Allstate Insurance Company v. Suchecki

Filing 25

ORDER granting Plaintiff's 15 Motion for Summary Judgment. See the attached memorandum of decision. The Clerk is directed to enter judgment in favor of the Plaintiff and to close the case. Signed by Judge Vanessa L. Bryant on 2/20/2014. (Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALLSTATE INSURANCE COMPANY
Plaintiff
v.
IWONA SUCHECKI, PPA P.S.
Defendant.

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CIVIL ACTION NO.
3:12-cv-01566(VLB)

February 20, 2014

MEMORANDUM OF DECISION GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Dkt. 15]

I.

Introduction

The Plaintiff, Allstate Insurance Company (“Allstate”), brings this declaratory
judgment action against Defendant, Iwona Suchecki (“Suchecki”), seeking to
avoid defending the Defendant in an underlying civil action brought in
Connecticut State Court. The Plaintiff has moved for summary judgment
pursuant to Fed. R. Civ. P. 56, asserting that there are no issues of material fact in
dispute and that the claims can be decided as a matter of law. For the following
reasons, the Plaintiff’s motion for summary judgment is GRANTED.
II.

Background

Allstate insured the Defendant and her minor son, P.S., under an Allstate
Deluxe Plus Homeowners Policy numbered 9 19 922684 08/25 (the “Policy”). [Dkt.
15-1, Local Rule 56(a)1 Statement of Material Facts in Support of Motion for
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Summary Judgment, ¶ 1; Dkt. 22, Defendant’s Response to Plaintiff’s Local Rule
56(A)(1) Statement, ¶ 1]. The policy period began on August 25, 2010 and the
premium period was from August 25, 2010 to August 25, 2011. [Dkt. 15-1, ¶ 2;
Dkt. 22 ¶ 2]. A civil complaint, dated February 1, 2012, was filed in the
Connecticut Superior Court, Judicial District of Hartford, and was assigned
docket number HHD-CV12-5036046-S (“hereinafter referred to as the “Doe Action”
or “Doe Complaint”), naming as defendants P.S. and his parents. [Dkt. 15-1, ¶ 3;
Dkt. 22, ¶ 3]. The Doe Complaint was brought by John Doe in his capacity as
parent and next friend of his daughter, Jane Doe, a minor plaintiff. [Dkt. 15-1, ¶ 4;
Dkt. 22, ¶ 4]. The Doe Complaint alleges that on March 24, 2011, the minor
defendant, P.S., and two other minor defendants were at Jane Doe’s mother’s
house and supplied Jane Doe with alcohol and marijuana in great enough
quantities to cause her to become intoxicated and/or impaired. [Dkt. 15-1, ¶¶ 7, 8;
Dkt. 22, ¶¶ 7, 8]. While inebriated, the complaint alleges that the three minor
defendants removed Jane Doe’s clothing, fondled her breasts, and attempted to
insert their genitalia into Jane Doe’s mouth. [Dkt. 15-1, ¶ 9; Dkt. 22, ¶ 9]. As a
result of the sexual assault, Jane Doe suffered emotional damage and a corneal
hemorrhage. [Dkt. 15-1, ¶ 10; Dkt. 22, ¶ 10].
The Doe Complaint contains nineteen counts, including, as to the Defendant
and her minor son, sexual assault claiming that P.S. “willfully and purposefully
sexually assaulted the minor plaintiff,” battery claiming that P.S. “intended to
touch or otherwise cause contact with the minor plaintiff in an offensive and
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harmful manner,” invasion of privacy claiming that P.S. “intentionally and
physically intruded on the minor plaintiff’s person,” negligent infliction of
emotional distress claiming that P.S. “created an unreasonable risk of causing
the minor plaintiff to experience emotional distress,” and negligent supervision
as to the Defendant and her husband for the actions of P.S. [Dkt. 15-5, Doe
Complaint, p. 5, 8, 10, 16, 20, 21]. The Doe Complaint seeks monetary damages
and costs from the Defendant. [Dkt. 15-1, ¶ 6; Dkt. 22, ¶ 6]. P.S. has denied all of
the claims in the Doe Action and avers that he was not present when the sexual
assault occurred. [Dkt. 23, Defendant’s Local Rule 56(a)(1) Statement, ¶¶ 8, 9, 10].
Allstate is currently providing a legal defense to the Defendant under a full
reservation of rights and defenses under the Policy. [Dkt. 15-1, ¶ 31; Dkt. 22, ¶
31]. The Policy provides, in relevant part:
Definitions used in this Policy
1. “Insured Person” means you and, if a resident of your household:
a) any relative; and
b) any dependent person in your care.
****
5. “Bodily injury” means physical harm to the body including
sickness or disease, and resulting death.
****
9. “Occurrence” means an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions, during the policy period, resulting in bodily injury or
property damage.
****

