New Haven v. Chartis Specialty Insurance Company

Filing 76

RULING granting 27 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 3/8/2012. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CITY OF NEW HAVEN,
Plaintiff,
v.
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
Defendant.

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CIVIL ACTION NO.
3:10-CV-02047 (JCH)

MARCH 8, 2012

RULING RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 27)
In this insurance coverage dispute the plaintiff, the City of New Haven (“New
Haven”), seeks (1) a declaratory judgment that an excess liability policy issued by the
defendant, Insurance Company of the State of Pennsylvania (“ISOP”), covers certain
claims asserted against New Haven and that certain exclusions ISOP relied upon to
deny coverage are void and unenforceable; and (2) reformation of its insurance
contract with ISOP to delete the exclusions ISOP relied upon to deny coverage. ISOP
now moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment on
New Haven’s claims (Doc. No. 27). For the reasons stated herein, ISOP’s Motion (Doc.
No. 27) is granted.

1

I.

BACKGROUND1
A.

The Accident and the Underlying Lawsuits

This insurance coverage dispute arises out of an automobile accident between
two New Haven police officers on September 9, 2008 (“the accident”). That evening,
police officers Dario Aponte and Diane Gonzalez were on duty and responded in police
vehicles to the same emergency call. L.R. 56(a)(1) Stmt. ¶ 3. While on route to the
emergency, the two vehicles collided in an intersection. Id. ¶ 4. Officer Aponte died as
a result of the collision, and Officer Gonzalez suffered extensive injuries. Id. ¶ 5; L.R.
56(a)(1) Stmt. Ex. 2 (the “Gonzalez Compl.”), ¶ 7.
The Estate of Officer Aponte (the “Aponte Estate”) and Officer Gonzalez, through
her two conservators, have both commenced litigation against each other and against
New Haven in Connecticut state court. L.R. 56(a)(1) Stmt. ¶ 6. In each action, the
plaintiff officer alleges that the defendant officer’s negligence caused the accident. Id. ¶
7. In each action, the plaintiff officer also named New Haven as a defendant. Id. ¶¶ 6,
9.
Gonzalez and New Haven settled the Aponte Estate’s claims in its state court
action, as well as the Aponte Estate’s workers’ compensation claims against New
Haven, pursuant to a settlement agreement executed on May 11, 2011, and a
stipulation approved by a compensation commissioner on April 25, 2011. L.R. 56(a)(2)
Stmt. Ex. 3 (the “Roche Aff.”), Ex. A (the “Settlement Agreements”) at 7, 13. Gonzalez’

1

Unless otherwise cited, the following facts are based upon the uncontested portions of the
parties' Local Rule 56(a) Statem ents, or are disputed facts asserted by New Haven and as to which
evidence has been placed in the record.

2

claims against the Aponte Estate and New Haven remain pending. Gonzalez v.
Aponte, No. NNH-CV10-6014415-S (Conn. Super. filed Sept. 9, 2010) (trial scheduled
for February 2013).2
B.

New Haven’s Insurance Coverage

ISOP issued a “Special Excess Liability Policy for Public Entities” to New Haven
with coverage effective August 12, 2008, through September 30, 2009 (the “Policy”).
L.R. 56(a)(2) Stmt. ¶ 12; see generally L.R. 56(a)(2) Stmt. Ex. 5 (the “Haller Aff.”), Ex. A
(the “Policy”). The accident therefore occurred within the policy period. L.R. 56(a)(2)
Stmt. ¶¶ 3, 12.
The Policy provides, “We shall pay you, or on your behalf, the ultimate net loss,
in excess of the retained limit, that the insured becomes legally obligated to pay by
reason of liability imposed by law or assumed under an insured contract because of
bodily injury or property damage arising out of an occurrence during the Policy Period.”
Policy at 10.3 The retained limit is $1 million. Id. at 1.
The Policy defines “you” and “your” to mean “the Named Insured(s) shown in the
Declarations and any other person(s) or organization(s) qualifying as an insured under
this Policy.” Id. at 10. The named insureds are New Haven and the City of New Haven
Board of Education. Id. at 1. The Policy includes as an “insured,” “[a]ny of your

2

This court takes judicial notice of the docket entries in the underlying state court actions. See
Anderson v. Rochester-Genesee Regional Transp. Authy., 337 F.3d 201, 205 n.4 (2d Cir. 2003).
3

The page num bered “1" of the Policy appears on page 10 of Exhibit A to the Haller Affidavit.
This ruling cites to the relevant page of Exhibit A as though Exhibit A as a whole were consecutively
num bered.

