Allstate Insurance Company v. Martinez et al
Filing
86
ORDER granting 82 Motion for Default Judgment; granting 83 Motion for Summary Judgment. See attached memorandum of decision. The Clerk is directed to enter judgment in favor of Allstate and close this case. Signed by Judge Vanessa L. Bryant on 12/10/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALLSTATE INSURANCE COMPANY,
PLAINTIFF,
v.
VALDECIR R. MARTINEZ,
MARCELLO MARTINEZ
MARTA OLIVERA
JACQUELINE TANDAYAMO
NANCY TANDAYAMO AND
RICARDO TANDAYAMO,
DEFENDANTS.
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: CIVIL ACTION NO. 3:11cv574(VLB)
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:
:
: DECEMBER 10, 2012
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:
:
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MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. #83]
This is a declaratory judgment action filed by the Plaintiff Allstate
Insurance Company’s (“Allstate”) pursuant to the Declaratory Judgment Act, 28
U.S.C. § 2201, and Fed. R. Civ. P. 57. Before the Court is Allstate’s motion for
summary judgment which seeks a judgment declaring that a certain homeowners
insurance policy issued by Allstate extends no coverage for the claims asserted
by the Defendants Jacqueline Tandayamo, Nancy Tandayamo and Ricardo
Tandayamo’s (hereinafter the “Tandayamo Defendants”) against Marta Olivera,
Valdecir Martinez and Marcello Martinez (hereinafter the “Allstate Insureds”) in a
related case filed by them in the Superior Court of the State of Connecticut. For
the reasons stated hereafter, Allstate’s motion for summary judgment is granted
and the Court finds that Allstate has no duty to defend or indemnify Marta
Olivera, Valdecir Martinez or Marcello Martinez in the state court action brought
by the Tandayamo Defendants.
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Background
Allstate filed its complaint seeking declaratory judgment on April 12, 2011.
[Dkt. #1]. On November 7, 2011, Allstate moved to dismiss the counterclaims
filed by the Tandayamo Defendants. [Dkt. #57]. In response, the Tandayamo
Defendants moved to amend their counterclaims, moved for attorney fees and
moved to dismiss Allstate’s action for declaratory judgment. The Court granted
Allstate’s motion to dismiss and denied the Tandayamo Defendant’s motion to
amend, motion for attorney fees and motion to dismiss Allstate’s action. [Dkt.
#78].
On May 31, 2012, Allstate moved for summary judgment.
Defendants have failed to respond to Allstate’s motion.
To date,
As a result of
Defendants’ failure to file a response, the Court deems the assertions made in
Allstate’s Local Rule 56(a)(1) statement as true and admitted. LeSane v. Hall’s
Security Analyst, Inc., 239 F.3d 206, 210-211 (2d Cir. 2001) (holding where plaintiff
had failed to respond to summary judgment motion, the Court should deem the
assertions made in defendant’s Rule 56 statement as admitted and then rule on
the merits of the summary judgment motion.); U.S. v. Cirami, 535 F.2d 736, 739
(2d Cir. 1976).
Facts
Allstate’s 56(a)(1) statement which the Court deems admitted, sets forth the
following relevant facts. This declaratory judgment action arises out of an
underlying personal injury lawsuit brought by Jacqueline Tandayamo, Ricardo
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Tandayamo and Nancy Tandayamo arising out of a motor vehicle accident
involving Jacqueline Tandayamo. [Dkt. #84, Local Rule 56(a) Statement, ¶1].
Jacqueline Tandayamo, Ricardo Tandayamo and Nancy Tandayamo brought suit
against Valdecir Martinez, Marcello Martinez and Marta Olivera by way of a
complaint dated March 9, 2009. Id.
The complaint alleges the following facts. On or about March 10, 2007 at
approximately 11:36 p.m. Jacqueline Tandayamo was a passenger in an
automobile driven by James Kristy. Id. at ¶2. Shortly before the accident, Kristy
had been a guest at a party hosted by Valdecir Martinez, Marcello Martinez and
Marta Olivera at their residence located at 530 Golden Rod Avenue in Bridgeport
Connecticut (hereinafter, the “Premises”). Id. at ¶5. The Complaint further alleges
that Kristy consumed alcoholic beverages on the Premises The Complaint the
party. Id. at ¶4
The Complaint alleges that Kristy failed to traverse a curve in the road,
causing his motor vehicle to go over the shoulder of the road, across the front
lawn of a home, pass between a utility pole and support cable, on to another front
lawn where it went over a large rock and an evergreen shrub before crashing into
a tree thereby causing the plaintiff, Jacqueline Tandayamo to sustain and suffer
the injuries and losses. Id. at ¶6. Tandayamo alleges that the crash and her
resultant injuries and losses were caused by the Kristy’s negligence and notes
that he was a minor at the time of his alcohol consumption and accident. Id. at ¶7.
