Allstate Insurance Company v. Tandon et al

Filing 49

RULING granting 40 Motion for Summary Judgment by Allstate Insurance Company and denying 41 Cross-Motion for Summary Judgment by Robert Doohan, Sapna Tandon. The Clerk of the Court will enter judgment in favor of plaintiff Allstate Insurance Company and close this case. Signed by Judge Holly B. Fitzsimmons on 3/25/2015. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALLSTATE INSURANCE COMPANY
v.
SAPNA TANDON, ET AL

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CIV. NO. 3:13CV585 (HBF)

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT [Doc. ##40, 41]
Plaintiff Allstate Insurance Company (“Allstate”) brings
this action seeking a declaration that it owes no duty to defend
or indemnify defendants Sapna Tandon and Robert Doohan
(sometimes collectively referred to as “defendants”) in a civil
suit filed in Connecticut Superior Court by Frank and Donna
Genna. Pending is Allstate‟s motion for summary judgment [Doc.
#40], and defendants‟ cross motion for summary judgment [Doc.
#41], both of which implicate Allstate‟s duty to defend and/or
indemnify defendants in the underlying state court action. For
the reasons that follow, Allstate‟s motion for summary judgment
[Doc. #40] is GRANTED and defendants‟ motion for summary
judgment [Doc. #41] is DENIED.
I.

FACTS1
Allstate insured defendants under an Allstate Deluxe

Homeowners Policy # 9 19 605550 10/03 covering the one year
period beginning October 3, 2009 and ending October 3, 2010
(“homeowners policy”). Allstate also insured defendants under an
Allstate Personal Umbrella Policy # 9 19 264840 11/06 covering

1

The following undisputed facts are taken from the parties‟ local rule 56(a)
statements and attached exhibits. See Doc. ##40-1, 43-1, 41-2, 44-7.

the one year period beginning November 6, 2009 to November 6,
2010 (“umbrella policy”; the homeowners policy and umbrella
policy are hereinafter sometimes collectively referred to as the
“policies”).2
During this covered period, on May 28, 2010, an incident
allegedly occurred at Captain‟s Cove Marina of Bridgeport, Inc.
(“Captain‟s Cove”), which resulted in Frank Genna sustaining
personal injuries. In June 2011, Frank and Donna Genna
(collectively the “Gennas”) filed a civil action against
Captain‟s Cove, its permittee and “backers” (collectively the
“Captain‟s Cove defendants”). In October 2011, the Captain‟s
Cove defendants filed a third-party action against Tandon,
Doohan and several other individuals. Thereafter, the Gennas
filed a complaint in state superior court, which asserted direct
causes of action against Tandon, Doohan and the other
individuals identified in the third party complaint. The Gennas
are now proceeding under a third revised complaint dated
September 30, 2013 (the “Genna complaint”). Allstate is
currently providing a legal defense to Tandon and Doohan in the
state court matter under a full reservation of rights and
defenses under the policies.
The Genna complaint asserts fifty five causes of action
against fourteen defendants, including negligent supervision,
violation of the dram shop act, reckless service of alcohol,

2

Defendant Tandon is the named insured under the homeowners and umbrella
policies. Defendant Doohan qualifies as an insured under the policies because
he is a resident of the same household and Tandon‟s husband.
2

eleven negligence claims, several recklessness claims, civil
assault and battery, civil conspiracy, and numerous loss of
consortium claims. Counts nine, nineteen, thirty seven and forty
seven assert causes of action against defendant Tandon. Counts
eight, eighteen, twenty eight, thirty five and thirty six and
forty six assert causes of action against defendant Doohan.
The eighth count is captioned “COUNT EIGHT – (Negligence as to
Robert Doohan)” and alleges:
1.
At all times mentioned herein, the Plaintiff, FRANK
GENNA, was a resident of the Town of King‟s Point, County of
Nassau and State of New York.
2.
At all times mentioned herein, CAPTAIN‟S COVE MARINA
OF BRIDGEPORT, INC. (hereinafter referred to as “Captain‟s
Cove Marina”), was a corporation organized under the laws of
the State of Connecticut with an address of 1 Bostwick Avenue,
Bridgeport, Connecticut.
3.
At all times mentioned herein, THE RESTAURANT AT
CAPTAIN‟S COVE, INC. (hereinafter referred to as “RESTAURANT
AT CAPTAIN‟S COVE”), was a corporation organized under the
laws of the State of Connecticut with an address of 1 Bostwick
Avenue, Bridgeport, Connecticut.
4.
On or about May 28, 2010 at and before approximately
6:00 p.m., ROBERT “BOBBY” DOOHAN, SAPNA TANDON, JOSE GUZMAN,
RYAN ULBRICK, BRANDON MCNEAL, ZIBA GUY, MICHAEL HERMANN, STACY
ROMANO, ROBERT BARBIERI and MICHAEL SPREGUE, were present in
the establishments known as the CAPTAIN‟S COVE MARINA and
RESTAURANT AT CAPTAIN‟S COVE.
5.
At all times mentioned herein [ROBERT DOOHAN] resided
at 4900 Main Street in Stratford, Connecticut.
6.
On or about May 28, 2010, ROBERT DOOHAN, as aforesaid,
had arrived at CAPTAIN‟S COVE aboard the motor powered seagoing vessel “UP & OVER” that bears Hull ID Number RI 33333
RD.
7.
Upon information and belief, ROBERT DOOHAN was the
registered owner of the motor powered sea-going vessel “UP &
OVER” and he was the pilot of the boat at all times pertinent
hereto.3
8.
On or about May 28, 2010 at approximately 5:15 p.m.,
the plaintiff, FRANK GENNA and two companions [] traveled
across Long Island Sound on a boat owned by Frank Genna, to
the waters of Cedar Creek intending to visit the CAPTAIN‟S
COVE MARINA and RESTAURANT AT CAPTAIN‟S COVE.
9.
Upon arriving at their destination at approximately
3