3

employees, servants, or volunteers while acting within the course and scope of their
employment or duties as volunteers.” Id. at 21.
The Policy includes a fellow employee exclusion, however, which provides that
ISOP “will not defend or pay under this Policy for claims or suits against you . . .
[a]rising out of the liability of your employees for bodily injury to another of your
employee(s) injured in the course of his or her employment.” Id. at 22. The Policy also
includes a workers’ compensation exclusion, which provides that ISOP “will not defend
or pay under this Policy for claims or suits against you . . . [f]or which you, or any carrier
as your insurer, may be held liable under any workers’ or unemployment compensation
law, disability benefits law or any similar law.” Id.
C.

This Insurance Coverage Lawsuit

A notice of claim was filed purportedly on behalf of the Aponte Estate and
Gonzalez. Haller Aff. Ex. B, at 1. In a letter dated July 30, 2010, ISOP’s claims
administrator, Chartis Claims, Inc. (“Chartis”), advised New Haven that ISOP had
received this notice of claim, but it had determined that the Policy did not cover New
Haven’s liability arising out of the accident. Id. at 1-3. The letter further stated ISOP’s
conclusion that the fellow employee exclusion and the workers’ compensation exclusion
both operated to exclude coverage for liability arising out of the accident. Id. at 2. After
subsequently receiving the Gonzalez Complaint, Chartis, in a letter dated August 30,
2010, reiterated ISOP’s coverage determination stated in the July 30 letter. Haller Aff.
Ex. C, at 1.
On November 30, 2010, New Haven filed this action against an improper party,
Chartis Specialty Insurance Company (“Chartis Insurance”). Doc. No. 12 at 1-3. With
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leave to do so, New Haven filed an Amended Complaint against both Chartis Insurance
and ISOP. See Am. Compl. ¶¶ 1-40.4 New Haven subsequently dismissed its claims
against Chartis Insurance voluntarily. Doc. No. 20.
In its Amended Complaint, New Haven claims that the two exclusions which
ISOP relied upon to deny coverage (1) violate public policy because they violate Conn.
Gen. Stat. Ann. § 31-293a; (2) breach ISOP’s contract with New Haven; and, (3) are the
product of mutual mistake. Am. Compl. ¶¶ 34-40. Based on these claims, New Haven
seeks (1) a declaratory judgment that the fellow employee exclusion and workers’
compensation exclusion are void and unenforceable and that coverage exists for New
Haven’s liability arising out of the accident, and (2) reformation of the Policy to delete
the fellow employee exclusion and workers’ compensation exclusion. Am. Prayer for
Relief ¶¶ 1-2.
II.

STANDARDS OF REVIEW
A.

Summary judgment

Summary judgment is appropriate only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). No genuine issue of
material fact exists, and summary judgment is therefore appropriate, when “the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party.”

4

New Haven’s Am ended Com plaint separately num bers the allegations of the claim s against
Chartis Insurance and the claim s against ISOP. This court refers to the allegations of the Am ended
Com plaint as if they were consecutively num bered.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A
material fact is one which “might affect the outcome of the suit under the governing
law,” and an issue is genuine when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). But “[c]onclusory allegations will not suffice to create a genuine
issue.” Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178
(2d Cir.1990).
B.

Insurance Contracts

In Connecticut,5 “the proper construction of a policy of insurance presents a
question of law” that is proper for the court to determine on a motion for summary
judgment. See QSP, Inc. v. Aetna Cas. and Sur. Co., 256 Conn. 343, 352 (2001). A
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.” Id. at 351
(internal quotations omitted); see also R.T. Vanderbilt Co., v. Continental Cas. Co., 273
Conn. 448, 462 (2005). The court examines the policy “in its entirety.” QSP, Inc., 256
Conn. at 351. “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.” R.T. Vanderbilt Co., 273 Conn. at 462. In contrast, if the terms
of the insurance policy are ambiguous, the court must construe “any ambiguity in the
terms . . . in favor of the insured.” QSP, Inc., 256 Conn. at 352. A policy term is

5

Neither party challenges Connecticut law as the source of substantive law in this m atter.

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ambiguous if, “without violence,” the term is “susceptible to two [equally reasonable]
interpretations. . . .” R.T. Vanderbilt Co., 273 Conn. at 462.
III.

