State Farm Fire & Casualty Co v. Mesniaeff et al

Filing 44

ORDER granting the Plaintiff's 27 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 3/21/2014. (Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

STATE FARM FIRE & CASUALTY CO.
Plaintiff,
v.
GREGORY MESNIAEFF and
ELIZABETH BURKE
Defendants.

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CIVIL ACTION NO.
3:12-cv-01675(VLB)

March 21, 2014

MEMORANDUM OF DECISION GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Dkt. 27]

I.

Introduction

The Plaintiff, State Farm Fire Casualty Company (“State Farm”), brings this
declaratory judgment action against Defendants, Gregory Mesniaeff (“Mesniaeff”)
and Elizabeth Burke (“Burke”), seeking to avoid defending and indemnifying
Mesniaeff in an underlying civil action proceeding 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

On December 2, 2011, Burke filed suit against Mesniaeff in the Connecticut
Superior Court, Judicial District of Litchfield, captioned Elizabeth Burke v.
1

Gregory Mesniaeff, CV12-6005879. [Dkt. 29, Plaintiff’s Local Rule 56(a)1
Statement in Support of Its Motion for Summary Judgment, ¶ 1; Dkt. 34,
Defendant Burke’s Local Rule 56(a)(2) Statement in Opposition to Summary
Judgment, ¶ 1; Dkt. 40, Defendant Mesniaeff’s Local Rule 56(a)(2) Statement in
Opposition to Plaintiff’s Motion for Summary Judgment, ¶ 1]. Burke amended her
complaint on January 8, 2013, and the case was subsequently transferred to the
Judicial District of Stamford/Norwalk at Stamford. [Dkt. 29, ¶ 1; Dkt. 34, ¶ 1; Dkt.
40, ¶ 1]. Another amended complaint in that matter was filed on November 27,
2013 (hereinafter the “Burke Complaint”). [Dkt. 43, Burke Complaint]. Even
though the pleading stage of the litigation has allegedly not yet closed,
notwithstanding that the proceeding has been pending for more than two years,
the Burke Complaint, the operative complaint for our purposes, alleges that on
December 5, 2009, Mesniaeff assaulted Burke while she was at his home at 129
North Main Street, Sharon, Connecticut. [Dkt. 43, Count 1, ¶¶ 3-4]. Count one of
the Burke Complaint alleges that Mesniaeff committed an intentional assault
against Burke. Specifically, it is alleged that on December 5, 2009, Mesniaeff, the
insured, “willfully and maliciously grabbed and repeatedly pulled [Burke’s] arms,
knocked her down multiple times on the driveway and grabbed and pulled her
neck as he dragged her away from the [insured] premises.” [Id. at Count 1, ¶ 4].
It also alleges that Mesniaeff “lifted [Burke] from the ground by her neck and by
her arm held behind her back.” [Id.].

2

The second count is for wanton/reckless assault, and it alleges that Mesniaeff
“wantonly and recklessly grabbed and repeatedly pulled [Burke’s] arms, knocked
her down multiple times on the driveway and grabbed and pulled her neck as he
dragged her away from the premises.” [Id. at Count 2, ¶ 4]. Count two further
alleges that Mesniaeff lifted Burke by her neck and by her arm held behind her
back. [Id.].
Count three is for negligent assault, and it alleges that Mesniaeff
attempted, perhaps without initially intending to injure
the plaintiff, to remove her from the premises, possibly
in order to avoid a public confrontation in front of
guests who were at the premises at the time. In so
doing, he negligently and carelessly grabbed the
plaintiff by the arm and, without her consent, propelled
her forcefully down the driveway toward the public
sidewalk adjacent to the premises, during which time
she fell to the ground at least once. At one point during
this assault, the defendant lifted the plaintiff from the
ground by her neck and by her arm behind her back.
[Id.]. The earlier complaint dated January 8, 2013, however, only alleged with
respect to this count that Mesniaeff “negligently and carelessly grabbed and
repeatedly pulled the plaintiff’s arms, knocked her down multiple times on the
driveway and grabbed and pulled her neck as he dragged her away from the
premises. During this attack, the defendant lifted the plaintiff from the ground by
her neck and by her arm held behind her back.” [Dkt. 29-1, Burke Complaint
dated January 8, 2013, Count 3, ¶ 4]. It is not clear whether the impetus for the
added detail in the Burke Complaint as amended was a result of the present
declaratory judgment action.
3

