Peerless Insurance Company v. Clemens et al

Filing 34

ORDER granting 21 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 1/22/2013. (Gillenwater, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PEERLESS INSURANCE COMPANY,
Plaintiff,

:
:

V.

:

JOSEPH CLEMENS III, et al.,

:

Defendants.

Case No. 3:11-CV-1597 (RNC)

:
RULING AND ORDER

Plaintiff Peerless Insurance Company brings this diversity
case seeking a declaratory judgment that it has no obligation
under a homeowner's policy to defend or indemnify defendants
Joseph Clemens III, a minor, and his parents, Joseph Clemens, Jr.
and Karen Clemens ("the insured defendants") in connection with a
lawsuit pending against them in state court.

See Jane Doe PPA v.

Joseph Clemens III, et al., Case No. HHDCV-11-5035534S (Conn.
Super. J.D. Hartford) ("the Doe case").

In the Doe case, the

minor plaintiff alleges that on a number of occasions when she
was a guest in the defendants' home she was sexually assaulted
and abused by Joseph Clemens III.

Peerless has moved for summary

judgment relying on, among other things, an exclusion in the
policy for claims "arising out of sexual molestation."

I agree

that this exclusion applies to all the claims in the Doe case and

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therefore grant the motion for summary judgment.1
I.

Background
In 2008, Peerless issued the policy in question for the

period December 20, 2008 to December 20, 2009.

In "Section II-

Personal Liability and Medical Payments to Others, Coverage EPersonal Liability," the policy provides:
If a claim is made or a suit is brought against an "insured"
for damages because of "bodily injury" or "property damage"
caused by an "occurrence" to which this coverage applies,
[Peerless] will:
1. Pay up to [Peerless's] limit of liability for the
damages for which the "insured" is legally liable. . .
. and
2. Provide a defense at [Peerless's] expense by counsel
of [Peerless's] choice, even if the suit is groundless,
false or fraudulent.2
The policy contains the following exclusions to the coverage
provided by Section II:
Coverage E- Personal Liability and Coverage F- Medical
Payments to Others do not apply to "bodily injury"
. . .
a. Which is expected or intended by the insured;
. . . [or]
k. Arising out of sexual molestation, corporal
punishment or physical or mental abuse.
The policy also contains an endorsement to Section II adding the
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This determination makes it unnecessary to consider
Peerless's other arguments.
2

The policy defines "bodily injury" as "Personal Injury .
. . [b]odily harm, sickness or disease, including required care,
loss of service and death that results." "Occurrence" is defined
as "an offense or accident, including continuous or repeated
exposure to substantially the same general harmful condition,
which results during the policy period in . . . 'bodily injury.'"

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following language:
Coverage E- Personal Liability, does not apply to:
g. "personal injury":
(1) Caused by a violation of a penal law or ordinance
committed by or with the knowledge or consent of an
"insured."
The operative complaint in the Doe case contains six counts.
Each count alleges that on various dates between July and
November 2009, the minor plaintiff was sexually assaulted and
abused by Joseph Clemens III while in the care of defendants
Joseph and Karen Clemens as a guest at their home.

The first

four counts are directed against Joseph Clemens III and refer to
the following torts: negligent assault and battery, reckless
assault and battery, general negligence, and negligent infliction
of emotional distress.

The remaining two counts allege that the

minor plaintiff's injuries were caused by various negligent acts
and omissions on the part of Joseph Clemens, Jr. and Karen
Clemens, including negligent failure to properly supervise their
son and the minor plaintiff.
II.

Summary Judgment
Summary judgment may be granted when there is no

genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

See

D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
Whether Peerless has a duty to defend and indemnify the
defendants in the Doe case "is purely a question of law, which is

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to be determined by comparing the allegations of [Doe's]
complaint with the terms of the insurance policy."

Community

Action for Greater Middlesex County, Inc. v. American Alliance
Ins. Co., 254 Conn. 387, 395 (2000) ("Community Action").
Accordingly, the issue is appropriately resolved on a motion for
summary judgment.

See Middlesex Ins. Co. v. Mara, 699 F. Supp.

2d 439, 444 (D. Conn. 2010); Electric Insurance v. Castrovinci,
No. 3:02cv1706, 2003 WL 23109149, at *3 (D. Conn. Dec. 10, 2003).
III.