DISCUSSION
ISOP argues that the Policy’s fellow employee exclusion validly bars coverage

for New Haven’s liability arising out of the accident. This court agrees.6 This court
further concludes that no factual basis exists for New Haven’s claim for reformation of
the Policy so as to delete the fellow employee exclusion. Accordingly, with no material
issues of fact in dispute, summary judgment for ISOP is proper.
A.

The Underlying Claimants’ Status as “insured[s]”

As a threshold matter, New Haven argues that this court should understand this
declaratory judgment action as asserting both New Haven’s claimed right to coverage
under the Policy and claims for coverage under the Policy which New Haven asserts on
behalf of the Aponte Estate and Gonzalez, claiming that they are “insured[s]” under the
Policy. Mem. in Opp’n to Def. Mot. for Summ. J. at 4-9; see Policy at 21. This court
concludes that New Haven has not established a sufficient legal or factual basis for
asserting claims for coverage on behalf of the Aponte Estate and Gonzalez.
Accordingly, New Haven cannot assert those claims on this record and cannot rely on
the claimed status of the Aponte Estate and Gonzalez as insureds under the Policy to
defeat summary judgment.

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Because this court concludes that no genuine issue of m aterial fact exists as to whether ISOP
properly denied coverage based on the fellow em ployee exclusion, this Ruling does not address ISOP’s
other argum ents in support of its Motion for Sum m ary Judgm ent.

7

New Haven does not identify any legal basis for its claimed right to assert that
the Policy covers the Aponte Estate and Gonzalez on their behalf in this action when
neither is a party here.7 Although the Aponte Estate and Gonzalez, based on their
plausible claims to “insured” status, would have standing to state a claim for coverage
under the Policy, Wilcox v. Webster Ins., Inc., 294 Conn. 206, 216-17 (2009), New
Haven points to no comparable legal authority authorizing it to assert such claims on
their behalf. Without identifying a plausible legal basis for asserting claims for coverage
on behalf of the Aponte Estate and Gonzalez in an action to which neither is a party,
New Haven may not make those claims for coverage here, and the merits of their
potential claims cannot preclude summary judgment in ISOP’s favor.8
Even if this court liberally construes New Haven’s summary judgment
submissions to argue that it may pursue claims against ISOP on behalf of the Aponte

7

Although New Haven m oved to join the Aponte Estate to this action and the Aponte Estate
sim ultaneously m oved to intervene, the court (Dorsey, J.) denied both Motions. City of New Haven v. Ins.
Co. of the State of Pa., No. 3:10-cv-2047 (JCH), Doc. No. 62 (D. Conn. Dec. 13, 2011) (consolidated
ruling on pending m otions).
8

Neither party has apprised this court that the Aponte Estate nor Gonzalez has m ade a claim for
coverage under the Policy in the underlying state court actions or in any other judicial proceeding.
Accordingly, it appears that no court has reached the m erits of any claim for coverage under the Policy
which the Aponte Estate or Gonzalez m ight assert, and this court expresses no view on the m erits of any
such claim .

8

Estate and Gonzalez because it is the real party in interest by virtue of the combined
effect of subrogation or assignment of rights9 against the Aponte Estate and Gonzalez
and New Haven’s obligation to indemnify10 the Aponte Estate and Gonzalez pursuant to
Conn. Gen. Stat. Ann. § 7-465, the argument fails. New Haven has not pled that it
acquired any contractual right of subrogation or that it received any assignment of rights
from the Aponte Estate or Gonzalez,11 see Am. Compl. ¶¶ 21-40, nor does the evidence
in the record tend to demonstrate a contractual subrogation right or an assignment of
rights which might defeat summary judgment, see Settlement Agreements at 1-17.
Similarly, New Haven did not plead that the equities in these circumstances give rise to
a right of equitable subrogation from the Aponte Estate or Gonzalez, see Am. Compl.

