Colony Ins Co v. Jack A. Halprin Inc et al
RULING (see attached) denying, as a preliminary matter, 40 Plaintiff's Motion to Strike Affidavit of Martin Halprin, granting 26 Plaintiff's Motion for Summary Judgment, and entering declaratory judgment that Plaintiff Col ony Insurance Company has no duty to defend or indemnify defendant Jack A. Halprin, Inc. in Rochelle Myrick, Administratrix of the Estate of Ensley E. Myrick, et al. v. Jack A. Halprin, Inc., et al., Docket No. NNH-CV10-5033401-5. The Clerk is directed to enter judgment for the plaintiff and close the file. Signed by Judge Charles S. Haight, Jr. on July 11, 2012. (Dorais, L.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
COLONY INSURANCE COMPANY,
3:10 - CV - 1059 (CSH)
JACK A. HALPRIN, INCORPORATED,
ROCHELLE MYRICK, ADMINSTRATRIX
OF THE ESTATE OF ENSLEY E.
MYRICK, TARA REED,
ADMINISTRATRIX OF THE ESTATE OF
JOSEPH E. REED, ANTHONY PERELLI,
CATWALK, LLC and MARKEASE HILL,
July 11, 2012
RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
HAIGHT, Senior District Judge:
Plaintiff Colony Insurance Company (“plaintiff” or “Colony”) commenced this action for a
declaratory judgment that it has no duty to defend or indemnity its policy holder Jack A. Halprin, Inc.
(“defendant” or “Halprin”) in a separate pending state court civil action, captioned Rochelle Myrick,
Administratrix of the Estate of Ensley E. Myrick, et al. v. Jack A. Halprin, Inc., et al., Docket No.
NNH-CV10-5033401-5 ( herein “Myrick Action”).1 Doc. # 1 (Declaratory Judgment Complaint).
In that action, Rochelle Myrick, Tara Reed, and Anthony Perelli (“Myrick,” “Reed,” and “Perelli”),
The Myrick Action was filed on July 16, 2010 in Connecticut Superior Court in the
Judicial District of New Haven and remains pending as of the present date.
additional named defendants herein, seek to recover damages for the shooting deaths of Ensley
Myrick and Joseph E. Reed and the injuries inflicted upon Perelli by Markease Hill (“Hill”) in the
parking lot of defendant’s establishment known as the “Catwalk.”2
Upon plaintiff’s motion, due to the failure to appear or respond, the Court entered default
judgments against defendants Hill, Catwalk, Perelli, Myrick, and Reed. Doc. #44, 64. The action
thus remains pending solely against defendant Halprin.
Pending before the Court is plaintiff’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56(c). In that motion, plaintiff asserts that there is “no genuine issue of
material fact that the Colony policy of insurance is not answerable to any of the claims asserted
against Halprin in the Myrick lawsuit because these claims are excluded from coverage by operation
of the Assault and Battery Exclusion contained in the Colony insurance policy.”3 Doc. #26, p. 3.
The Court has derived the following material facts from the parties’ submissions, which
include, inter alia, the parties’ Local Rule 56(a) Statements, supporting affidavits, and documents.
The Catwalk is a restaurant and bar owned by Halprin located at 311 East Street in New
Haven, Connecticut. Doc. #27-1, First Count, ¶ 8. According to plaintiff, the Catwalk is a
“purveyor of adult entertainment, namely erotic and/or naked female dancers.” Id., ¶ 9.
The insurance policy Colony issued to Halprin with respect to the premises of the
Catwalk restaurant, Policy No. GL 3604231, covered the period of July 16, 2007, to July 16, 2008.
See Doc. #27-1 (herein “Colony Policy”). That policy contained an “assault and battery” exclusion
for “bodily injury,” “property damage,” or “personal and advertising injury” resulting from, inter
alia, “[a]ssault and battery committed by any person.” Id., p. 18, § 1(1)-(5). Plaintiff relies on the
“assault and battery” exclusion to maintain that the injuries for which the Myrick Action plaintiffs
seek recovery are explicitly excluded from coverage by the Colony Policy.
Plaintiffs in the underlying or Myrick Action (Myrick, Reed and Perelli) allege that Halprin
owned, controlled, maintained, managed, possessed and supervised the property located at 311 East
Street in New Haven, Connecticut (herein the “Catwalk Property”). Doc. #27-1 (Ex. A), Complaint,
First, Second & Third Counts, ¶¶ 6-7. The property was allegedly comprised of numerous
establishments, including the Catwalk restaurant and a parking lot, providing parking for the
establishments located on the property. Id., ¶¶ 8-10. Specifically, Halprin allegedly maintained
control, possession, and operation of the parking lot. Id., ¶ 11.
On June 11, 2008, at approximately 1:40 am, Myrick’s decedent, Reed’s decedent, and
Perelli were business invitees present in the Catwalk parking lot. Id., ¶¶ 12, 18. Myrick’s and
Reed’s decedents were each shot and killed by Hill at that time. Id., ¶ 19. Specifically, Myrick’s
decedent died after receiving gunshot wounds to his head and his ring finger, id., First Count, ¶ 22;
and Reed’s decedent perished from a gunshot wound to his head, id., Second Count, ¶ 22. Hill also
shot at Perelli, forcing him to flee for his life and safety. Id., Third Count, ¶ 20. In fleeing, Perelli
allegedly sustained muscular sprain and strains, bruises, contusions, lacerations and fear of death and
grievous bodily harm as a result of the shooting. Id., ¶ 22.
The plaintiffs in the Myrick Action alleged that the injuries, damages and losses sustained
by Myrick’s and Reed’s decedents and Perelli were caused by Halprin’s negligence and carelessness
in failing to (1) properly secure, maintain, supervise and inspect the parking lot; (2) properly and
reasonably supervise, control and protect the individuals on the Catwalk premises, including the
parking lot; (3) stop and prevent the illegal sale and use of narcotics, illegal consumption of alcohol,
larceny and thefts, illegal sale of liquor, and physical violence on the premises, including the parking
lot; (4) place attendants, security personnel, and/or security devices in the parking lot or to take other
reasonable steps to protect the safety of individuals in the parking lot; (5) provide adequate security
personnel or to properly supervise or train any security personnel it did provide; (6) warn
individuals on the property that the parking lot was unsecured and/or unsupervised; (7) hire and
employ extra-duty uniformed police officers to protect individuals on the property; and (8) use and
implement security cameras in the parking lot, or if Halprin did so, to use cameras that were
properly positioned, properly functioning and/or hooked up or activated. Id., First, Second and
Third Counts, ¶ 21 (a)-(x); Fourth, Fifth and Sixth Counts, ¶ 22 (a)-(x); Seventh to Twelfth Counts,
The Colony Policy
In 2007, Colony issued a policy of insurance, Policy Number GL3604231, to Jack A. Halprin,
Inc., effective for the period of July 16, 2007, to July 16, 2008. See Doc. #27-2, (Affidavit of
Carolyn Ford at ¶ 3) & Ex. 1 (Colony Policy). That policy contains an explicit “Assault and Battery
Exclusion,” which states that there is no insurance coverage for “damages or expenses due to ‘bodily
injury,’ ‘property damage’ or ‘personal and advertising injury’ arising out of or resulting from:
Assault and Battery committed by any person;4
In general, “assault” has been defined under the law as “[t]he threat or use of force
on another that causes that person to have a reasonable apprehension of imminent harmful or
offensive contact; the act of putting another person in reasonable fear or apprehension of an
immediate battery by means of an act amounting to an attempt or threat to commit a battery.”