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Section II- Family Liability and Guest Medical Protection
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.
****
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage
intended by, or which may reasonably be expected to
result from the intentional or criminal acts or
omissions of, an insured person. This exclusion
applies even if:
a) such bodily injury or property damage is of a
different kind or degree than 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
such insured person is actually charged with, or
convicted of a crime.
****
7. We do not cover bodily injury or property damage
arising out of:
a) the negligent supervision by an insured person of
any person
****
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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
****
Losses We Do Not Cover Under Coverage Y:
1. We do not cover any bodily injury intended by, or
which may reasonably be expected to result from the
intentional or criminal acts or omissions of, an
insured person. This exclusion applies even if:
a) such a bodily injury is of a different kind or degree
than that intended or reasonably expected; or
b) such bodily injury is sustained by a different
person than intended or reasonably expected.
This exclusion applies regardless of whether or not
such insured person is actually charged with, or
convicted of a crime.
****
7. We do not cover bodily injury or property damage
arising out of:

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a) the negligent supervision by an insured person of
any person
[Dkt. 15-3, the Policy]. The Plaintiff now moves for summary judgment arguing
that there are no material facts in issue that would prevent the Court from ruling
as a matter of law on the declaratory judgment action.
III.

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) (citations and internal
quotation marks 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
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assertions that affidavits supporting the motion are not credible. At the summary
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(MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citations and
internal quotation marks 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, 720 (2d Cir. 2010).
A. Insurance Contract Interpretation
To rule on the issues presented in the Plaintiff’s motion for summary
judgment, the Court will need to interpret various contractual terms in the Policy.
The parties agree that Connecticut law governs the Policy, so this Court will
apply Connecticut law without addressing the issue.
“Insurance policy words must be accorded their ordinary and natural
meaning, and any ambiguity in the terms of the policy must be construed in favor
of the insured.” Elec. Ins. Castrovinci, No. 3:02cv1706(WWE), 2003 WL 23109149,
at *3 (D. Conn. Dec. 10, 2003) (citing Hansen v. Ohio Cas. Ins. Co., 239 Conn. 537,
542 (1996)).
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“An insurance policy is to be interpreted by the same
general rules that govern the construction of any written
contract . . . . In accordance with those principles, [t]he
determinative question is the intent of the parties, that
is, what coverage the . . . [insured] expected to receive
and what the [insurer] was to provide, as disclosed by
the provision of the policy . . . . If the terms of the policy
are clear and unambiguous, then the language, from
which the intention of the parties is to be deduced, must
be accorded its natural and ordinary meaning.”
New London Cnty. Mut. Ins. Co. v. Bialobrodec, 48 A.3d 742, 746 (Conn. App.
2012) (quoting Lancia v. State Nat’l Ins. Co., 41 A.3d 308, 312, cert. denied, 305
Conn. 904, 44 A.3d 181 (2012)). Furthermore, “[t]he question of whether an
insurer has a duty to defend its insured is purely a question of law. . . . 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.”
Id. (citations and internal quotation marks omitted). Accordingly, “it necessarily
follows that the insurer’s duty to defend is measured by the allegations of the
complaint.” Id. (citations and internal quotation marks omitted); see also Truck
Ins. Exch. v. Mager, No. 3:06cv1058(WWE), 2007 WL 3119531, at *2 (D. Conn. Oct.
22, 2007) (“The facts alleged in the underlying complaint determine whether an
insurer is obligated to defend or indemnify.” (citing Flint v. Universal Mach. Co.,
238 Conn. 637, 646, 679 A.2d 929 (1996)).
“[T]o prevail on its own motion for summary judgment for a declaratory
judgment that it has no duty to defend in the underlying action, the insurer must
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establish that there is no genuine issue of material fact either that no allegation of
the underlying complaint falls even possibly within the scope of the insuring
agreement or, even if it might, that any claim based on such an allegation is
excluded from coverage under an applicable policy exclusion.” New London
Cnty. Mut. Ins. Co., 48 A.3d at 745-46 (citations and internal quotation marks
omitted). Moreover, “[i]n 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.” DaCruz v. State
Farm Fire and Cas. Co., 846 A.2d 849, 858 (Conn. 2004) (citations and internal
quotation marks omitted). “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.” Id. (citations
and internal quotation marks omitted). Importantly, “[b]ecause 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.” Id. (citations and internal quotation marks
omitted).
The Plaintiff makes two arguments in support of its motion: first, it claims
that the alleged assault at issue in the civil case is not an “occurrence” as
defined in the Policy and, therefore, not covered by the Policy; and second, it