9

It is not clear that New Haven, as a prim ary self-insurer, could acquire a subrogation right from
the Aponte Estate or Gonzalez at all. The well-established anti-subrogation rule prevents an insurer from
acquiring a subrogation right against its own insured. Allstate Ins. Co. v. Palum bo, 296 Conn. 253, 274-75
(2010). Courts have split on the question whether the anti-subrogation rule applies to self-insured entities.
Com pare Farm ers Ins. Exch. v. Enterprise Leasing Co., 281 Va. 612, 620, 708 S.E.2d 852 (2011) (holding
that anti-subrogation rule does not apply to self-insured entities) with ELRAC, Inc. v. W ard, 96 N.Y.2d 58,
77-78, 748 N.E.2d 1 (2001) (holding that anti-subrogation principles apply to both self-insurers and
insurance com panies). The Connecticut Suprem e Court has yet to address this issue.
Because this court concludes that, even construing New Haven’s subm issions to assert a right of
subrogation, New Haven has not pleaded or produced evidence of a sufficient factual basis for any
subrogation right, this court need not reach the issue whether New Haven could acquire such a right at all.
10

The parties dispute whether Conn. Gen. Stat. Ann. § 7-465 actually requires that New Haven
indem nify the Aponte Estate or Gonzalez for any liability to their respective fellow em ployee resulting from
the accident. Although the Connecticut Suprem e Court has suggested in obiter dictum that Conn. Gen.
Stat. Ann. § 7-465 does require indem nification in these circum stances, see Keane v. Fischetti, 300 Conn.
395, 404-405 (2011), it has never squarely held so with respect to the current version of Conn. Gen. Stat.
Ann. § 7-465. Because this court concludes that New Haven m ay not, on this record, assert claim s for
coverage on behalf of the Aponte Estate and Gonzalez, this court need not resolve the question.
11

“Conventional subrogation can take effect only by agreem ent and has been said to be
synonym ous with assignm ent.” W asko v. Manella, 269 Conn. 527, 532 (2004) (quoting W estchester Fire
Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 370-71 (1996)).

9

¶¶ 21-40,12 nor did it present any evidence tending to suggest that such an equitable
right exists here sufficient to defeat summary judgment. Absent any factual basis in the
pleadings or the summary judgment record which could support New Haven’s claimed
right to step into the shoes of the Aponte Estate or Gonzalez to litigate their status as
insureds under the Policy, New Haven may not rely on such status to defeat summary
judgment.
Because New Haven has not articulated a plausible legal basis for asserting the
Aponte Estate’s and Gonzalez’ coverage claims on their behalf, and because New
Haven neither pleaded nor presented evidence which could support its claimed right to
litigate the Policy’s coverage for the Aponte Estate and Gonzalez on their behalf, New
Haven cannot raise those claims on this record. Accordingly, if the Policy covers New
Haven’s liability arising out of the accident at all, it does so solely based on New
Haven’s own claims for coverage under the Policy.
B.

Fellow Employee Exclusion

The Policy excludes coverage “for claims or suits against [New Haven]13 arising
out of the liability of [New Haven’s] employees for bodily injury to another of [New
Haven’s] employee(s) injured in the course of his or her employment.” Policy at 22. It
12

In Connecticut, “[t]here is no general rule to determ ine whether a right of [equitable] subrogation
exists. Thus, ordering subrogation depends on the equities and attending facts and circum stances of
each case. . . . The determ ination of what equity requires in a particular case, the balancing of the
equities, is a m atter for the discretion of the trial court.” Allstate Ins. Co. v. Palum bo, 296 Conn. 253, 260
(2010) (internal citations and quotations om itted).
13

The Policy uses the term “you,” defined as “the Nam ed Insured(s) shown in the Declarations
and any other person(s) or organization(s) qualifying as an insured under this Policy.” Policy at 10. The
only relevant “Nam ed Insured” here is New Haven. Because this Court has already concluded that New
Haven m ay not, on this record, assert claim s for coverage on behalf of the Aponte Estate and Gonzalez,
their potential status as “insured[s]” is irrelevant. Accordingly, New Haven is the only relevant entity in this
case to which the Policy refers in using the term s “you” and “your.”