Black’s Law Dictionary (9th ed. 2009). “Battery” is generally defined as “[t]he use of force against
another, resulting in harmful or offensive contact.” Id. The tort of assault is thus intended to protect
an individual’s “interest in freedom from apprehension of a harmful or offensive contact with
[another] person” and battery, encompassed by assault, further protects one “from intentional and
unpermitted contact.” 1 Am. Jur. Proof of Facts 3d 613 (1988, database update April 2012).
“Generally, . . . a battery includes an act constituting an assault, and an assault is often an attempted
The failure to suppress or prevent assault and battery by any person;
The failure to provide an environment safe from assault and battery or failure to warn
of the dangers of the environment which could contribute to assault and battery;
The negligent hiring, supervision, or training of any person;
The use of any force to protect persons or property whether or not the “ bodily injury”
or “property damage” was intended from the standpoint of the insured or committed
by or at the direction of the insured.”
Doc. #27-2, Ex. B, p. 18, , § 1 (¶¶ 1-5).
Colony is defending Halprin in the Myrick Action under a reservation of rights, awaiting the
outcome of this motion. Id., Ex. B, p. 2, ¶ 5. Colony contends that it is not answerable to the claims
asserted against Halprin in the Myrick Action by virtue of the Assault and Battery Exclusion in the
Colony Policy. Furthermore, Colony asserts that it “is entitled to a declaration that it has no duty
to defend or indemnify Halprin in the Myrick lawsuit because the Myrick Plaintiffs allege injuries
arising out of or resulting from an Assault and Battery.” Doc. #27, p. 5.
This Court exercises subject matter jurisdiction over the present action based on diversity of
citizenship under 28 U.S.C. § 1332(a)(1).
There is complete diversity of citizenship between
plaintiff and the remaining defendant, Halprin, and the amount in controversy exceeds $75,000.5
In Connecticut, “an actionable assault and battery may be one committed wilfully or
voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard
of consequences; or one committed negligently.” Alteiri v. Colasso, 168 Conn. 329, (1975) (citing
Russo v. Porga, 141 Conn.706, 708-09 (1954) and Lentine v. McAvoy, 105 Conn. 528, 531 (1927)).
Plaintiff Colony is an insurance company incorporated in Virginia with its principal
place of business in Richmond, Virginia. Doc. #1, p. 2 (¶2). Defendant Halprin is a Connecticut
Since the Court has subject matter jurisdiction over this action, it may render declaratory judgment
under the Declaratory Judgment Act, 28 U.S.C. § 2201.6
Preliminary Matter – Plaintiff’s Motion to Strike the Affidavit of Martin
As a preliminary matter, before addressing the pending summary judgment motion, the Court
must turn its attention to plaintiff’s motion to strike the affidavit of Martin Halprin (“Halprin
Affidavit”), which defendant filed in support of its objection to plaintiff’s summary judgment
motion. See Doc. #40 (moving to strike the affidavit, which is Doc. #38). The affiant, Martin
Halprin, is presumably a different individual from that Jack A. Halprin who gives his name to the
corporate defendant. Martin Halprin identifies himself in ¶ 2 of his affidavit as “an authorized agent
of Jack A. Halprin, Incorporated” who has “acted as a manager of the corporate affairs.” According
to the Halprin Affidavit, Martin Halprin arranged with Colony for the issuance to the defendant of
the policy in suit. Plaintiff moves to strike “on the basis that the statements in the Halprin Affidavit
are entirely irrelevant to the coverage issue before the Court and several of the statements also reflect
conclusions or constitute hearsay.” Doc. #39 (summarizing Doc. #40).
corporation with its principal place of business in New Haven, Connecticut. Id. (¶ 3).
28 U.S.C. § 2201, captioned, “Creation of remedy,” provides in relevant part:
(a) In a case of actual controversy within its jurisdiction, . . . any court of the United
States, upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. Any such declaration shall have the force and effect of
a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201(a).
Neither plaintiff’s barebones notice of motion to strike the Halprin Affidavit nor its brief in
support of that motion specifies the Federal Rule of Civil Procedure under which that relief is sought.
The omission is not surprising, since there is no Rule providing for the striking of such a document
in such a procedural context.
Motion to Strike under Rule 12(f)
Pursuant to Federal Rule of Civil Procedure 12(f), a court may, sua sponte or upon motion,
strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”
from a party’s pleading. Such motions are nonetheless generally disfavored. See, e.g, Hathaway
Motors, Inc. v. General Motors Corp., 19 F.R.D. 359, 360 (D. Conn. 1955) (“Motions to strike . .
. are in disfavor”); D’Agostino v. Housing Authority of City of Waterbury, No. 3:05cv1057 (PCD),
2006 WL 1821355, at *2 (D. Conn. June 30, 2006) (“motions to strike are generally disfavored”);
Wright & Miller, Fed. Practice & Procedure § 1380 (“[M]otions under Rule 12(f) are viewed with
disfavor by the federal courts and are infrequently granted.”).
“Most importantly, Rule 12(f) allows a court to strike pleadings only. Declarations and
affidavits are not pleadings.” Ricci v. Destefano, No. 3:04 CV 1109 (JBA), 2006 WL 2666081, at
*1 (D.Conn. Sept. 15, 2006) (internal quotations and citations omitted).
Therefore it is
inappropriate to strike material contained in exhibits to motions. Ricci, 2006 WL 2666081, at *1.
See also Monroe v. Board of Ed. of Town of Wolcott, 65 F.R.D. 641, 645 (D. Conn.1975) (“A rule
12(f) motion to strike is not strictly proper in this instance, for the record of the . . . hearing [attached
to opposition to summary judgment] is not a ‘pleading.’”).
Similarly, “a reply memorandum is not a pleading.” Marshall v. Webster Bank, N.A.,No.
3:10-cv-908 (JCH), 2011 WL 219693, at *12 (D. Conn. Jan. 21, 2011) (collecting cases). Thus,
neither the assertions in defendant’s counsel’s objection memorandum, nor the Halprin Affidavit
attached thereto, is a “pleading” from which the Court might properly strike material under Rule
Motion to Strike In Context of Summary Judgment
Federal Rule 56(c)
Furthermore, even if the Court were to construe the Halprin Affidavit as a “pleading,” a
motion to strike is improper with respect to summary judgment. “The Federal Rules of Civil
Procedure do not explicitly allow motions to strike in the context of summary judgment.”
Ferraresso v. Town of Granby, 646 F. Supp.2d 296, 301 (D. Conn. 2009). Specifically, “Rule 56,
which governs summary judgment, does not provide a ‘motion to strike’ as a tool in the summary
judgment process.” Ferraresso, 646 F. Supp.2d at 301. Rather, Rule 56(c) provides a means to
object to inadmissible evidence referenced by the opposing party as follows:
A party may object that the material cited [by the party’s opponent] to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.
Fed. R. Civ. P. 56(c). Federal Rule 56(c) thus contemplates that the parties will flag for the court
material cited by opposing counsel which is not admissible, and hence not properly considered on
Local Rule 56(a)
Under the Local Rule 56(a), when ruling on summary judgment, the court is required to
consider only evidence that is admissible. See D. Conn. L. Civ. R. 56(a)(1) (court may only consider
statements of fact that are “supported by the evidence”); Giannullo v. City of New York, 322 F.3d
139, 142 (2d Cir.2003).7 Courts, such as this one, “undertake this obligation faithfully and fully
review the proffered evidence of record and draw appropriate conclusions.” Ricci, 2006 WL
2666081, at *3.
