy for the claims asserted against him in the Vecsey Personal-Injury Action. Safeco has no duty to defend Roderick A. Vecsey in the Vecsey Personal-Injury Action. Safeco has no duty to indemnify Roderick A. Vecsey for any judgment against him in the Vecsey Personal-Injury Action. Judgment shall be entered accordingly.
IT IS SO ORDERED.
Dated at New Haven, Connecticut this 30th day of September, 2010.