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Critically, the complaint alleges that a substantial factor in causing the
crash and the plaintiff Jacqueline Tandayamo’s injuries, was the negligent
conduct of Valdecir Martinez, Marcello Martinez and Marta Olivera in one or more
of the following ways, whereby they (a) hosted, or allowed a minor in their care,
supervision and/or control to host, a party at which alcoholic beverages were
served; (b) allowed a party on the premises over which they retained control
where they knew, or should have known, that alcoholic beverages were being
served and/or that minors were in attendance; (c) failed to provide adequate adult
supervision and/or protection for said party and/or for the individuals who were in
attendance at said party; (d) failed to properly supervise the party and/or the
individuals in attendance when they knew alcoholic beverages were being
consumed; (e) allowed individuals they knew or should have known were minor
children to consume alcoholic beverages on the premises over which they
retained control; (f) allowed alcoholic beverages to be consumed at the premises
over which they retained control by individuals who were known to be or should
have been known to be intoxicated; (g) failed to notify the Kristy’s parents of his
intoxicated state; (h) failed to warn Kristy and others of the dangers of driving
while intoxicated; (i) failed to confiscate Kristy’s car keys to prevent him from
driving while intoxicated state; and/or (j) allowed the min to drive when they
knew, or should have known of the dangers of driving. Id. at ¶8
Allstate issued to Marta Olivera and Valdecir Martin a/k/a Valdecir Martinez,
as named insureds, Deluxe Homeowners Policy No. 9 19 541224 04/05, insuring
the Premises from April 5, 2006 to April 5, 2007 (hereinafter referred to herein as
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the “homeowners policy” or “the policy”). Id. at ¶12. The homeowner’s policy
included family liability protection with a coverage limit of $300,000 each
occurrence. Id. at ¶13.
Respecting Coverage X, the homeowners policy, under Section II - Family
Liability and Guest Medical Protection, contains the following provision:
Coverage X
Family Liability Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy,
Allstate will pay damages which an insured person becomes legally
obligated to pay because of bodily injury or property damage arising
from an occurrence to which this policy applies, and is covered by
this part of the policy.
We may investigate or settle any claim or suit for covered damages
against an insured person. If an insured person is sued for these
damages, we will provide a defense with counsel of our choice, even
if the allegations are groundless, false or fraudulent. We are not
obligated to pay any claim or judgment after we have exhausted our
limit of liability.
Id. at ¶14.
The homeowner’s policy also includes under Section II - Family Liability
and Guest Medical Protection the following exclusion:
Losses We Do Not Cover Under
Coverage X:
5. We do not cover bodily injury or property damage arising out of
the ownership, maintenance, use, occupancy, renting, loaning,
entrusting, loading or unloading of any motor vehicle or trailer.
However, this exclusion does not apply to:
(a) a motor vehicle in dead storage or used exclusively on an insured
premises;
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(b) any motor vehicle designed principally for recreational use off
public roads, unless that vehicle is owned by an insured person and
is being used away from an insured premises;
(c) a motorized wheel chair;
(d) a vehicle used to service an insured premises which is not
designed for use on public roads and not subject to motor vehicle
registration;
(e) a golf cart owned by an insured person when used for golfing
purposes;
(f) a trailer of the boat, camper, home or utility type unless it is being
towed or carried by a motorized land vehicle;
(g) lawn and garden implements under 40 horsepower;
(h) bodily injury to a residence employee.
Id. at ¶15.
In addition, the homeowner’s policy, under Section II - Family Liability and
Guest Medical Protection, contains the following exclusion:
Losses We Do Not Cover Under
Coverage X:
7. We do not cover bodily injury or property damage arising out of:
a) the negligent supervision by an insured person of any person; or
b) any liability statutorily imposed on any insured person arising
from the ownership, maintenance, use, occupancy, renting, loaning,
entrusting, loading or unloading of any aircraft, watercraft, motor
vehicle or trailer which is not covered under Section II of this policy.
Id. at ¶16.
The homeowner’s policy, under Section II - Family Liability and Guest
Medical Protection, contains the following exclusion, as amended by Policy
Endorsement AP730-1: In Section II, Family Liability and Guest Medical
Protection, under Losses We Do Not Cover Under Coverage X, Exclusion 1 is
replaced by the following:
We do not cover bodily injury or property damage intended by, or
which may reasonably be expected to result from the intentional or
criminal acts of the insured person. This exclusion applies even if:
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a) such bodily injury or property damage is of a different kind or
degree than that intended or reasonably expected; or
b) such bodily injury or property damage is sustained by a different
person than intended or reasonably expected.