As Judge Squatrito noted in Martin v. Town of Westport, 558 F. Supp.2d 228, 231
(D.Conn.2008), “the court knows the difference between admissible and non-admissible evidence,
and would not base a summary judgment decision simply upon the self-serving ipse dixit of a
particular party.” Consequently, “[i]f a party wishes to argue that an asserted material fact is not
supported by the evidence, that party may do so in its summary judgment briefing.” Id. (internal
quotations and citation omitted).
Because they review and rely only upon admissible evidence on summary judgment, courts
within this District have repeatedly denied motions to strike as unnecessary. See. e.g., Radolf v. Univ.
of Conn., 364 F. Supp.2d 204, 230 (D. Conn.2005) (denying as moot motions to strike portions of
affidavit and Local Rule 56(a) Statement because court did not rely on challenged evidence);
Waananen v. Barry, 343 F.Supp.2d 161, 172 (D. Conn.2004) (denying motions to strike exhibits and
paragraphs of Rule 56(a) Statement as moot because not relied on by court).
Plaintiff’s current motion to strike is addressed to the Halprin Affidavit appended to
defendant’s opposition brief to the pending summary judgment motion. Doc. #38. That affidavit
is not a “pleading” and thus not properly subject to having its contents stricken pursuant to Federal
See also D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material fact by a movant in a
Local Rule 56(a)1 Statement or by an opponent in a Local Rule 56(a)2 Statement, and each denial in an
opponent’s Local Rule 56(a)2 Statement, must be followed by a specific citation to (1) the affidavit of
a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at
Rule 12(f). Furthermore, because the affidavit has been filed in the context of summary judgment,
striking it would be inappropriate per se. On summary judgment, plaintiff has objected to the
contents of the affidavit as inadmissible evidence, Fed. R. Civ. P. 56(c)(2), and the Court is fully
aware that it must consider only admissible evidence with respect to the pending summary judgment
motion, D. Conn. L. Civ. R. 56(a)(1).
Accordingly, plaintiff’s motion to strike (Doc. #40) is
unnecessary and thus DENIED as moot. Any conclusory, baseless, irrelevant or hearsay statements
contained in the Halprin Affidavit (Doc. #38) shall not be considered by the Court in its ruling on
plaintiff’s summary judgment motion.8
For example, Martin Halprin’s conclusory statements regarding what “would be
clearly obvious to the representatives of the Colony Insurance Company” and what is “reasonably
foreseeable” in connection with a liquor serving establishment ( Doc. #38, ¶¶ 7-8) are disregarded
as they state his opinions and are not subject to cross- examination on summary judgment. See
Monroe v. Board of Ed. of Town of Wolcott, Connecticut, 65 F.R.D. 641, 650 (D.Conn. 1975)
(“conclusory statements of opinion in affidavits [filed in conjunction with summary judgment] are
entitled to no weight in the court’s deliberative process”). Similarly, the Court gives no weight to
Halprin’s assertion that defendant “would not have purchased this insurance if [he] had known that
there was such an exclusion.” Doc. #38, ¶ 11. Halprin cannot be heard to say that the corporate
defendant did not know “there was such an exclusion” because the exclusion was printed in the
policy, which defendant accepted.
Quite apart from these considerations, Martin Halprin’s account of his conversations with
the insurance broker is hearsay and in any event irrelevant to the issues. Doc. #38, ¶ 9 (“I
particularly told the broker that the company wanted full coverage.”).
See Steinberg v.
Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492, 494-95 (D.Conn.
2003)(“out of court assertion . . . introduced to prove the truth of the matter asserted” is hearsay
evidence which is generally inadmissible) (citing Fed. R. Evid. 801(c) & 802). Moreover, even if
Halprin’s statement were not hearsay or fell within a hearsay exception under Fed. R. Evid. 803,
because it is offered to show Halprin’s intent with respect to the agreement under the Colony Policy,
it is not relevant under Connecticut law. Where the language of the contract is clear, the “intent of
the parties” for entering the insurance contract must be “derived from the four corners of the policy.”
Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 463 (2005).
Standard for Summary Judgment
Plaintiff has moved this Court for summary judgment pursuant to Federal Rule of Civil
Procedure 56(c). The criteria for granting or denying summary judgment are well established.
Summary judgment may be granted only if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). See Jacobson v. Metro.
Prop. & Cas. Ins. Co., 672 F.3d 171, 174 (2d Cir. 2012) ; accord Kuebel v. Black & Decker Inc., 643
F.3d 352, 358 (2d Cir. 2011). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“A material fact is one that might ‘affect the outcome of the suit under the governing law,’
and a dispute about a genuine issue of material fact occurs if the evidence is such that ‘a reasonable
[fact-finder] could return a verdict for the nonmoving party.’” Madison Nat. Life Ins. Co., Inc. v.
Travelers Prop. Cas. Co. of America, No. 11–1438–cv, 2012 WL 516835, at *1 (2d Cir. Feb. 17,
2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“In determining whether there are genuine issues of material fact, [the district court is]
‘required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’” Jenkins v. NYS Banking Dep’t, 458 F. App’x 36, 37
(2d Cir. 2012)(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)). Summary judgment
is then appropriate only “[w]here the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Jenkins, 458 F. App’x at 37 (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The party seeking summary judgment bears the burden of showing entitlement to a summary
disposition. Anderson, 477 U.S. at 256; Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The
moving party has the burden to establish that there exists no genuine issue of material fact
warranting a trial. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). To meet that burden, the
moving party may show – i.e., point out to the district court – “that there is an absence of evidence
to support the nonmoving party’s case.” PepsiCo., Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.
Once the moving party meets its burden, it is incumbent on the opposing party to present
sufficient evidence to show that a fact-finder could reasonably find genuine issues of fact. Anderson,
477 U.S. at 255. Specifically, “the nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial.” Id.; see also Caldarola v. Calabrese, 298 F.3d 156, 160 (2d
Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586-87); R.G. Group, Inc. v. Horn & Hardart Co.,
751 F.2d 69, 77 (2d Cir.1984) (nonmoving party must set forth “concrete particulars” showing that
a trial is needed). In opposing summary judgment, one “may not rely on mere allegations or denials,
but rather must ‘cit[e] to particular parts of materials in the record’ to demonstrate that a fact is
genuinely disputed.” Eaddy v. City of Bridgeport, No. 09CV1836 (MRK), 2011WL 1399031, at *3
(D. Conn. April 12, 2011) (quoting Fed. R. Civ. P. 56(c)(1)). There must be more than a “scintilla
of evidence” in the non-movant’s favor. Anderson, 477 U.S. at 252. “[C]onclusory allegations,”
“bald assertions,” and “metaphysical doubt” will not suffice. See, e.g., BellSouth Telecomms., Inc.
v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (it is insufficient for a party opposing
summary judgment “merely to assert a conclusion without supplying supporting arguments or
See also Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1983)
(“Genuine issues of fact are not created by conclusory allegations.”); Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir. 1991) (“defendants’ bald assertion, completely unsupported by evidence, did not
satisfy their burden” to overcome properly supported summary judgment motion); see also
Matsushita Elec., 475 U.S. at 586 (to avoid summary judgment, a party “must do more than simply
If the evidence is “merely colorable, or is not significantly probative,” summary judgment
may be granted.” Anderson, 477 U.S. at 249-50. Moreover, ‘the mere existence of some alleged
factual dispute between the parties” alone will not defeat a properly supported motion for summary
judgment.” Id. at 247-48.
In seeking summary judgment, plaintiff requests this Court to render declaratory judgment
under the Declaratory Judgment Act (“DJA”), 28 U.S.C. §2201.10
An action for declaratory
judgment must meet the “case or controversy” requirement in that it “must be sufficiently real and
immediate, allowing specific and conclusive relief . . . and be ripe for adjudication.” Pub. Serv.