Discussion
Peerless's duty to defend is determined by the facts alleged

in Doe's complaint, not the names of the torts referred to in the
various counts of her complaint.

Middlesex Mut. Assur. Co. v.

Favreau, CV02396760S, 2003 WL 22234621, at *7 (Conn. Super. Ct.
Sept. 17, 2003).

"If an allegation of the complaint falls even

possibly within the coverage, then the insurance company must
defend the insured.

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, 254 Conn. at 398-99

(citations and internal quotation marks omitted).

In deciding

whether the factual allegations of Doe's complaint fall within
the scope of the coverage, the determinative question is the
intent of the parties as disclosed by the provisions of the
policy.

Id. at 399.

The terms of the policy must be given their

natural and ordinary meaning.

Id.

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Any ambiguity is construed in

favor of the insureds taking into account the perspective of a
reasonable layperson in the position of a purchaser of the
policy.

Id. at 399-400.

But there must be an ambiguity that

allows for a construction in their favor.

Hansen v. Ohio

Casualty Ins. Co., 239 Conn. 537, 543-43 (1996).
Peerless contends that the policy language excluding
coverage for claims for damages "arising out of sexual
molestation" is unambiguous and applies to the facts alleged in
the Doe case.

The defendants respond that the policy is

ambiguous and should be construed against Peerless.

They also

contend that relevant facts have yet to be determined.
Peerless's position has strong support in Connecticut case law.
In Community Action, the Connecticut Supreme Court addressed
a coverage issue very much like the one here.

The issue there

was whether an insurer had a duty to defend the operator of a
preschool in a negligence action brought on behalf of a child who
had been sexually abused by other children while attending a
preschool program.

See Community Action, 254 Conn. at 389.

Like the policy in this case, the preschool operator's policy
excluded coverage for bodily injury "arising out of . . . abuse
or molestation . . . ."

Id. at 400.

The insured argued that the

terms "abuse" and "molestation" were ambiguous and the
allegations of the underlying complaint did not necessarily fall
within the scope of these terms.

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Id.

Rejecting both arguments,

the Court ruled that the policy exclusion for "abuse" and
"molestation" was clear and unambiguous as applied to unwanted
sexual contact.

Id. at 401.

In light of the decision in

Community Action, it must be concluded that the policy exclusion
for sexual molestation in this case is unambiguous and applies to
the sexual assaults and abuse alleged by Doe.
In the present case, the insureds make an additional
argument that was not addressed in Community Action: they contend
that the phrase "arising out of" is ambiguous.
however, Connecticut law is to the contrary.

Here again,
As Judge Eginton

observed in an analogous case:
Several Connecticut courts have had occasion to
interpret the phrase "arise out of" and "arising out
of" in the context of insurance policies. The
Connecticut Supreme Court instructs that liability for
accident or an injury arises out of an occurrence or
offense where the accident or injury "was connected
with," "had its origins in," "grew out of," "flowed
from," or "was incident to" the occurrence or offense.
OSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn.
343, 374 (2001). OSP, Inc. elaborated that the phrase
"arising out of" is usually interpreted as indicating a
causal connection. An exclusionary clause that uses
the phrase, "arising out of" precludes coverage for an
entire class of risks arising out of specified conduct,
and does not turn on the intent of the insured.
Covenant Insurance Company v. Sloat, 2003 WL 21299384
(Conn. Super. 2003).
Electric Insurance, 2003 WL 23109149 at *3.
Given the established meaning of the phrase "arising out of"
in the insurance context, causes of action sounding in negligence
and recklessness fall within a sexual molestation policy

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exclusion if they "have a clear causal connection to the alleged
molestation and the injuries arising therefrom."

Id.

In this

case, there is such a connection between each claim in the Doe
complaint and the alleged sexual assaults and abuse.

Each count

incorporates by reference the allegation that "Jane Doe was
sexually assaulted and abused by Joseph Clemens III at the
Clemens home."

In addition, each count recites that Jane Doe's

injuries were caused by Joseph Clemens III's "assault and
battery" or "sexual assaults and abuse."
IV.

Conclusion
Peerless's motion for summary judgment (Doc. 21) is hereby

granted.

The Clerk will enter a declaratory judgment stating

that Peerless has no duty under the homeowner's policy to defend
or indemnify the insured defendants with regard to any of the
claims in the Doe case.
So ordered this 22nd day of January 2013.

/s/RNC
Robert N. Chatigny
United Stated District Judge

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