This exclusion applies regardless of whether or not the insured
person is actually charged with, or convicted of, a crime. This
exclusion does not apply with respect to the interest of an insured
person not participating in these acts.
Id. at ¶17.
The homeowner’s policy, under Section II - Family Liability and Guest
Medical Protection, contains the following provision:
Coverage Y
Guest Medical Protection
Losses We Cover Under Coverage Y:
Allstate will pay the reasonable expenses incurred for necessary
medical, surgical, x-ray and dental services; ambulance, hospital,
licensed nursing and funeral services; and prosthetic devices, eye
glasses, hearing aids, and pharmaceuticals. These expenses must
be incurred and the services performed within three years from the
date of an occurrence causing bodily injury to which this policy
applies, and is covered by this part of the policy.
Each person who sustains bodily injury is entitled to this protection
when that person is:
1. on the insured premises with the permission of an insured person;
or
2. off the insured premises, if the bodily injury:
a) arises out of a condition on the insured premises or immediately
adjoining ways;
b) is caused by the activities of an insured person or a residence
employee;
c) is caused by an animal owned by or in the care of an insured
person; or
d) is sustained by a residence employee.
Id. at ¶18.
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Respecting Coverage Y, the homeowner’s policy, under Section II – Family
Liability and Guest Medical Protection, also contains the following exclusion:
Losses We Do Not Cover Under
Coverage Y:
(5) We do not cover bodily injury arising out of the ownership,
maintenance, use, occupancy, renting, loaning, entrusting,
loading or unloading of any motor vehicle or trailer. However,
this exclusion does not apply to:
a) a motor vehicle in dead storage or used exclusively on an
insured premises;
b) any motor vehicle designed principally for recreational use
off public roads, unless that vehicle is owned by an insured
person and is being used away from an insured premises;
c) a motorized wheel chair;
d) a vehicle used to service an insured premises which is not
designed for use on public roads and not subject to motor
vehicle registration;
e) a golf cart owned by an insured person when used for
golfing purposes;
f) a trailer of the boat, camper, home or utility type unless it is
being towed or carried by a motorized land vehicle;
g) lawn and garden implements under 40 horsepower;
h) bodily injury to a residence employee.
Id. at ¶20.
The homeowner’s policy, under Section II, Family Liability and Guest
Medical Protection contains the following exclusion, as amended by Policy
Endorsement AP730-1: In Section II, Family Liability and Guest Medical
Protection, under Losses We Do Not Cover Under Coverage Y, Exclusion 1 is
replaced by the following:
1. We do not cover bodily injury intended by, or which may
reasonably be expected to result from the intentional or
criminal acts of the insured person. This exclusion applies
even if:
a) such bodily injury is of a different kind or degree than
that intended or reasonably expected; or
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b) such bodily injury is sustained by a different person than
intended or reasonably expected.
This exclusion applies regardless of whether or not the
insured person is actually charged with, or convicted of, a
crime. This exclusion does not apply with respect to the
interest of an insured person not participating in these acts.
Id. at ¶¶22-23.
Legal Standard
Summary judgment should be granted “if the movant shows that 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(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106
(2d Cir.2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir.2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying on
the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
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judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011. Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,
summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
Analysis
“Connecticut law has made clear that ‘[t]here is no question that a
declaratory judgment action is a suitable vehicle to test the rights and liabilities
under an insurance policy.’” Vermont Mut. Ins. Co. v. Ciccone, No.3:09-cv-445
(CSH), 2012 WL 5199688, at *3 (D.Conn. Oct. 22, 2012) (quoting St. Paul Fire &
Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380 (1990)). In addition,
“Connecticut courts have specifically held that summary judgment is an
appropriate vehicle by which to determine whether an insurer owes an insured a
duty to defend on the basis of an insurance policy, on the rationale that the
‘[c]onstruction of a contract of insurance presents a question of law for the
court.’” Id. at 4 (quoting Hansen v. Ohio Cas. Ins. Co., 239 Conn. 537, 543, 687
A.2d 1262 (1996)).
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“Connecticut applies the general rules of contract interpretation to
insurance policies, and enforces them in accordance with the parties’ intent, as
derived from the plain and ordinary meaning of the policy’s terms.” Vermont,
2012 WL 5199688, at *6 (internal quotation marks and citations omitted). “It is
well settled that ‘exclusions from insurance policy coverage are given strict
construction. Any ambiguous words or phrases in an insurance policy are
construed strictly against the insurance company and in favor of coverage. 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.” Colony
Ins. Co. v. Jack A. Halprin, Inc., No.3:10-cv-1059(CSH), 2012 WL 2859085, at *8 (D.