Comm’n v. Wycoff Co., Inc., 344 U.S. 237, 244 (1952). The district court retains discretion under
the DJA to determine whether to exercise jurisdiction over the action at issue. See, e.g., Dow Jones
& Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003). The court then considers “the
litigation as a whole” and whether “practicality and wise judicial administration will predominate.”
U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F. Supp.2d 348, 352-53 (E.D.N.Y. 2006) (citing
Gianni Sport Ltd., v. Metallica, No. 00 Civ. 0937(MBM), 2000 WL 1773511, at *4 (S.D.N.Y. Dec.
4, 2000) and Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)).
show that there is some metaphysical doubt as to the material facts”).
28 U.S.C. § 2201(a) states in relevant part:
[A]ny court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such a declaration, whether or not further relief is or
could be sought.”
See also Fed. R. Civ. P. 57 (stating that “[t]hese rules govern the procedure for obtaining a
declaratory judgment under 28 U.S.C. § 2201").
In the case at bar, there are, as plaintiff contends, “bona fide and substantial questions and
issues in dispute” among the parties. Doc. #1, p. 6 (¶ 28). First, there is a dispute as to whether
plaintiff insurer must defend Halprin in the underlying action.11 Colony maintains that it has no
such duty to defend or indemnify based on an “assault and battery” exclusion clause (“Assault and
Battery Exclusion ”) in its policy with Halprin (“Colony Policy”). Declaratory judgment would thus
provide the parties with specific, conclusive relief in resolving whether the Colony Policy in fact
excludes coverage for the damages sought in the underlying action.
Furthermore, the issue of coverage under the Colony Policy may not be properly litigated in
the underlying action because Colony is not a named party in that suit. “When a determination of
the duty to defend can be made and thus clarify the insurer’s obligations in the underlying tort action,
the DJA is properly invoked.” U.S. Underwriters Ins. Co., 443 F. Supp.2d at 353 (citing
Metropolitan Prop. & Liab. Ins. Co. v. Kirkwood, 729 F.2d 61, 63 (1st Cir. 1984)). The case at bar
is such a case.
Choice of Law
A federal court sitting in diversity applies the forum state’s conflict of law rules to determine
which state’s substantive law governs the dispute. Klaxon Co. v. Stentor Co., 313 U.S. 487, 496
(1941). For issues of contract interpretation, Connecticut applies the test set forth in the Restatement
(Second) of Conflicts of Law (“Restatement”) § 188, which, absent an effective choice of law by the
parties, applies the law of the state with the “most significant relationship” to the transaction and
Colony has retained the Pellegrino Law Firm and is currently defending Halprin in
the underlying action under a “complete reservation of rights.” Doc. #1, p. 6 (¶ 27).
the parties. 12 Reichold Chems. Inc. v. Hartford Accident and Indem. Co., 252 Conn. 774, 781
(2000) (a/k/a “Reichold II”).
With respect to liability insurance contracts in particular, Connecticut recognizes a rebuttable
presumption in favor of the state “where the insured risk is located.” Reichold II, 252 Conn. at 782
(citing § 193 of the Restatement (Second), recognizing rebuttable presumption in favor of applying
law of state “which the parties understood was to be the principal location of the insured risk”). See
also Lumbermens Mut. Cas. Co. v. Dillon Co. Inc., No. 3:98–CV–2013 (EBB), 2000 WL 1336498,
at *2-3 (D. Conn. Aug. 31, 2000) (applying Reichold II to hold “‘most significant interest’ test
mandates that, in the absence of extraordinary circumstances, the law of the state where the principal
insured risk is located will apply”).
The Court will apply the law of the State of Connecticut to this liability insurance policy
because Connecticut has the “most significant interest” in this policy. Applying Reichold II,
Connecticut is the location of the subject matter (i.e., the Catwalk Property in New Haven,
Connecticut) and thus the risk of liability covered by the contract.
In further support, and in
accordance with the traditional factors set forth in Restatement § 188, Connecticut is the place where
the contract was entered into and executed (through agent Joseph A. Krar, of Southington,
Connecticut) (Doc. #27-2, Ex. B, p. 45), and the location where the remaining defendant is
incorporated and has its principal place of business. Although the parties make no reference to
Section 188 lists five relevant contacts to be considered when determining which state
has the “most significant relationship” to the contract: “(a) the place of contracting, (b) the place
of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter
of the contract, and (e) the domicil[e], residence, nationality, place of incorporation and place of
business of the parties.” Restatement (Second) Conflicts of Laws § 188 (2)(e). Section 188 also
incorporates by reference seven more generalized choice-of-law principles.
“choice of law” in their memoranda on the present motion, both Colony and Halprin cite Connecticut
case law throughout, thereby acknowledging that Connecticut law governs this case.
Construction of Insurance Policy Under Connecticut Law
Under Connecticut law, the scope of coverage provided by and applicability of an insurance
policy is appropriate for resolution at the summary judgment stage. Moore v. Continental Cas. Co.,
252 Conn. 405 (2000). Moreover, “[c]onstruction of a contract of insurance presents a question of
law for the court . . . .” 252 Conn. at 409 (citing Pacific Indem. Ins. Co. v. Aetna Cas. & Sur. Co.,
240 Conn. 26, 30 (1997)).
In Connecticut, insurance policies are construed according to general rules of contract
Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 290 Conn. 767, 795 (2009).
Contracts are thus “enforced in accordance with the parties’ intent, as derived from the plain and
ordinary meaning of the policy’s terms.” Allstate Ins. Co. v. Quito, No. 3:06cv1671 (PCD), 2007
WL 2221163, at *3 (D. Conn. Aug. 2, 2007) (citing Ohio Cas. Ins. Co. v. Dentek, Inc., 283 F. Supp.
2d 655, 659 (D. Conn. 2003)). The primary rule is that “the Court must read the policy language
as a layman, rather than [as] an experienced underwriter” and should not “torture words to import
ambiguity” where none exists. Jurrius v. Maccabees Mut. Life Ins. Co., 587 F. Supp.1301, 1305
(D.Conn. 1984). See also Allstate Ins. Co., 2007 WL 2221163, at *3 (“If a provision in an insurance
policy is susceptible of two or more reasonable interpretations, that ambiguity will be resolved in
favor of the insured; however, when the language is clear, no such construction is applied.”).
It is well settled that “exclusions from insurance policy coverage are given strict
construction.” Kimmins Indus. Serv. Corp. v. Reliance Ins. Co., 19 F.3d 78, 81 (2d Cir. 1994). See
also State of New York v. Blank, 27 F.3d 783, 788 (2d Cir.1994); U.S. Underwriters Ins. Co. v. Kum
Gang, Inc., 443 F. Supp. 2d 348, 356 (E.D.N.Y. 2006). Policy exclusions are interpreted in a
manner most beneficial to the insured. MH Lipiner & Son, Inc. v. Hanover Ins. Co., 869 F.2d 685,
687 (2d Cir. 1989). Any “ambiguous words or phrases in an insurance policy are construed strictly
against the insurance company and in favor of coverage.” Clinton v. Aetna Life & Sur. Co., 41 Conn.
Supp. 560, 563 (Conn. Super. Ct. 1991) (citing G. Richards, Law of Insurance (6th Ed. Freedman)
§ 11.2(f), ¶¶ 250-51); accord McCauley Enterprises, Inc. v. New Hampshire Ins. Co., 716 F.