Count four is for intentional infliction of emotional distress, and it repeats the
allegations found in count one and further alleges that Mesniaeff’s conduct was
performed with the “intention of inflicting emotional distress upon the plaintiff, or
with the knowledge that emotional distress was a likely and foreseeable result of
his conduct.” [Dkt. 43, Count 4, ¶ 5]. The fifth count is for negligent infliction of
emotional distress, and it alleges that Mesniaeff “grabbed and repeatedly pulled
the Plaintiff’s arms, knocked her down multiple times on the driveway and
grabbed and pulled her neck as he dragged her away from the premises. During
this attack, the defendant lifted the plaintiff from the ground by her neck and by
her arm held behind her back.” [Id. at Count 5, ¶ 4]. Count five also alleges that
Mesniaeff’s conduct “created an unreasonable risk of causing emotional distress
to the plaintiff.” [Id. at Count 5, ¶ 5].
Count six is for reckless infliction of emotional distress, and it incorporates
the allegations in count two and alleges that Mesniaeff’s actions “created an
unreasonable risk of causing emotional distress to the plaintiff.” [Id. at Count 6, ¶
5]. Count seven is for continuing tort of physical and psychological abuse, and it
repeats the allegations of the assault in count one, and further alleges that this
conduct “was part of an ongoing pattern of recurring domestic violence
perpetrated by the defendant upon the plaintiff which included prior assaults predating this incident.” [Id. at Count 7, ¶ 5]. Specifically, it alleges that “[t]his
ongoing pattern of recurring domestic violence involved physical and/or
psychological abuse perpetrated by the defendant upon the plaintiff over an
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extended period of time” and that “the plaintiff was battered, physically and/or
psychologically abused [sic] by the defendant at least twice.” [Id. at Count 7, ¶¶
7, 10].
As a result of the assault and ongoing pattern of abuse, Burke claims to have
sustained bodily injury, including multiple bodily contusions, left shoulder pain, a
left shoulder tear of the supraspinatus tendon, a left shoulder tear of superior
labrum, severe posttraumatic rapidly progressive osteoarthritis of the left
shoulder and synovitis, left shoulder adhesive capsulitis, neck pain, low back
pain, lumbar disc displacement, post-traumatic stress disorder, depression,
anxiety, and severe physical, mental and emotional distress. [Id. at Count 1, ¶5,
Count 7, ¶ 12].
Prior to December 5, 2009, State Farm issued to Mesniaeff a Homeowners
Policy of insurance bearing policy number 07-BC6164-0 (the “Policy”) with
effective dates of coverage from July 1, 2009 to July 1, 2010. [Dkt. 29, ¶ 14; Dkt.
34, ¶ 14; Dkt. 40, ¶ 14]. The Policy lists Mesniaeff as the named insured and the
insured premises as 129 North Main Street, Sharon, Connecticut. [Dkt. 29, ¶ 15;
Dkt. 34, ¶ 15; Dkt. 40, ¶ 15]. The Policy, including all relevant amendments,
provides in relevant part:
DEFINITIONS
“You and your” mean the “name insured” shown in the Declarations.
Your spouse is included if a resident of your household. “We”, “us”
and “our” mean the Company shown in the Declarations.

5

1. “bodily injury” means physical injury, sickness, or
disease to a person. This includes required care, loss
of services and death resulting therefrom. . . .
****
4.

“insured” means you and, if residents of your
household:
a.

your relatives; and

b.

any other person under the age of 21 who is in the
care of a person described above.
****

7.

“occurrence”, when used in Section II of this policy,
means an accident, including exposure to conditions
which results in:
a.

bodily injury; or

b.

property damages;

during the policy period. Repeated or continuous
exposure to the same general conditions is considered
to be one occurrence.