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argues that even if the assault in the civil case was an occurrence, it was
excluded from coverage because it was intentional in nature.
1. Whether the Incident was an Occurrence as Defined in the Policy
The Policy defines an “occurrence” as “an accident, including continuous or
repeated exposure to substantially the same general harmful conditions, during
the policy period, resulting in bodily injury or property damages.” The Plaintiff
argues that the facts in the Doe Complaint allege intentional conduct, which, by
definition, is not accidental, and, therefore, is not covered by the Policy.
Since an occurrence is an “accident” it necessarily means that to be an
“occurrence,” the action cannot be intended. Indeed other courts have held that
“[w]here the terms of the policy provide that coverage is triggered by an
‘occurrence’ that is defined as an ‘accident,’ coverage does not extend to an
insured’s intentional torts.” Truck Ins. Exch. v. Cherie Spada, Alison Yering,
3:06CV1060(AVC), 2007 WL 2071629, at *3 (D. Conn. July 16, 2007); see also
Middlesex Ins. Co. v. Mara, 699 F. Supp. 2d 439, 459 (D. Conn. 2010) (“The true
basis for the action is Mara’s many intentional acts of intimidation and
harassment. These acts were not by any means accidental, i.e., ‘occurrences’ as
defined in the policy.”). The Supreme Court has also held that the “term
‘accident’ is to be construed in its ordinary meaning of an ‘unexpected
happening.’” Commercial Contractors Corp. v. Am. Ins. Co., 202 A.2d 498, 504
(Conn. 1964). Therefore, “occurrence” as defined in the Policy does not include
intentional torts or other intended actions.
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In Allstate Ins. Co. v. Campagna, this Court held that a nearly identically
worded policy did not require the insurance company to defend the insured in an
underlying action alleging negligence, negligent infliction of emotional distress,
battery, and intentional infliction of emotional distress stemming from a physical
altercation initiated by the insured. Allstate Ins. Co. v. Campagna, No.
3:07cv00098(VLB), 2008 WL 4000564, at *1 (D. Conn. Aug. 27, 2008). Even though
the plaintiff in the underlying civil matter alleged negligent as well as intentional
causes of action, the Court noted that “[t]he same conduct [cannot] reasonably
be determined to have been both intentionally and negligently tortious . . . .
[I]ntentional conduct and negligent conduct, although differing only by a matter
of degree . . . are separate and mutually exclusive.” Id. at *3 (quoting DaCruz, 846
A.2d at 861). The Court held that there were no facts alleged in the complaint that
showed that the insured’s conduct was negligent, instead, the beating, which was
alleged to have been done “intentionally, willfully, wantonly and maliciously,”
was purposefully done and merely invoking the label “negligence” in a complaint
is insufficient to render the conduct at issue unintentional. Id.
Similarly, in Middlesex Ins. Co. v. Mara, the court held that the insurance
company had no duty to defend the insured in an underlying civil action in which
he was alleged to have committed a series of intimidating and harassing
behaviors resulting in both intentional-based claims, such as intimidation and
invasion of privacy, and negligent-based claims, such as negligent infliction of
emotional distress, because the policy excluded protection for intentional
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conduct. Middlesex Ins. Co., 699 F. Supp. 2d at 442. The court held that each
count in the complaint was based on the insured’s “intentional actions, falling