Supp.718, 720 (D. Conn. 1989). “The test of coverage is not what the insurer intended to cover but
what a reasonable person in the position of the insured would understand to be covered.” Clinton,
41 Conn. Supp. at 563 (citation omitted).
Focusing on the insurer’s duty to defend, the Connecticut Supreme Court set forth the proper
analysis of the policy’s language in Hartford Cas. Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274
Conn. 457 (2005) :
It is the function of the court to construe the provisions of the contract of insurance
. . . . The [i]nterpretation of an insurance policy . . . involves a determination of the
intent of the parties as expressed by the language of the policy . . . [including] what
coverage the . . . [insured] expected to receive and what the [insurer] was to provide,
as disclosed by the provisions of the policy. . . . [A] contract of insurance must be
viewed in its entirety, and the intent of the parties for entering it derived from the
four corners of the policy . . . [giving the] words . . . [of the policy] their natural and
ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the
insured . . . .
274 Conn. at 463 (ellipses in original) (internal citations and quotations omitted). Accord Taylor v.
Mucci, 288 Conn. 379, 383 (2008) (“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.”) (internal quotations and citations omitted).
After examining the words contained in the “Assault and Battery Exclusion” of the Colony
Policy, the Court concludes that the language is clear and unambiguous. It excludes coverage for
all damages due to “bodily injury,” “property damage,” and “personal and advertising injury” that
arise out of or result from “Assault and Battery committed by any person.” Doc. #27-2, p. 18.
Giving these words their natural and ordinary meaning, one concludes that the parties intended to
exclude coverage for damages arising from any act of “assault and battery,” regardless of the identity
of the actor (i.e., “committed by any person”). The exclusion also broadly includes the “failure to
suppress or prevent” assault and battery; the “failure to provide an environment safe from assault
and battery or failure;” the failure “to warn of the dangers of the environment which could contribute
to assault and battery;” the “negligent hiring, supervision, or training of any person;” and the “use
of any force to protect persons or property whether or not the ‘bodily injury’ or ‘property damage’
was intended from the standpoint of the insured or committed by or at the direction of the insured.”
Doc. #27-2, Ex. B, p. 18, , § 1 (¶¶ 1-5). In sum, absent torturing any language to create more than
one interpretation, the meaning of the “assault and battery” exclusion is clear. A reasonable insured
would understand that damages resulting from assault and battery would not be covered by the
The inquiry into the scope of Colony’s duty to defend is not, however, complete upon the
interpretation of the policy’s language. Rather, it is incumbent on the Court to examine the factual
allegations contained in the complaint in the underlying action (Doc. #27-1). The issue is whether
the facts alleged in that complaint bring the injuries within the policy’s coverage. If the complaint
might possibly set forth a cause of action within coverage, Colony has a duty to defend Halprin. See
Part IV.G., infra. In the present circumstances, where the policy’s language expressly excludes
coverage for bodily injuries and property damage caused by assault and battery, Colony will have
no duty to defend or indemnify Halprin if the causes of action in the Myrick Action complaint all
describe injuries to Ensley E. Myrick, Joseph E. Reed, and Anthony Perelli resulting from assault
and battery. Eventually, therefore, the Court must turn to and parse the factual allegations contained
in the complaint in the underlying action.
Defendant’s Arguments in Opposition to Summary Judgment
Before examining the particular allegations of the complaint in the Myrick Action to
determine whether there is a duty to defend under the Colony Policy, the Court considers the
arguments made by defendant which challenge the validity of the assault and battery exclusion.
In opposition to plaintiff’s motion for summary judgment, defendant first alleges a lack of
knowledge regarding the “assault and battery” exclusion. Specifically, in its brief on this motion,
defendant contends that the exclusion was “buried in the policy” and never mentioned to Martin
Halprin, defendant’s agent in negotiating the policy. Doc. #37, p. 2. Defendant further alleges that,
through its agent, it sought “full coverage” of the Catwalk premises, such that had defendant known
of the “assault and battery” exclusion, defendant would not have purchased the policy. Id.
The Court finds such an argument lacking both in credibility and merit. Defendant itself
concedes that the “assault and battery” exclusion was plainly included within the written language
of the policy at Form U006 (07-02). Id., p. 2 n. 1 (form “as delivered to Defendant does include a
list of exclusions, including mention of U006-0702 Assault and Battery Exclusion”). In the Colony
Policy, “ASSAULT AND BATTERY EXCLUSION” is printed in bold-faced capital letters at the
top of the page under the instruction, “THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY.” Doc. #27-2, p. 18. Despite such noticeable language, agent
Martin Halprin claims he never saw this exclusion and that it was “buried in the policy.” Doc. #37,
“In Connecticut, the fact that a party signed a written agreement is usually conclusive
evidence of contract formation.” D’Antuono v. Service Road Corp.,789 F.Supp.2d 308, 323
(D.Conn. 2011). “The general rule is that where a person of mature years, who can read and write,
signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it,
and notice of its contents will be imputed to him if he negligently fails to do so.”13 Ursini v.
Goldman, 118 Conn. 554, 562, 173 A. 789 (1934). Accord Delk v. Go Vertical, Inc., 303 F.Supp.2d
94, 99 (D.Conn. 2004). This “duty to read rule derives from the objective theory of contracts, under
which one party to a contract must be permitted to rely on the manifested assent demonstrated by the
other party’s signature (or action) without fear that the latter may subsequently void the contract by
claiming failure to read or understand.”14 Allied Office Supplies, Inc. v. Lewandowski, 261
Although “there is an exception to that general rule when something has ‘been said or
done to mislead the person ... or to put a [person] of reasonable business prudence off his [or her]
guard in the matter,” Ursini, 118 Conn. at 562, defendant has made no allegations in this case that
Colony took any action to mislead or misinform Halprin. Rather, defendant merely contends that
Colony made no mention of the “Assault and Battery Exclusion” before Halprin signed the policy.
Doc. #38, ¶ 10. Because no facts indicate that anything was said or done to mislead Halprin, the
exception does not apply in the present case. See, e.g., Delk v. Go Vertical, Inc., 303 F. Supp.2d 94,
100–01 (D.Conn. 2004) (finding no evidence that the plaintiff had been misled or had been put off
his guard at the time when he signed the agreement at issue).
“Connecticut courts have repeatedly held that plaintiffs cannot escape the consequences
of a waiver into which they voluntarily entered merely by establishing that they did not read it.”
Delk, 304 F.Supp.2d at 99 (citing Fischer v. Rivest, No. X03CV000509627S, 2002 WL 31126288,
2002 Conn.Super. LEXIS 2778, at *31 (Conn. Super. Ct. Aug. 15, 2002)).
F.Supp.2d 107, 112 (D.Conn. 2003). See also generally 7 Perillo, Joseph M., Corbin on Contracts
§§ 29.8–29.12 (Rev. ed. 2002).
Thus, ignorance of and/or failure to read the terms of a written insurance policy does not
invalidate the policy’s terms. Although insurance policies generally contain numerous pages and
attachments, a prospective insured is obligated to read the contents of the policy prior to signing the
policy or risk contracting to what he deems “unknown” (i.e., unread) terms.
memorializing an insurance policy in writing would be a futile task: futile if an insured could
simply claim ignorance of any written provision to avoid its application. The law does not sanction
such an exercise.
In the case at bar, the “Assault and Battery Exclusion” is plain on the face of the “Colony
Policy. Doc. #27-2. As stated supra, the title appears in bold-faced, capital letters and the language
of the exclusion appears in type consistent with the remainder of the policy. It is hard to imagine
how one reading the policy might miss the assault and battery exclusion or deem it “buried” within
the policy. Martin Halprin, as agent for the defendant, had a duty to read the exclusion prior to
signing the Colony Policy. The fact that he may have missed the relevant pages does not void the
terms of the exclusion.