Conn. July 11, 2012) (internal quotation marks and citations omitted).
Under Connecticut law, “[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.” Hartford Cas.
Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 463 (2005) (quotation
marks, alterations, and citation omitted). The Connecticut Supreme Court has
explained that “[i]n 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
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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.’” Id. (quoting Board of Ed. v. St. Paul Fire &
Marine Ins. Co., 261 Conn. 32, 40-41 (2002)). Therefore, “[i]f an allegation of the
complaint falls even possibly within the coverage, then the insurance company
must defend the insured.” Id. (internal quotation marks and citation omitted,
emphasis in original). The “question of whether an insurer has a duty to defend
its insured is purely a question of law, which is to be determined by comparing
the allegations [in the underlying] complaint with the terms of the insurance
policy,” Cmty. Action for Greater Middlesex County, Inc. v. American Alliance Ins.
Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). It “is axiomatic that no insurer is
bound to provide indemnification or defense beyond the scope of the coverage
described in the insurance contract, the policy.” St. Paul Fire, 22 Conn.App. at
380–81 (citation omitted).
The duty to defend is considerably broader than the duty to indemnify
DaCruz v. State Farm Fire and Cas. Co., 268 Conn. 675, 687 (2004)). “In contrast
to the duty to defend, the duty to indemnify is narrower: while the duty to defend
depends only on the allegations made against the insured, the duty to indemnify
depends upon the facts established at trial and the theory under which judgment
is actually entered in the case. Thus, the duty to defend is triggered whenever a
complaint alleges facts that potentially could fall within the scope of coverage,
whereas the duty to indemnify arises only if the evidence adduced at trial
establishes that the conduct actually was covered by the policy. Because the
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duty to defend is significantly broader than the duty to indemnify, where there is
no duty to defend, there is no duty to indemnify.” Id. at 688 (internal quotation
marks and citations omitted) (emphasis in the original).
Allstate argues that it has no duty to defend and therefore no duty to
indemnify Valdecir Martinez, Marcello Martinez and Marta Olivera in the
underlying lawsuit because the homeowner’s policy excludes coverage for injury
and damages arising out of the use of any motor vehicle. Here, the underlying
action seeks damages for bodily injuries resulting from a motor vehicle accident
which fall squarely within the policy’s exclusion. The Connecticut Supreme Court
has held that “for liability for an accident or an injury to be said to “arise out of”
the “use” of an automobile for the purpose of determining coverage under the
appropriate provisions of a liability insurance policy, it is sufficient to show only
that the accident or injury “was connected with,” “had its origins in,” “grew out
of,” “flowed from,” or “was incident to” the use of the automobile, in order to
meet the requirement that there be a causal relationship between the accident or
injury and the use of the automobile.” Hogle v. Hogle, 167 Conn. 572, 577 (1975).
Here the relevant terms of the policy clearly and unambiguously exclude from
coverage any liability arising out of the use of any motor vehicle. Because all of
the Tandayamo Defendants’ claims against the Allstate Insureds arise out of the
use of Kristy’s motor-vehicle and there is clearly a causal relationship between
the motor-vehicle accident and Jacqueline Tandayamo’s injuries, the Court
concludes that the Allstate has no duty to defend or indemnify the Allstate
Insureds in the underlying action.
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Allstate argues in the alternative that even if the motor vehicle exclusion
was not applicable, there would be no duty to defend or indemnify on the basis of
several other exclusions including notably the unambiguous and relevant
exclusion for negligent supervision. While it appears these other exclusions
would also apply, the Court need not address them as it is clear that there is no
duty to defend and therefore no duty to indemnify on the basis of the
unambiguous motor-vehicle exclusion.
Allstate has also filed a motion for default judgment against Valdecir
Martinez, Marcello Martinez, and Marta Olivera who failed to file a responsive
pleading or otherwise defend this action. [Dkt. #82]. “[A] party's default is
deemed to constitute a concession of all well pleaded allegations of liability....”
Greyhound Exhibitgroup, Inc. v. E.L. U.L. Realty Corp., 973 F.2d 155, 158 (2d
Cir.1992). For the same reasons as discussed above, the Court finds that the
policy does not provide coverage and therefore grants Allstate’s motion for
default judgment.
Conclusion
Based upon the above reasoning, Allstate’s [Dkt. #83] motion for summary
judgment is GRANTED . The Court finds that Allstate has no duty to defend or
indemnify the Allstate Insureds against the claims by the Tandayamo Defendants
in the underlying action. Allstate’s [Dkt. #82] motion for default judgment is also
GRANTED for these same reasons. The Clerk is directed to enter judgment in
favor of Allstate and close this case.
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IT IS SO ORDERED.
_______/s/_ ________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: December 10, 2012
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