Pennsylvania General Insurance Company v. Thakur et al

Filing 77

ORDER: Plaintiff's Motion for Summary Judgment Pursuant to Federal Rule 56(a) and Local Rule 56(a)(1) (Doc. No. 74 ) is hereby GRANTED. The Clerk shall enter judgment in favor of plaintiff Pennsylvania General Insurance Company and close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 8/11/2014. (Wang, M.)

United States District Court
District of Connecticut
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:
PENNSYLVANIA GENERAL INSURANCE
:
COMPANY,
:
:
Plaintiff,
:
:
v.
:
:
URMILA THAKUR, INDIVIDUALLY AND :
AS TRUSTEE OF THE VISHNU MAHAL
:
LAND TRUST aka SHIVA MAHAL LAND :
TRUST AND SHIVA MAHAL LAND TRUST,:
DEOWRAJ BUDDHU, INDIVIDUALLY AND :
TRUSTEE OF VISHNU MAHAL LAND
:
TRUST aka SHIVA MAHAL LAND TRUST :
AND SHIVA MAHAL LAND TRUST,
:
SUNITA BUDDHU, INDIVIDUALLY AND :
AS TRUSTEE OF THE VISHNU MAHAL
:
LAND TRUST aka SHIVA MAHAL LAND :
TRUST AND SHIVA MAHAL LAND TRUST,:
VISHNU MAHAL LAND TRUST aka SHIVA:
MAHAL LAND TRUST, SHIVA MAHAL
:
LAND TRUST, MONSERRATE TORRES,
:
HEDDY ARCOS-TORRES, GWENDOLYN
:
McKINSEY, ANA SUAREZ, CESAR
:
SUAREZ, NARCISA RODAS, ANA ARIAS,:
GUILLERMINA BANGUERA, GONZALO
:
S.ILLESCAS, JANICE BARBOSA, JHON :
KLEBER AMENDANO, ARIOSTO LOPEZ
:
CAMPOS, BELGICA RODAS, MERCI
:
LOPEZ, VINCENTE LOPEZ and CESAR :
SOLIS,
:
:
Defendants.
:
:
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CIVIL NO. 3:12CV1799(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Pennsylvania General Insurance Company
(“Pennsylvania General”), seeks a judgment declaring that it
owes no duty to defend or indemnify defendant Urmila Thakur
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(“Thakur”) in a number of underlying civil lawsuits (the
“Underlying Suits”).1

Pennsylvania General has moved for summary

judgment, and no defendant has filed a response.

For the

reasons set forth below, the plaintiff‟s motion is being
granted.
I. FACTUAL BACKGROUND
Pennsylvania General issued Thakur a homeowners‟ insurance
policy (the “Policy”), covering the one year period from
February 23, 2007 to February 23, 2008.

The Policy was

subsequently renewed through February 23, 2009.

The Policy was

cancelled on March 23, 2009.
The pertinent portion of the Policy states that “[i]f 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,” then
Pennsylvania General will defend Thakur in the lawsuit and pay
up to its policy limit any amount she is ordered to pay.

(Ex.

A, Pl.‟s Mem. Supp. Mot. Summ. J. (Doc. No. 75-2) (“Ex. A”), at
*40).

The Policy defines the “insured” as: “[y]ou and residents

of your household who are: (1) [y]our relatives; or (2) [o]ther
persons under the age of 21 and in the care of any person
described in [part (1)] of this provision.”

(Id. at *29.)

The

Policy defines “occurrence” as “an accident, including
1

Default judgment was entered against defendants Deowraj Buddhu, Sunita
Buddhu, Vishnu Mahal Land Trust, and Shiva Mahal Land Trust on October 31,
2013. All other defendants in this case are the plaintiffs in the Underlying
Suits.
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continuous or repeated exposure to substantially the same
general harmful conditions, which results, during the policy
period, in: a. „[b]odily injury‟; or b. „[p]roperty damage‟.”
(Id. at *30.)
The Policy contains a number of exceptions.

For instance,

it states that excluded from coverage is
“Bodily injury” or “property damage” which is expected
or intended by an “insured” or which is the result of
intentional acts or omissions, or criminal activity,
even if the resulting “bodily injury” or “property
damage”:
a. Is of a different kind, quality or degree than
initially expected or intended; or
b. Is sustained by a different person, entity,
real or personal property, than initially
expected or intended; or
c. Is committed by an “insured who lacks the
mental capacity to govern their own conduct.
This exclusion applies regardless of whether an
“insured” is charged with or convicted of a crime.
(Id. at 41.)
The Underlying Suits are based on a fraudulent “business”
that was run out of Thakur‟s home by her ex-husband, Deowraj
Buddhu, and daughter, Sunita Buddhu.