Furthermore, with respect to the defendant’s intent in entering an insurance contract, the
Connecticut Supreme Court has made clear that where the language in a policy is unambiguous, as
it is here, the Court must determine the intent of the parties “as expressed by the language of the
policy,” including what coverage the insured expected to receive and what the insurer was to
provide, as disclosed by the provisions of the policy.” Hartford Cas. Ins. Co. v. Litchfield Mut. Fire
Ins. Co., 274 Conn. 457, 463 (2005) (emphasis added). In such circumstances, “the intent of the
parties” for entering the insurance contract must be “derived from the four corners of the policy.”
Defendant counters, however, that the language of the assault and battery exclusion “is not
perfectly clear” because “[n]owhere in the policy is the word ‘person’ defined.” Doc. #37, p. 6.
Defendant thus argues that “person” in the assault and battery exclusion could not have actually
meant “any person,” but must have meant someone who was under the control of the defendant
landlord – i.e., not a trespasser, such as Hill allegedly was in the Catwalk parking lot at the time of
the shootings at issue. Id., p. 6. Otherwise, defendant contends, “the ‘protection’ offered under the
policy is simply a sham.” Id.
The Court disagrees.
First, the language of the exclusion is unambiguous. Unless one
subjects the policy’s language to torture, the word “person” is clearly not “susceptible of two
interpretations” in the “assault and battery” exclusion.15 The policy excludes coverage for damages
or expenses due to ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury’ arising
out of or resulting from: . . . Assault and Battery committed by any person.” Doc. #27-2, p. 18
(emphasis added). “Person,” which has a natural and ordinary meaning of “human being” or
“individual,” is preceded and explicitly modified by the adjective “any.”16 Clearly, “person” in that
context means “any person,” which suggests “person” without restriction – i.e., every person and/or
Cf. Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004) (explaining that “[w]hen the
words of an insurance contract are, without violence, susceptible of two interpretations, that which
will sustain the claim and cover the loss must, in preference be adopted . . .).
See Black’s Law Dictionary (9th ed. 2009) (defining person as “[a] human being”).
Second, similar language, excluding assault and battery by listed persons and “any other
person,” has been upheld as unambiguous and enforceable on two occasions by the Connecticut
Supreme Court. See Clinch, 110 Conn. App. at 40 (“examining the words of the exclusions at issue
in this case and according the words of the policies’ exclusions their natural and ordinary meaning,
we conclude that, as in Kelly, it was the intent of the parties, the defendant and the insured, to
exclude all assaults and batteries from coverage”)(emphasis added), aff’d, 293 Conn. 774, 777-78
(2009); Kelly, 223 Conn. at 37 (“The exclusion clause is not ambiguous. The words at issue do not
have multiple definitions.”).
Defendant also argues that there was “a lack of consideration” for the Colony Policy because
there was no express reduction of premium related to the assault and battery exclusion. Doc. #37,
p. 6 (“there is no . . . recitation [of reduced premiums] with respect to the exclusion for assault and
battery;” and “in the absence of consideration, an executor promise is unenforceable”). In support
of this argument , defendant cites the opening phrase of the exclusion clause for “assault and battery”
in Clinch v. Generali -U.S. Branch, 110 Conn. App. at 36 n.3 (stating that “[i]n consideration of the
reduced premium charge, it is understood that this insurance does not apply to bodily injury, personal
injury or property damage arising out of assault or battery”).
Rather than conceding that it received value for the coverage provided by the Colony Policy,
Moreover, the language of the exclusion itself demonstrates that “person” was not
restricted to those within the control of the defendant because that language explicitly excluded
from coverage “[t]he use of any force to protect persons or property whether or not the “ bodily
injury” or “property damage” was intended from the standpoint of the insured or committed by or
at the direction of the insured.” Doc. #27-2, Ex. B, p. 18, , § 1 (¶-5). From the face of the
language, defendant’s control of the actor and intent or lack thereof with respect to commission
of the assault or battery are irrelevant for purposes of the exclusion.
defendant focuses solely on the assault and battery exclusion to argue that, unless there was a
premium deduction for this particular exclusion, defendant received no consideration for its
bargain.18 However, defendant fails to cite, nor is the Court aware of, any authority rendering the
terms of an insurance policy exclusion invalid due to the insurer’s failure to itemize a corresponding
reduction in premium. Furthermore, the Colony Policy contains numerous exclusions in addition
to the “Assault and Battery Exclusion,” and none of these exclusions mentions a resulting reduction
in premium.19 Defendant does not contest the validity of these other exclusions. Moreover, the
Connecticut Supreme Court has examined and upheld as valid an assault and battery exclusion
which contained no language regarding consideration or reduced premiums. Kelly, 223 Conn. at
In sum, defendant has failed to present any facts, circumstances, or law to bar application
of or invalidate the“assault and battery” exclusion. The language of the exclusion is unambiguous
Defendant makes much of the special election form regarding exclusion of coverage for
“Certified Acts of Terrorism,” noting with dissatisfaction that there was no such special form for
“assault and battery” to provide defendant with notice of the latter exclusion. Doc. #37, p. 1-2, &
n.1; see also Doc. #27-2, p. 10-11 (“Certified Acts of Terrorism and Other Acts of Terrorism
Exclusion”). However, the election form regarding terrorism is the direct result of federal statute,
the Terrorism Risk to Insurance Act of 2002 (“TRIA”), Pub.L. 107–297, 116 Stat. 2322. As Judge
Denny Chin explained, “The TRIA prohibits exclusions for certain ‘Acts of Terrorism’ from
insurance policies for a limited time period during which insurers were required to notify their
insured of the availability of and rates for insurance coverage for “Acts of Terrorism.’” Omni
Berkshire Corp. v. Wells Fargo Bank, N.A., 307 F.Supp.2d 534, 537 (S.D.N.Y. 2004). The TRIA
has no bearing on the “assault and battery” exclusion at issue. In the absence of a federal or state
statute requiring a specific form with respect to an “assault and battery” exclusion, defendant’s
See Doc. #27-2, p. 13 (nuclear energy liability exclusion), p. 16 (hazardous materials
exclusion), p. 17 (“miscellaneous” exclusions); p. 20 (employment-related practices exclusion),
p. 21 (absolute auto, aircraft and watercraft exclusions), p. 40 (war liability exclusion), & p. 42
(fungi or bacteria exclusion).
and plain in its meaning. Upon the signing and acceptance of the Colony Policy by Halprin or on
its behalf, full knowledge of the policy’s terms and conditions are imputed to Halprin and are
binding upon it, including the assault and battery exclusion.
If the Myrick Action contains
allegations that fall within the assault and battery exclusion, plaintiff is entitled to judgment that it
has no duty to defend as a matter of law. See Fed. R. Civ. P. 56(c).
Insurer’s Duty to Defend Under Connecticut Law - Determined by the
Allegations in the Underlying Complaint
Under the governing law of Connecticut, the Connecticut Supreme Court has indicated that
an insurer’s duty to defend is determined by the allegations contained in the underlying complaint.
Hartford Cas. Ins. Co. v. Litchfield Mutual Fire Ins., 274 Conn. 457, 463 (2005). The Connecticut
Supreme Court in Hartford Cas. Ins. Co. thus summarized as follows:
In construing the duty to defend as expressed in an insurance policy, [t]he obligation
of the insurer to defend does not depend on whether the injured party will
successfully maintain a cause of action against the insured but on whether he has, in
his complaint, stated facts which bring the injury within the coverage. If the latter
situation prevails, the policy requires the insurer to defend, irrespective of the
insured’s ultimate liability. . . . It necessarily follows that the insurer's duty to
defend is measured by the allegations of the complaint. . . . Hence, if the
complaint sets forth a cause of action within the coverage of the policy, the insurer
274 Conn. at 463 (emphasis added; internal citations and quotations omitted); see also Stamford
Wallpaper Co. v. TIG Ins., 138 F.3d 75, 79 (2d. Cir. 1998) (the existence of a duty to defend is based
solely on the information and allegations contained “within the four corners of the complaint”).