outside the coverage of” the policy. Id. at 453. “Moreover, the Ninth Count,
although captioned as ‘negligent infliction of emotional distress,’ is actually
based on a series of intentional, patently harmful acts” set forth elsewhere in the
complaint. Id. Accordingly, the complaint only alleged intentional conduct,
conduct that was not protected by the policy. Id.; see also United Nat. Ins. Co. v.
Tunnel, Inc., 988 F.2d 351, 354 (2d Cir. 1993) (affirming summary judgment for an
insurance company in a declaratory judgment action because a claim for battery
in New York could not be turned into a claim for negligence).
Here, the Doe Complaint alleges that after supplying the underlying plaintiff
with alcohol and drugs, the Defendant’s minor son with two other defendants
“removed the minor plaintiff’s clothing . . . [and] fondled the minor plaintiff’s
breasts and attempted to insert their genitalia into the minor plaintiff’s mouth.”
[Dkt. 15-5, ¶¶ 11-12]. Furthermore, “after causing the minor plaintiff to become
intoxicated and/or impaired, [the defendants] sexually assaulted the minor
plaintiff … [resulting] in a corneal hemorrhage.” [Id. at ¶ 13]. The complaint
alleges several counts against the Defendant’s son, including for sexual assault,
alleging that P.S. “willfully and purposefully sexually assaulted the minor
plaintiff,” for battery, alleging that P.S. “intended to touch or otherwise cause
contact with the minor plaintiff in an offensive and harmful manner,” and for
invasion of privacy, alleging that P.S. “intentionally and physically intruded on
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the minor plaintiff’s person.” [Id. at p. 5, 8, 10]. Even though the plaintiff added
counts for negligent infliction of emotional distress and negligent supervision, it
is clear from the factual predicate underlying the case that the conduct alleged
was intentional. Therefore, merely alleging a negligent cause of action is
insufficient to render the conduct at issue accidental.
The Defendant argues that even though the complaint in the underlying action
alleges intentional conduct, the Defendant denies those allegations. However, as
correctly admitted by the Defendant, “[t]he 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 of [the] complaint with the terms of the insurance
policy.” [Dkt. 21, Defendant’s Memorandum of Law in Opposition of Plaintiff’s
Motion for Summary Judgment, p. 7 (quoting Wetland v. Am. Equity Ins. Co., 267
Conn. 592 n.7, 840 A.2d 1158 (2004))]. Therefore, the Defendant’s valid defense is
of no concern at this juncture. Furthermore, even though sexual assault
involving two minors does not necessarily require intent to engage in the conduct
as an element of the offense in Connecticut, the complaint clearly alleges that the
actions by P.S. and his co-defendants were intentional. Therefore this Court is
not determining whether P.S. actually acted with intent, as the Defendant
correctly argues is inappropriate on summary judgment, but is comparing the
allegations in the complaint and the coverage under the Policy. Since it is the
complaint that controls, the allegations are sufficient to exclude the actions from
the definition of “occurrence” in the Policy.
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Even though this Court need not delve further into the record because the
complaint clearly alleges intentional conduct, reviewing the deposition transcript
of P.S. also shows that even though he denies the allegations, he was in fact
present for at least part of the assault. P.S. was asked if he “touch[ed] her
breasts?” He responded, “Yes.” [Dkt. 21-5, Deposition Transcript of P.S. dated
April 11, 2013, 18:9-10]. Therefore, it is clear that even looking at the defenses