Sunnita Buddhu pled guilty

to federal crimes and was sentenced to a term of imprisonment
based on her role in the “program”, and Deowraj Buddhu was found
guilty by a jury of federal crimes based on his role in the
“program” but died before he was sentenced.

It is undisputed

that Thakur had a role in the “program”, even though she was not
a defendant in the criminal case that resulted.

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II.

LEGAL STANDARD

A motion for summary judgment may not be granted unless the
court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a).

See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

When ruling on a motion for

summary judgment, the court may not try issues of fact, but must
leave those issues to the jury.

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm‟rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the

trial court‟s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248 (internal quotation marks omitted).

When reviewing the

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evidence on a motion for summary judgment, the court must
“assess the record in the light most favorable to the non-movant
and . . . draw all reasonable inferences in its favor.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000)(quoting Delaware & Hudson Ry. Co. v. Consolidated Rail
Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
III. DISCUSSION
Pennsylvania General sets forth several arguments as to why
it owes Thakur no duty to defend or indemnify.

An insurer‟s

“duty to defend is considerably broader than the duty to
indemnify.”

DaCruz v. State Farm Fire and Cas. Co., 268 Conn.

675, 687 (2004) (collecting cases).

Consequently, if a court

determines that the insurer “ha[s] no duty to defend [the
defendant] in the [underlying] action [this] necessarily means
that [the insurer] also ha[s] no duty to indemnify [the
defendant] in that action.”

Id. at 688.

Therefore, the court

discusses first whether Pennsylvania General has a duty to
defend Thakur in the Underlying Suits.
Under Connecticut law,
to 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.
In
presenting countervailing proof, the insurer, no less
than the insured, is necessarily limited to the
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provisions of the subject insurance policy and the
allegations of the underlying complaint.
Therefore,
it is only entitled to prevail under a policy
exclusion if the allegations of the complaint clearly
and unambiguously establish the applicability of the
exclusion to each and every claim for which there
might otherwise be coverage under the policy.
Lancia v. State Nat. Ins. Co., 134 Conn. App. 682, 691 (2012).
Furthermore, the Connecticut Supreme Court has held 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 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.”
Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274
Conn. 457, 463 (2005) (quoting Bd. of Educ. v. St. Paul Fire &
Marine Ins. Co., 261 Conn. 37, 40-41 (2002)) (alterations in
original).

In other words, 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.”

Community

Action for Greater Middlesex County, Inc. v. American Alliance
Ins. Co., 254 Conn. 387, 395 (2000).
Additionally, “[i]f an allegation of the complaint falls
even possibly within the coverage, then the insurance company
must defend the insured.”

Moore v. Continental Cas. Co., 252
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Conn. 405, 409 (2000) (internal quotation marks omitted).

“On

the other hand, if the complaint alleges a liability which the
policy does not cover, the insurer is not required to defend.”
QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 354 (2001)
(internal quotation marks omitted).

Finally, “[w]hether an

insurer is obligated to defend an insured is determined by the
facts in the underlying complaint, and not the titles assigned
to the particular causes of action.”

Covenant Ins. Co. v.

Sloat, No. 385786, 34 Conn. L. Rptr. 687, 2003 WL 21299384, at
*8 (Conn. Super. May 23, 2003) (internal quotation marks
omitted).

Therefore, the “inquiry into an insurer‟s duty to

defend focuses on the facts alleged, not legal theories.”

Id.

(internal quotation marks omitted).
Pennsylvania General argues that it does not owe Thakur a
duty to defend because all of the acts alleged in the Underlying
Suits do not qualify as “occurrences” under the Policy.
Although the Policy defines an “occurrence” as “an accident”, it
does not define the term “accident”.

In interpreting similar

insurance policy provisions, the Connecticut Supreme Court has
defined “accident” as “„[a]n unintended and unforeseen injurious
occurrence;‟ „an occurrence for which no one is responsible‟;
and „an event of unfortunate character that takes place without
one‟s foresight or expectation.‟”

Allstate Ins. Co. v. Barron,

269 Conn. 394, 408 n.10 (2004) (internal citations omitted)
(emphasis in original).

Similarly, in evaluating insurance
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policies that define an “occurrence” as an “accident”, this
court has “interpreted the term to encompass „unintended,
unexpected, or unplanned event[s].‟”

Kemper Independence Ins.

Co. v. Tarzia, Civ. No. 3:11-cv-294 (JCH), 2012 WL 2327703, at
*2 (D. Conn. June 19, 2012) (quoting Middlesex Ins. Co. v. Mara,
699 F. Supp. 2d 439, 449 (D. Conn. 2010)).

“Therefore,

„occurrence‟ as defined in the [p]olicy 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 result.”