Whether the plaintiff has a duty to defend depends on whether, in light of the policy
language, the complaint in the underlying action alleges conduct for which coverage was provided.
Imperial Cas. and Indem. Co. v. State, 246 Conn. 313, 323 (1998). See also Missionaries of the
Co. of Mary, Inc. v. Aetna Cas. & Sur. Co., 155 Conn. 104, 110 (1967). “The duty to defend an
insured arises if the complaint states a cause of action which appears on its face to be within the
terms of the policy coverage. Because the duty to defend has a broader aspect than the duty to
indemnify . . . , [i]f an allegation . . . falls even possibly within the coverage, then the insurance
company must defend the insured.” Imperial Casualty and Indem. Co., 246 Conn. at 323-24
(internal quotations and citations omitted; emphasis in original). Accord West Haven v. Commercial
Union Ins. Co., 894 F.2d 540, 544 (2d Cir.1990) (“The general rule is [that] if an allegation of the
complaint falls even possibly within the coverage, then the insurance company must defend the
insured.”) (citations and internal quotation marks omitted) (applying Connecticut law).20
“On the other hand, if the complaint alleges a liability which the policy does not cover, the
insurer is not required to defend.” Community Action for Greater Middlesex County, Inc. v. Am.
Alliance Ins., 254 Conn. 387, 399 (2000). See also QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn.
343, 354 (2001); Springdale Donuts, Inc. v. Aetna Cas. & Sur. Co., 247 Conn. 801, 807-08 (1999);
Smedley Co. v. Employers Mut. Liab. Ins. Co., 143 Conn. 510, 517 (1956). That is also the square
holding of the Second Circuit in Stamford Wallpaper Co., 138 F.3d at 79 (construing Connecticut
See also Community Action for Greater Middlesex County, Inc. v. Am. Alliance Ins.
Co., 254 Conn. 387, 398 (2000) (“the insurer’s duty to defend is measured by the allegations of the
complaint . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy,
the insurer must defend”); Flint v. Universal Mach. Co., 238 Conn. 637, 646 (1996) (“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.”); Keithan v. Massachusetts Bonding & Ins. Co., 159
Conn. 128, 138 (1970) (“an insurer’s duty to defend . . .is determined by reference to the allegations
contained in the [underlying] complaint” ); Clinch, 110 Conn. App. at 34 ( “it is the claim which
determines the insurer’s duty to defend”).
In reviewing the complaint, Connecticut courts have long “eschewed the notion that
pleadings should be read in a hypertechnical manner.” Clinch v. Generali-U.S. Branch, 110 Conn.
App. 29, 37 (2008), aff’d, 293 Conn. 774, 777-78 (2009). Thus, the Court must read the complaint
“in a manner that advances substantial justice,” construing it “reasonably” to contain all that it may
“fairly mean.” 110 Conn. App. at 37. On the other hand, “it must not be contorted in such a way
so as to strain the bounds of rational comprehension.” Id.
In the present case, the Court finds the case of Clinch v. Generali-U.S. Branch particularly
helpful in interpreting the scope of an “assault and battery” exclusion when the complaint contains
allegations of negligence. Id. In that action, the Connecticut Supreme Court affirmed per curiam
the Connecticut Appellate Court’s decision that an insurer had no duty to indemnify its policyholder
in an underlying action based on assault and battery exclusions contained in both the insurer’s
general liability and liquor liability policies. As in the underlying Myrick Action, the plaintiff in
Clinch was a restaurant patron who was injured in an altercation that took place on the premises of
a restaurant. Specifically, the plaintiff therein alleged that, first inside the restaurant and then, upon
ejection into the parking lot, he was struck in the head by three men who were under the influence
Plaintiff Clinch commenced an action against the restaurant, including its financial backers
and owners, which then tendered the claim to the restaurant’s liability insurer, Generali-U.S.
Branch. The insurer denied coverage and refused to defend. The trial court rendered judgment in
favor of the plaintiff against the insurer and one of its employees in the amount of $320,609.85 plus
In particular, plaintiff alleged that he was struck in the back of his head, causing him to
fall, strike the ground, and suffer further injuries. Clinch, 110 Conn. App. at 30.
costs. Because judgment was not satisfied within thirty days after it was rendered, plaintiff thereafter
proceeded directly against the insurer, pursuant to Connecticut’s direct action statute, Conn. Gen.
Stat. § 38a-321, as a judgment creditor subrogated to the rights of the insured. The court in the
direct statute action granted summary judgment in favor of the insurer, finding that the relevant
policies’ “assault and battery” exclusion operated to exclude coverage.
Plaintiff Clinch appealed, arguing that one of the counts in his complaint, when read in
isolation, did not fall within the exclusion. Specifically, Clinch noted that in one count he alleged
that the restaurant was not maintained in a reasonably safe condition, and reasoned that in
consequence his complaint did not allege that all his injuries were caused by being punched or
struck. Plaintiff further argued that he did not use the terms “assault” and/or “battery” in his
complaint and that the language of the “assault and battery” exclusion was ambiguous because the
terms “assault” and “battery” were not defined. The appellate court rejected all three arguments,
holding that one must read the complaint as a whole. In so doing, the only cause of action alleged
was for injuries arising from an assault and battery resulting from the insured’s negligence.22
Accordingly, the appellate court held that the “assault and battery” exclusion in both the general
liability policy and the liquor liability policy precluded plaintiff’s recovery.
Clinch petitioned the Connecticut Supreme Court for certiorari review of the Appellate
Court’s ruling. The Connecticut Supreme Court upheld the Connecticut Appellate Court’s entry of
The Connecticut Appellate Court also clarified that the policies’ failure to define the
terms “assault” and “battery” did not render the policies ambiguous. “In examining the words of
the exclusions at issue in this case and according the words of the policies’ exclusions their natural
and ordinary meaning,” the court “conclude[d] that . . . it was the intent of the parties, the defendant
and the insured, to exclude all assault and batteries from coverage.” 110 Conn. App. at 40 (emphasis
summary judgment for the insurer in its entirety, stating that the “issue [on appeal] was resolved
properly in the Appellate Court’s concise and well reasoned opinion.” 293 Conn. at 777. Moreover,
“[b]ecause that opinion fully addresse[d] all arguments” raised on appeal, the Supreme Court
“adopt[ed] it as a proper statement of the issue and the applicable law concerning that issue.” Id.
(emphasis added). The Connecticut Supreme Court thus affirmed that all of plaintiff’s claims of
negligence against the insured arose from assault and battery within the meaning of the insured’s
policies’ exclusion for assault and battery. Moreover, the failure to define the terms “assault” and
“battery” in the exclusion did not render the policy ambiguous.
Accordingly, the “assault and
battery” exclusion in the policy relieved the insurer of any duty to defend the insured against any of
the plaintiff’s allegations of negligence. Id. at 777-78. See also Kelly v. Figueiredo, 223 Conn. 31,
37 (1992) (with respect to underlying action for damages from alleged stabbing by intoxicated patron
in restaurant, the court “could say with a high degree of certainty that the exclusion clause [for
assault and battery in the policy at issue] was intended to exclude all assaults and batteries from
As the Connecticut Appellate Court concluded in Clinch, referencing Kelly v.