10

is undisputed that both Aponte and Gonzalez were employees of New Haven at the
time of the accident and were injured in the course of their employment. Accordingly,
the exclusion applies to New Haven’s liability arising out of this accident. New Haven
appears to concede as much,14 but argues that ISOP cannot enforce the exclusion
because it violates Conn. Gen. Stat. Ann. § 31-293a and is therefore void as against
public policy. Pl.’s Supp. Br. in Opp’n re Def. Mot. for Summ. J. at 7. This court
concludes that the exclusion is valid and, accordingly, that the Policy does not cover
New Haven’s liability arising out of the accident.
Section 31-293a of the Connecticut General Statutes codifies the exclusivity of
the workers’ compensation remedy for an employee’s on-the-job injuries except in
particular circumstances. The statute expressly reserves the employee’s right to bring
an action against a fellow employee “based on the fellow employee's negligence in the
operation of a motor vehicle.” Conn. Gen. Stat. Ann. § 31-293a; accord Conn. Gen.
Stat. Ann. § 7-465 (reserving the right of municipal employees to do the same). Section
31-293a further prohibits primary automobile insurance policies submitted to the
Commissioner of Motor Vehicles as proof of financial responsibility pursuant to Conn.
Gen. Stat. Ann. § 14-112(a) from excluding “any agent, representative[,] or employee”
of the owner of the automobile from coverage. Conn. Gen. Stat. Ann. § 31-293a;

14

To the extent that New Haven argues that this court should interpret the exclusion not to deny
coverage because New Haven reasonably expected that the Policy would cover its liability arising out of
the accident, see Pl.’s Supp. Br. in Opp’n re Def. Mot. for Sum m . J. at 7, this court rejects the argum ent.
The exclusion is clear and unam biguous. See Policy at 22 (“W e will not defend or pay under the Policy for
claim s or suits against [New Haven] . . . [a]rising out of the liability of [New Haven’s] em ployees for bodily
injury to another of [New Haven’s] em ployee(s) injured in the course of his or her em ploym ent."). New
Haven could not have reasonably expected that the Policy, despite this exclusion, would nonetheless
cover its liability resulting from a claim or suit which arose out of an accident between autom obiles driven
by two of its em ployees acting in the course of their em ploym ent.

11

Palmieri v. Winnick, 10 Conn. App. 18, 21-22 (1987) (interpreting an earlier version of
Conn. Gen. Stat. Ann. § 31-293a).
By its terms, the statute only applies to insurance policies “accepted as proof of
financial responsibility of the owner and as evidence of the insuring of such person,”
that is, primary automobile insurance policies. Conn. Gen. Stat. Ann. § 31-293a. The
statute therefore does not apply to other types of insurance, such as comprehensive
general liability policies, Palmieri, 10 Conn. App. at 21-22, or excess or umbrella
policies, Universal Underwriters Ins. Co. v. Paradis, 285 Conn. 342, 345-47 (2008).
Such insurance policies may therefore exclude fellow employee motor vehicle
negligence claims without violating Section 31-293a. See Paradis, 285 Conn. at 34547; Palmieri, 10 Conn. App. at 21-22; see also Universal Underwriters Ins. Co. v.
Paradis, 50 Conn. Supp. 486, 496-501 (Super. 2006), aff’d 285 Conn. 342 (2008).
Here, it is undisputed that the Policy is a “Special Excess Liability Policy for
Public Entities.” Policy at 10 (emphasis added). It is also undisputed that the Policy
provides for a $1 million retained limit which must be exhausted before the Policy will
cover a loss, id. at 10, 17, and that this $1 million retained limit exceeds the minimum
coverage required by Conn. Gen. Stat. Ann. § 14-112(a). Section 31-293a therefore
does not apply to the Policy, and the Policy may permissibly exclude motor vehicle
negligence claims against a fellow employee from coverage.15 See Paradis, 285 Conn.

15

To the extent that New Haven argues that the co-em ployee exclusion violates public policy
because “[ISOP] cannot . . . argue that the [P]olicy would not respond had Officer Aponte been a civilian.
Therefore, [ISOP] should not benefit from a situation where Officer Aponte was a police officer,” Mem . in
Opp’n to Def. Mot. for Sum m . J. at 20-21, this court rejects the argum ent. The Policy’s unam biguous
fellow em ployee exclusion reflects that New Haven and ISOP bargained for just such an outcom e, and
New Haven’s self-insurance up to $1 m illion m ore than satisfies the public policy interest in m aintaining
insurance coverage for em ployees with potential personal liability in these circum stances.

12

at 345-47. Accordingly, the fellow employee exclusion is valid, and the Policy excludes
New Haven’s liability arising out of the accident from coverage.
C.