SECTION II – LIABILITY COVERAGES
COVERAGE L – PERSONAL LIABILITY
If a claim is made or a suit is brought against an insured for damages
because of bodily injury or property damage to which this coverage
applies, caused by an occurrence, we will:
1. Pay up to our limit of liability for the damages for which
the insured is legally liable; and
2. Provide a defense at our expense by counsel of our
choice. We may make any investigation and settle any
claim or suit that we decide is appropriate. Our
obligation to defend any claim or suit ends when the
amount we pay for damages, to effect settlement or
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satisfy a judgment resulting from the occurrence, equals
our limit of liability.
****
SECTION II - EXCLUSIONS
1. Coverage L and Coverage M do not apply to:
a. bodily injury or property damage which is either
expected or intended by an insured.
****
[Dkt. 29, ¶ 16; Dkt. 34, ¶ 16; Dkt. 40, ¶ 16]. On November 27, 2012, State Farm filed
the instant declaratory judgment action against the insured, Mesniaeff, and
Burke, seeking a declaration that it does not have a duty to defend or indemnify
Mesniaeff under the Policy for the claims asserted against him in the underlying
civil action. [Dkt. 29, ¶ 17; Dkt. 34, ¶ 17; Dkt. 40, ¶ 17]. Specifically, State Farm
alleges that the Policy does not afford coverage for the December 5, 2009
“attack,” as described in the Burke Complaint because the “bodily injury”
sustained by Burke was not caused by an “accident” as that term is defined
under Connecticut law and mandated by the Policy definitions. [Dkt. 29, ¶ 18;
Dkt. 34, ¶ 18; Dkt. 40, ¶ 18]. State Farm also alleges that coverage for the incident
in the Burke Complaint is excluded pursuant to the Policy’s expected or intended
acts exclusion. [Dkt. 29, ¶ 19; Dkt. 34, ¶ 19; Dkt. 40, ¶ 19]. Notwithstanding its
position that no coverage exists under the Policy for the claims asserted against
Mesniaeff in the state court action, State Farm is providing a defense to Mesniaeff
under a full reservation of rights. [Dkt. 29, ¶ 20; Dkt. 34, ¶ 20; Dkt. 40, ¶ 20].

7

Both Defendants, however, argue that there are questions of material fact as
to whether Mesniaeff intended to harm Burke in the altercation and, therefore,
whether his actions were merely reckless or negligent, rather than intentional.
[Dkt. 34-II, Disputed Issues of Material Fact, ¶¶ 1-5; Dkt. 40-IV, Disputed Issues of
Material Fact, ¶¶ 1-7]. In support of these claims, the Defendants cite to
Mesniaeff’s deposition testimony in which he admitted to “escorting “ Burke off
the property, but that he had never intended the resulting harm. [Dkt. 40-IV, ¶¶ 34]. Other witnesses also testified that when Mesniaeff was escorting Burke off
the property, it looked as though their arms were linked and “they were walking
together.” [Dkt. 40-IV, ¶ 6]. Accordingly, they assert that summary judgment
should be denied.
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 Elec. 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
8

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
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. 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.

9

The parties appear to 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)).
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
10

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
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. (italics in
the original) (citations and internal quotation marks omitted). Importantly,
11

“[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 argues that
even if the assault in the civil case was an occurrence, it was excluded from
coverage because it falls within the exclusion for intended or expected actions.
1. Whether the Alleged Assault was an Occurrence as Defined in the
Policy
The Policy provides coverage for “bodily injury or property damage . . .
caused by an occurrence . . . .” It further defines an “occurrence” as “an
accident, including exposure to conditions, which results in . . . bodily injury; or .
. . property damage . . . during the policy period, repeated or continuous exposure
to the same general conditions is considered to be one occurrence.” Therefore,
to be covered, bodily injury must be caused by an occurrence. The Plaintiff
argues that the facts in the Burke Complaint allege intentional conduct, which, by
definition, is not an occurrence because it is not accidental and, therefore, is not
covered by the Policy. [Dkt. 28, Memorandum of Law in Support of Plaintiff’s
Motion for Summary Judgment, p. 12-15].
Since an occurrence is defined as an “accident” it necessarily means that to
be an “occurrence,” the actions causing the ultimate injury cannot be intentional.
12