planned in the underlying civil suit, the Defendant’s son admitted to at least
partial commission of the underlying offenses.
Finally, the Defendant argues that even if several of the counts in the
complaint are excluded from the Policy since they are based on intentional
conduct, the complaint also includes allegations of negligent conduct, which
triggers the Policy’s coverage. However, as discussed above, “merely describing
an action in terms of ‘negligence’ is of no consequence when the action itself
‘can only be deemed intentional.’” Middlesex Ins. Co., 699 F. Supp. 2d at 457
(quoting Middlesex Mut. Assur. Co. v. Rand, No. CV9576644, 1996 WL 218698, at
*2 (Conn. Sup. April 4, 1996)). “In other words, ‘[a] plaintiff by describing his or
her cat to be a dog, cannot simply by that descriptive designation cause the cat
to bark.’” Id. Therefore, since the factual allegations underlying the civil
complaint are ones of intentional conduct, not accidental, the Plaintiff has no
duty to defend the Defendant in this action. Furthermore, since the duty to
defend “is much broader than the duty to indemnify . . ., [i]t thus follows that
where no duty to defend exists, there is no duty to indemnify.” Id. (citations and
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internal quotation marks omitted). Accordingly, Allstate has no duty to indemnify
the Defendant in this action either.
2. Intentional Conduct is Excluded
The Policy also explicitly excludes from coverage “any bodily injury or
property damage intended by, or which may reasonably be expected to result
from, the intentional or criminal acts or omissions of, an insured person . . . [even
if the harm] is of a different kind or degree than that intended or reasonably
expected . . . [r]egardless of whether or not such insured person is actually
charged with, or convicted of a crime.” [Dkt. 15-1, ¶ 32; Dkt. 22, ¶ 32]. The Doe
Complaint alleges that P.S.’s actions were done willfully and intentionally. The
Supreme Court has held that in Connecticut, “[w]ilful [sic] misconduct is
intentional misconduct, and wanton misconduct is reckless misconduct, which is
the equivalent of wilful [sic] misconduct.” Dubay v. Irish, 542 A.2d 711, at n.8
(Conn. 1988) (citations and internal quotation marks omitted). Therefore, even
though all intentional actions might not be willful, all actions alleged to have been
willful must by definition be intentional. In this case, the Doe Complaint alleges
that P.S. acted willfully, purposefully, and intentionally in all of the counts related
specifically to him. While the Defendant is correct in pointing out that “in this
state an actionable assault and battery may be one committed wilfully [sic] or
voluntarily, and therefore intentionally; one done under circumstances showing a
reckless disregard of consequences; or one committed negligently,” Jane Doe
alleged facts showing that the battery in the complaint is the intentional kind, not
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one showing reckless disregard of consequences or negligence. Markey v.
Santangelo, 485 A.2d 1305, 1307 (Conn. 1985). Specifically, she alleged that P.S.
“intended to tough or otherwise cause contact with the minor plaintiff in an
offensive and harmful manner.” [Dkt. 15-5, p. 8]. Accordingly, for the same
reasons discussed above, the conduct is excluded from coverage because it was
intentional. Therefore, the Plaintiff is relieved from any duty to defend or
indemnify.
IV.

Conclusion

For the foregoing reasons, Plaintiff’s [Dkt. 15] Motion for Summary Judgment
is GRANTED.

IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: February 20, 2014

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