Reformation

New Haven argues that, if the Policy excludes coverage here, then the Policy
was the product of mutual mistake because ISOP issued the Policy assuming that New
Haven was immune from liability arising out of the accident. Mem. in Opp’n to Def. Mot.
for Summ. J. at 36-37, 39. On this basis, New Haven seeks reformation of the Policy to
delete the fellow employee exclusion upon which ISOP relied to deny coverage.16 See
id.
“Reformation is not granted for the purpose of alleviating a hard or oppressive
bargain, but rather to restate the intended terms of an agreement when the writing that
memorializes that agreement is at variance with the intent of both parties. Equity
evolved the doctrine because an action at law afforded no relief against an instrument
secured by fraud or as a result of mutual mistake.” Lopinto v. Haines, 185 Conn. 527,
532 (1981); see also Harlach v. Metropolitan Prop. and Liab. Ins. Co., 221 Conn. 185,
191 (1992) (holding that “application of the equitable principle of reformation [is] not
proper” without “claim []or proof of a mutual mistake, fraud or inequitable conduct on the
part of either party”).
“The burden of proof on the issue of reformation is upon the party seeking it.”
Lopinto, 185 Conn. at 535. In order to satisfy this burden, the party seeking reformation
16

New Haven also seeks reform ation to delete the workers’ com pensation exclusion, which ISOP
also advances as an independent reason the Policy does not cover New Haven’s liability arising out of the
accident. Because this court has already held that the fellow em ployee exclusion, standing alone, validly
excludes New Haven’s liability arising out of the accident from coverage, this court need only address New
Haven’s reform ation claim with respect to the fellow em ployee exclusion.

13

must show its entitlement to the remedy by “clear, substantial, and convincing
evidence.” Id. at 534-35. Specifically, “[w]here fraud is absent, it must be established
that both parties agreed to something different from what is expressed in writing, and
the proof on this point should be clear so as to leave no room for doubt.” Id. at 535
(internal citations and quotations omitted).
Viewing the evidence in the light most favorable to New Haven for purposes of
deciding this motion, this court concludes that ISOP issued the Policy under the
mistaken belief that New Haven was immune from liability arising out of the accident.17
Pl.’s L.R. 56(a)(2) Stmt., Add’l Stmt. of Facts ¶ 3. Even if ISOP incorrectly assumed
that New Haven could not be liable based on claims arising out of the accident, New
Haven has not pointed to any legal authority which prohibits ISOP, or any other insurer,
from including a policy term which excludes, from coverage, liability from which its
insured is immune. Nor has New Haven articulated how this mistaken belief by ISOP-in New Haven’s immunity for claims of this type--prevented a meeting of the minds on
the fellow employee exclusion such that reforming the Policy by deleting the exclusion
is a proper remedy. If anything, the presence of the assumed-to-be-redundant fellow
employee exclusion reinforces, rather than undermines, the conclusion that the parties
unambiguously agreed that the Policy would not cover New Haven’s liability arising out

17

New Haven argues that this court should assum e as m uch for purposes of this Motion because
of ISOP’s purported discovery violations. Mem . in Opp’n to Def. Mot. for Sum m . J. at 39. This court
m akes this factual conclusion for purposes of this m otion based on the sum m ary judgm ent standard to
“constru[e] all evidence in the light m ost favorable to the non-m oving party,” Pabon v. W right, 459 F.3d
241, 247 (2d Cir. 2006), not based on any showing of a discovery violation. Judge Dorsey previously
denied New Haven’s Motion to Com pel, without prejudice, for failure to dem onstrate that the parties had
m ade a good faith effort to resolve the discovery dispute. City of New Haven v. Ins. Co. of the State of
Pa., No. 3:10-cv-2047 (JCH), Doc. No. 63 (D. Conn. Dec. 13, 2011). New Haven did not renew the
m otion and has m ade no showing that ISOP did not com ply with its discovery obligations.

14

of the accident. Even taking all of New Haven’s evidence on this point as true, New
Haven has not “established that both parties agreed to something different from what is
expressed in writing.” Lopinto, 185 Conn. at 535. No legal or factual basis therefore
exists to reform the Policy by deleting the fellow employee exclusion.
Accordingly, New Haven’s claim for reformation based on ISOP’s mistaken belief
that New Haven was immune from liability arising out of the accident fails as a matter of
law. No material factual dispute therefore remains for trial, and summary judgment for
ISOP on this claim is appropriate.
IV.

CONCLUSION
For these reasons, ISOP’s Motion (Doc. No. 27) is granted. The Clerk is

directed to close this case.
SO ORDERED.
Dated at Bridgeport, Connecticut, this 8th day of March, 2012.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

15