Even when the term “accident” is not defined in the policy, as is the case here,
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, No. 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). The Court in Atlantic Mut. v. Pope, adopted the “unexpected
happening” definition of “accident” and precluded the alleged beating and
whipping of a minor from being considered an “occurrence.” Atlantic Mut. v.
Pope, No. CV990497354S, 2001 WL 861829, at *6 (Conn. Sup. Ct. June 28, 2001).
That court also found that “the mention of ‘intent’ in the case law definition of
‘accident’ as ‘a sudden event or change occurring without intent or volition
through carelessness, an unfortunate result’ . . . goes more to the lack of
deliberateness or negligent conduct of the act itself, not the intent of the acting
party to achieve a certain end result.” Id. (citations omitted, emphasis in the
original). Therefore, “occurrence” as defined in the Policy does not include
intentional torts or other intended actions, and the intent required is the intent to
commit the specific act leading to the injury, not the intent to achieve a specific
13

result. See also Allstate Ins. Co. v. Burnard, No. 3:08cv603(VLB), 2010 WL
133202, at *7 (D. Conn. March 31, 2010) (“Whether alleged conduct is accidental,
and therefore an occurrence, depends however on whether the event causing the
injury was accidental, as opposed to whether the resulting damages were
unintended.” (citing Providence Wash. Ins. Group v. Albarello, 784 F. Supp. 950,
953 (D. Conn. 1992)).
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.
14

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
the insured was alleged to have engaged in 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 coverage for intentional
conduct. Middlesex Ins. Co., 699 F. Supp. 2d at 442. The court explained 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); Truck Ins. Exch., 2007 3119531, at *1 (finding that the complaint
alleged intentional conduct not negligent conduct when it was claimed that the
insured physically assaulted the plaintiff in the underlying civil action, restrained
her in her bedroom and threatened to kill her by holding a gun to hear head).
Here, the Burke Complaint alleges that Mesniaeff “willfully and maliciously
grabbed and repeatedly pulled the Plaintiff’s arms, knocked her down multiple
15

times on the driveway and grabbed and pulled her neck as he dragged her away
from the premises. During the attack, the Defendant lifted the Plaintiff from the
ground by her neck and by her arm held behind her back.” [Dkt. 43, Burke
Complaint, ¶ 4]. Furthermore, the Burke Complaint alleges that this assault was
“part of an ongoing pattern of recurring domestic violence perpetrated by the
defendant upon the plaintiff which included prior assaults pre-dating this
incident.” [Id. at Count 7, ¶ 5]. Burke claims that she was “battered, physically
and/or psychologically abused by the defendant at least twice,” and due to all of
the aforementioned, she was physical and emotionally injured. [Id. at Count 7, ¶¶
10, 12]. Even though in count three for negligent assault Burke alleges
speculatively that “defendant attempted, perhaps without initially intending to
injure the plaintiff, to remove her from the premises, possibly in order to avoid a
public confrontation in front of guests who were at the premises at the time,” it is
clear that Mesniaeff’s persistent efforts to forcibly remove Burke from the
premises and his inattention to the possibility that she was being injured was
intentional, even if the result, her extensive injuries, was not. [Id. at Count 3, ¶ 4].
Just as in Mara and Campagna, the “event causing the injury,” here the escort
that resulted in the assault, was not accidental. See Burnard, 2010 WL 133202, at
*7 (“Whether alleged conduct is accidental, and therefore an occurrence, depends
however on whether the event causing the injury was accidental, as opposed to
whether the resulting damages were unintended.”).

16

Mesniaeff argues that even though the Burke Complaint alleges intentional
conduct, he denies those allegations. However, as Mesniaeff correctly points out,
“‘[a]n insurer’s duty to defend is derived from the allegations of the complaint
and the terms of the policy.’” [Dkt. 41, Mesniaeff’s Memorandum in Opposition
Motion for Summary Judgment, p. 8 (quoting Technicon Elec. Corp. v. Am. Home
Assurance Co., 74 N.Y.2d 66 (1989)]. Therefore, 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 of [the] complaint with the terms of the
insurance policy.” Wetland v. Am. Equity Ins. Co., 840 A.2d 1158 n.7 (Conn.
2004). Since Mesniaeff’s claimed defenses are not contained in the Burke
Complaint, they are irrelevant to the analysis required to be conducted by this
Court.
Even though a court need not look beyond the allegations in the Burke
Complaint, other evidence confirms this Court’s understanding of the civil action.
Mesniaeff admitted in his deposition that “[t]owards the end of the driveway as I
was walking her, I think she started resisting me more and more. And at that
point it became a, you know, it was . . . a little bit of a struggle.” [Dkt. 35, Exhibit
B, Deposition of Mesniaeff dated June 6, 2013, 49:5-10]. Before that, Mesniaeff
was asked if Burke “willingly depart[ed] from the premises under your escort or
did she resist?” He responded that “[a]t first she departed willfully, but then she
started resisting,” and that it was fair to characterize his actions as “using at
least some pressure on her arm to get her moving in the right direction.” [Id. at
17