State

Farm Fire & Cas. Co. v. Mesniaeff, Civ. No. 3:12-cv-1675 (VLB),
2014 WL 1154402, at *6 (D. Conn. Mar. 21, 2014).

See also

Allstate Ins. Co. v. Smudin, Civ. No. 3:07-cv-1679 (AWT), 2009
WL 890912, at *5 (D. Conn. Mar. 31, 2009) (“[T]he relevant
inquiry here at the stage of determining whether there was an
„occurrence‟ is whether the event causing the injury was an
accident, not whether the injury itself is accidental.”).
There is no genuine issue of material fact with respect to
the conclusion that the factual allegations made in the
Underlying Suits do not relate to an “occurrence”.

All of the

injuries alleged in the Underlying Suits are the result of
participation in the “program” by the plaintiffs in the
Underlying Suits.

None of the actions taken by Thakur with

respect to the “program” can be even possibly characterized as
accidental, unforeseen, or unintended.
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While Thakur may

possibly not have intended for the victims to be injured in the
way that they were, or to the degree that they were, it is
alleged that she intended to take the actions that led to these
injuries, i.e., letting her ex-husband and daughter operate the
“program” out of her home, handle money for the business, etc.
It is immaterial that “[i]n the [Underlying Suits], the
underlying plaintiffs have pled claims for negligent
misrepresentation.”
75), at 5.)

(Pl.‟s Mem. Supp. Mot. Summ. J. (Doc. No.

“Connecticut courts look past the terminology in

pleading to grant summary judgment for the insurer, holding
there is no duty to defend a negligence action which is actually
based on intentional acts by the insured.”
v. Mara, 699 F. Supp. 2d 439, 456.

Middlesex Ins. Co.

Thus, “merely describing an

action in terms of „negligence‟ is of no consequence when the
action itself „can only be deemed intentional.‟”

Id. at 457

(quoting Middlesex Mutual Assur. Co. v. Rand, 1996 WL 218698, at
*2 (Conn. Super. Ct. 1996)).
Here, although the underlying plaintiffs‟ claims may be
labeled as “negligent misrepresentation”, they are still based
on intentional acts of Thakur.

Specifically, these claims are

based on Thakur‟s representation to the victims that the
“program” was legitimate.

Even if Thakur was genuinely mistaken

about the “program”, and was negligent in being mistaken, such
mistakes are not “accidents” so as to qualify as “occurrences”
under Connecticut law.

Thus, because there is no genuine issue
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of material fact with respect to whether the factual allegations
contained in the Underlying Suits allege “occurences”,
Pennsylvania General is under no duty to defend Thakur.
It is worth noting that Pennsylvania General also has no
duty to defend because the allegations in the Underlying Suits
fall under the “intentional acts or criminal activity” exception
to the Policy.

Although Thakur was not indicted with Deowraj

and Sunita Buddhu, those factual allegations demonstrate that
she was a participant in criminal activity.

In fact, the

Underlying Suits are premised on her participation in such
activity.

Furthermore, Pennsylvania General has produced

evidence demonstrating that the Policy was void ab initio as a
result of fraud.2

In February 2007, Thakur executed a

homeowner‟s insurance application in which she stated that no
business was being conducted on the premises.

However, it has

been found in a previous action in this district that at least
Sunita Buddhu was preparing tax returns for “customers” using
the residence as early as 2004 and continued to do so until at
least early 2008, see United States v. Deowraj Buddhu, Civil
Action No. 3:08-cv-0074(CFD), 2009 WL 1346607, at *1 (May 12,
2009), and there is evidence that Thakur was assisting Sunita

2

Although ordinarily a court only looks to the underlying complaints and the
policy at issue when deciding a motion for summary judgment with respect to
an insurer‟s duty to defend or indemnify, a claim of a policy being void ab
initio necessarily requires the court to look outside the documents to
determine whether a valid insurance policy was even created.
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Buddhu in this endeavour.

Thakur has created no genuine issue

as to this conclusion.
Consequently, Pennsylvania General is under no duty to
defend Thakur in the Underlying Suits.

“Because 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
. . . .‟”

DaCruz v. State Farm Fire & Cas. Co., 268 Conn. 675,

688 (2004) (quoting QSP, Inc. v. Aetna Cas. & Sur. Co., 256
Conn. 343, 382 (2001)).

Therefore, the court finds that

Pennsylvania General similarly has no duty to indemnify Thakur.
IV.

CONCLUSION

For the reasons set forth above, the plaintiff‟s motion for
summary judgment (Doc. No. 74) is hereby GRANTED.
The Clerk shall enter judgment in favor of plaintiff
Pennsylvania General Insurance Company and close this case.
It is so ordered.
Signed this 11th day of August, 2014, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

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