In examining the words of the exclusions at issue in this case and according the
words of the policies’ exclusions their natural and ordinary meaning, we conclude
that, as in Kelly, it was the intent of the parties, the defendant and the insured, to
exclude all assaults and batteries from coverage. Thus, we conclude that the assault
and battery exclusions are not ambiguous and that, having already determined that
the plaintiff’s claims were ones alleging assault and battery, the exclusions are
applicable to the plaintiff’s claims. Therefore, the defendant had no duty to defend,
and the court properly rendered summary judgment in favor of the defendant.
110 Conn. App. 29, 40 (2008) (emphasis added), aff’d, 293 Conn. 774, 777-78 (2009) (per curiam).
Myrick Action Allegations
In the underlying Myrick action, Myrick, Reed, and Perelli allege that, at approximately 1:40
a.m. on June 11, 2008, Halprin and Catwalk failed to prevent Hill from shooting and fatally injuring
Ensley Myrick and Joseph Reed, business invitees, in the parking lot of the Catwalk restaurant.
Doc. #27-1, Myrick Complaint, First to Fourth Counts, ¶¶ 18-21. Moreover, the Myrick Action
plaintiffs allege that Halprin and Catwalk failed to prevent Hill from shooting at Anthony Perelli,
also a business invitee in the Catwalk parking lot that evening, causing Perelli to sustain various
injuries while fleeing for his life.24 Id., Third & Fourth Counts, ¶¶ 18-22.
Specifically, the Myrick Action plaintiffs maintain that Halprin and Catwalk negligently
failed to secure, maintain, supervise, and/or inspect Catwalk’s parking lot, to prevent the illegal sale
and consumption of narcotics and alcohol in said parking lot, and to properly train Catwalk’s
security personnel. Id., First to Third Counts, ¶ 21; Fourth to Sixth Counts, ¶ 22. Those plaintiffs
assert that, as the result of negligence, Halprin and Catwalk failed to “stop and prevent physical
violence” (i.e., the shootings by Hill) in the Catwalk parking lot on June 11, 2008. Id., First to Third
Counts, ¶ 21(l); Fourth to Sixth Counts, ¶ 22(l). Furthermore, plaintiffs seek damages directly from
Hill for the shootings at issue. Id., Seventh to Twelfth Counts. They contend that Hill either
“intentional[ly]” or by “negligence and carelessness” shot at Ensley Myrick, Joseph Reed, and
Anthony Perelli in the Catwalk parking lot on June 11, 2008.
Id., Seventh to Twelfth Counts,
In light of the Connecticut Supreme Court’s ruling in Clinch v. Generali-U.S. , 293 Conn.
Such alleged injuries to Perelli include “[m]uscular sprains and strains;” “[b]ruises,
contusions, lacerations;” and “[f]ear of death and grievous bodily harm.” Doc. #27-1, Ex. A (Myrick
Complaint), Third Count ¶ 22(a)-(c), p. 27.
774, 777-78 (2009) (per curiam) the allegations of the Myrick plaintiffs, when viewed as a whole,
seek damages for injuries arising from an assault and battery which allegedly resulted from the
insured’s negligence. Namely, the Myrick plaintiffs seek recovery for the shooting deaths of the
Myrick and Reed decedents and injuries to Perelli, all resulting from alleged gunshots by Hill on
June 11, 2008. The fact that these plaintiffs base their action on the negligence of Halprin in its
control and management of the premises does not alter the primary cause of all such damages –
assault and battery, that is, gunshots by Hill. Consequently, pursuant to the “Assault and Battery
Exclusion” of the policy at issue, Colony has no duty to defend Halprin in the Myrick action for
damages resulting from the alleged gunshots by Hill on June 11, 2008, in the parking lot of the
No Duty to Indemnify
Plaintiff Colony also seeks a declaratory judgment that it has no duty to indemnify Halprin
for any judgment arising from the claims in the underlying action. Doc. #1, Doc. #26, p.3.
Connecticut law holds that the duty to defend is much broader than the duty to indemnify. Middlesex
Mut. Assur. Co. v. Rand, No. CV 9576644, 1996 WL 218698, at *3 (Conn. Sup. Ct. April 4, 1996).
See also Clinton v. Aetna Life and Sur. Co., 41 Conn. Supp. 560, 563 (Conn. Sup. Ct. 1991) (“The
It is the allegations in the Myrick Action complaint that are determinative and not
the merits of those allegations. The key is what the plaintiffs in the underlying action might be able
to prove, not will prove. The ultimate success of the underlying action is irrelevant for determining
whether the insurer has the duty to defend. See, e.g., QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn.
343, 352 (2001) (for purposes of determining insurer’s duty to defend, the allegations in the
complaint prevail – i.e., it is irrelevant whether “facts outside the four corners of [the complaint] .
. . indicate that the claim may be meritless or not covered”); see also Imperial Cas. and Indem. Co.
v. State, 246 Conn. 313, 323-24 (1998) (“Because [t]he duty to defend has a broader aspect than the
duty to indemnify and does not depend on whether the injured party will prevail against the
insured.”) (internal quotations and citation omitted).
duty to defend is both separate and distinct from, and broader than, the duty to indemnify.”)(citing
Martin v. Brunzelle, 699 F. Supp. 167, 168 (N.D. Ill.1988). It thus follows that where no duty to
defend exists, there is no duty to indemnify. DaCruz v. State Farm & Cas., 268 Conn. 675, 688
(2004) (“Because the duty to defend is significantly broader than the duty to indemnify, where there
is no duty to defend, there is no duty to indemnify, given the fact that the duty to defend is broader
than the duty to indemnify.”) (quoting QSP, Inc. v. Aetna Cas.& Sur. Co., 256 Conn. 343, 382
(2001)). Accord EAD Metallurgical, Inc. v. Aetna Cas. & Sur. Co., 905 F.2d 8, 11 (2d Cir.1990)
(no duty to defend necessarily means no duty to indemnify). Because Colony has no duty to defend
Halprin in the underlying action, it also has no duty to indemnify Halprin for any damages arising
from that action.
In the case at bar, there is no genuine issue of material fact and plaintiff is entitled to
judgment as a matter of law. The parties entered into a contract for insurance covering the Catwalk
Property and that policy contained a clear and unambiguous exclusion for all bodily injuries and
property damages resulting from “Assault and Battery committed by any person.” Doc. #27-2, p.
18. Applying the natural and ordinary meaning of that exclusion provision, a reasonable insured
would clearly comprehend that any liability resulting from assault and battery was not covered by
Moreover, an examination of the four corners of the complaint in the underlying state action
reveals that the complaint sets forth no possible claim that is covered under the language of the
Colony Policy. That complaint seeks damages that all arise out of the alleged firing of gunshots by
Markease Hill, which resulted in the deaths of the Myrick and Reed decedents and injuries to
Perelli. In so firing, Hill has allegedly committed “ assault and battery,” for which coverage is
explicitly excluded under the Colony Policy.
Having found no genuine issue of material fact warranting a trial of this matter, the Court
GRANTS Plaintiff’s Motion for Summary Judgment (Doc. #26) and, accordingly, shall enter a
declaratory judgment in Colony’s favor as a matter of law.
The Court thus hereby DECLARES and ADJUDGES that Plaintiff Colony Insurance
Company has no duty to defend or indemnify defendant Jack A. Halprin, Inc. in Rochelle Myrick,
Administratrix of the Estate of Ensley E. Myrick, et al. v. Jack A. Halprin, Inc., et al., Docket No.
NNH-CV10-5033401-5. The Clerk is directed to enter judgment for the plaintiff and close the file.
It is So Ordered.
Dated: New Haven, Connecticut
July 11, 2012
/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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