38:20-39:22]. Even after Burke began forcefully resisting being “escorted” off the
premises, and Mesniaeff understood “that she was no longer willing to do what
[he] wanted her to do,” he “continued to . . . move her anyway.” [Id. 55:3-11]. In
conclusion, Mesniaeff admitted that he “forcibly led her away from the house
against her will and despite her act of resistance to it.” [Id. at 57:11-18]. Even
though he might not have intended the end result, her severe injuries, these
admissions in light of the claims in the Burke Complaint clearly show that the
factual allegations underlying the complaint were based on intentional, not
accidental, conduct.
Both Defendants also argue that the Burke Complaint alleges claims for
assault, which in Connecticut can be committed either intentionally or
negligently. [Dkt. 41, p. 10-11; Dkt. 33, Memorandum in Opposition to Plaintiff’s
Motion for Summary Judgment, p. 11-13]. The Burke Complaint alleges that
Mesniaeff’s actions were done willfully and intentionally, except from the third
count, which alleges that he “negligently and carelessly grabbed the plaintiff by
the arm and, without her consent, propelled her forcefully down the driveway
toward the public sidewalk adjacent to the premises, during which time she fell to
the ground at least once.” [Dkt. 43, Count 3, ¶ 4]. 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 n.8 (Conn. 1988) (citations and internal
quotation marks omitted). It also noted that
18

recklessness is a state of consciousness with reference
to the consequences of one’s acts . . . . It is more than
negligence, more than gross negligence. . . . The state of
mind amounting to recklessness may be inferred from
conduct. But, in order to infer it, there must be
something more than a failure to exercise a reasonable
degree of watchfulness to avoid danger to others or to
take reasonable precautions to avoid injury to them.
Frillici v. Town of Westport, 264 Conn. 266, 277 (Conn. 2003) (citations and
internal quotation marks omitted). Reading these definitions in conjunction with
the allegations in the Burke Complaint, it is clear that there is no factual predicate
for the assault being one arising in negligence. Mesniaeff did not merely fail to
exercise a degree of watchfulness to avoid danger; he confronted Burke and
forcefully led her down the driveway against her will. When she began resisting,
his force increased resulting in an admitted “struggle” between the Defendants.
Even if her injuries resulted from unrelated, preexisting conditions, Mesniaeff
admitted to knowing that Burke had “numerous problems with her health,”
including a “shoulder” injury and systemic lupus. [Dkt. 35, 62:1-64:1]. Therefore,
he should have been extra cautious in removing her from the premises. These
allegations and admissions do not constitute negligence as defined by the
Supreme Court, at best, they result in reckless behavior which, again by
definition, is not negligent or accidental, and, therefore, is excluded from the
Policy. Accordingly, in this case, Burke is alleging an intentional or willful
assault, not a negligent one. Markey v. Santangelo, 485 A.2d 1305, 1307 (Conn.
1985).

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Mesniaeff also argues that even if several of the counts in the Burke
Complaint are excluded from the Policy as being based on intentional conduct,
the Burke Complaint’s inclusion of allegations based on negligent conduct
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. Ct. 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, the Plaintiff has no duty to defend
Mesniaeff in this action. Even in the third count of the Burke Complaint, the
allegations show that even though Mesniaeff might not have “intend[ed] to
injure” Burke, he clearly intended to physically remove her from the premises and
to apply increasingly greater force necessary to overcome her resistance. The
persistent escalating use of force to overcome the will of another does not
constitute negligent conduct, but rather reckless, wanton, or intentional conduct.
There is only one plausible interpretation of the facts alleged by the Burke
Complaint and that is that Mesniaeff’s actions were intentional.
Finally, Mesniaeff argues that the pleading phase is still open in the underlying
civil case, so any declaratory judgment action should be stayed until after that
phase closes. The Court wishes to highlight that the Burke Complaint was filed
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on December 2, 2011, and an amended complaint was filed in that action on
November 27, 2013. Even though the pleading phase has been open for over two
years, there has been no indication by either Defendant that Burke will amend her
complaint again. Furthermore, Mesniaeff cites no authority for his position that a
declaratory judgment action must be stayed until the pleading phase of the
underlying tort action closes. Just as an insurance company cannot withhold a
defense on the basis that the pleadings are not closed and the plaintiff may alter
its allegations, an insured cannot likewise rely on the possibility that a plaintiff
may amend its pleadings to bring it within the scope of coverage to further delay
a declaratory judgment action. Moreover, the Plaintiff’s allegations in the Burke
Complaint as amended are consistent with the factual predicate underlying the
initial complaint; the only change this Court notes is the language in count three
for negligent assault, which may have been altered in hopes of precluding a
ruling in favor of the Plaintiff here. Even so, this Court has already held that the
factual allegations in the Burke Complaint, which the Court must review and
compare to the terms of the Policy, are sufficient to show the underlying actions
as being intentional. Therefore, since there is no indication that Burke intends to
amend her complaint again, and given that the proceeding has been pending for
more than two years, this Court finds it appropriate to rule in favor of the Plaintiff
at this time.
Since the Court has ruled that Mesniaeff’s actions did not constitute an
occurrence, and, therefore, that the Plaintiff does not have a duty to defend, the
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Court will not address whether Mesniaeff’s actions constituted conduct that is
excluded from the Policy as consisting of “bodily injury or property damage
which is expected or intended by the insured.” However, the Court notes that the
Plaintiff’s characterization that this language excludes all intentional conduct by
an insured may be overly broad because the exclusion is limited to the type of
injury or property damage that results.
2. Duty to Indemnify
It is undisputed that “an insurer’s duty to defend is broader than its duty to
indemnify.” Schilberg Integrated Metals Corp. v. Cont’l Cas. Co., 819 A.2d 773,
783 (Conn. 2003); see also Bd. of Educ. of City of Bridgeport v. St. Paul Fire and
Marine Ins. Co., 801 A.2d 752, 759 (Conn. 2002) (“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.” (citations and internal quotation marks omitted)). Accordingly,
“where there is no duty to defend, there is no duty to indemnify.” DaCruz, 846
A.2d at 858 (quoting QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 382
(2001)); see also Cambridge Mut. Fire Ins. Co. v. Sakon, 132 Conn. App. 370, 37576 (Conn. App. 2011) (the same).
In disputing this rule, Mesniaeff relies on Amica Mut. Ins. Co. v. Cody, which
held that a declaratory judgment motion regarding indemnification was not ripe
for decision because the underlying tort lawsuit had not been resolved. Amica
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Mut. Ins. Co. v. Cody, No. FSTCV106005266S, 2013 WL 3770672, at * 4-10 (Conn.
Sup. Ct. June 28, 2013). However, in that case, the insurance company was
explicitly not contesting its duty to defend; it was only contesting its duty to
indemnify. Id. Therefore, in that case the duty to indemnify could only be
decided by reviewing “the facts established at trial and the theory under which
judgment is actually entered . . . .” Bd. of Educ. of City of Bridgeport, 801 A.2d at
759. Obviously this case is of little relevance here because the Plaintiff is
contesting its duty to defend. The Court has already decided that based on the
allegations in the Burke Complaint there is no duty to defend because no
allegations can be potentially describing behavior that would be covered by the
Policy. Mesniaeff cites no authority explaining why the rule that no duty to
defend necessarily precludes a duty to indemnify should be reconsidered here,
and, accordingly, this Court declines to do so. Since the Plaintiff has no duty to
defend Mesniaeff in the underlying tort action based on the Burke Complaint, it
also has no duty to indemnify.
While the court recognizes that a trial has not occurred so there can be no
absolute assurance that a verdict will ultimately be rendered in favor of Burke on
a negligence claim, the Court is constrained by the record before it now, which
ineluctably leads to the conclusion that the acts complained of were intentional.
Therefore this Court can perceive of no set of facts in which a negligence verdict
could be rendered, absent contrivance to bring the dispute within the ambit of the
Policy. While this could conceivably result in inconsistent outcomes, as stated
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above, Burke has failed to conform the Burke Complaint to the policy despite
having had ample time and knowledge of the need to do so, rendering de minimis
the potential of inconsistent outcomes.
IV.

Conclusion

For the foregoing reasons, Plaintiff’s [Dkt. 27] Motion for Summary Judgment
is GRANTED. The Clerk is directed to close the case.

IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 21, 2014

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