Defendant Doohan is the owner of the boat called “Up & Over,” which has
inboard or inboard-outboard motor power of more than 50 horsepower.
3

6:00 p.m., Peter Genna contacted CAPTAIN‟S COVE MARINA and/or
RESTAURANT AT CAPTAIN‟S COVE via short wave radio and he was
told to dock his boat at the South Dock and that a water taxi
would take him and his companions from the South Dock to
CAPTAIN‟S COVE MARINA AND RESTAURANT AT CAPTAIN‟S COVE.
10. A short time later, plaintiff, FRANK GENNA, and his
two companions were taken to CAPTAIN‟S COVE MARINA and
RESTAURANT AT CAPTAIN‟S COVE via water taxi.
11. [] FRANK GENNA and his two companions remained at
CAPTAIN‟S COVE MARINA and RESTAURANT AT CAPTAIN‟[S] COVE for
approximately 45 minutes and made ready to take the water taxi
back to their boat at approximately 6:45 p.m.
12. While at the dock, waiting for the water taxi, FRANK
GENNA and his two companions interacted with ROBERT DOOHAN.
13. At some point, one of the passengers of the boat UP &
OVER fell into the water and [] FRANK GENNA and his two
companions, witnessing this, laughed amongst themselves over
the mishap.
14. ROBERT DOOHAN, irritated at this reaction, proceeded
to argue, berate and insult FRANK GENNA and his two
companions, hurling epithets and other harsh words at them.
15. [] FRANK GENNA and his two companions thought it best
to leave the situation, which they did by boarding the water
taxi for a ride to their boat.
16. The interaction with ROBERT DOOHAN continued, as the
boat UP & OVER, followed the water taxi in hot pursuit and,
among other things, ROBERT DOOHAN threw a beer bottle over the
water taxi and yelled and screamed at FRANK GENNA and his two
companions while they rode the water taxi back to the South
Dock.
17. After repeated attempts, UP & OVER was eventually
docked at the South Dock and ROBERT DOOHAN proceeded to direct
some or all of the passengers to disembark from the boat and
assault FRANK GENNA on the South Dock and in the waters
surrounding the South Dock.
18. [FRANK GENNA] was assaulted, strangled, held under
water to the point of asphyxia and beaten at the direction of
ROBERT DOOHAN.
19. At all times pertinent hereto, ROBERT DOOHAN had a
legal duty to exercise reasonable care in connection with the
Plaintiff, FRANK GENNA.
20. The injuries and other losses sustained by the
Plaintiff were caused by the negligence and carelessness of
ROBERT DOOHAN in breach of the aforesaid duty.
21. As a further consequence of the negligence of ROBERT
DOOHAN, as aforesaid, and the injuries he sustained [FRANK
GENNA] suffered and continues to suffer from permanent brain
damage. Because of the serious nature of his injuries, he was
taken to St. Vincent‟s Medical Center by ambulance, and then
transferred via helicopter to Westchester Medical Center in
Valhalla, New York, for approximately 24 days. He has incurred
expenses for medical care and attention, physicians‟ care,
hospital care, medical apparatus, and pharmaceuticals, and it
is likely that he will incur further expenses in the future.
22. As a result of the negligence and carelessness of
ROBERT DOOHAN, as aforesaid, the Plaintiff, FRANK GENNA,
4

suffered great bodily injury consisting of, among other
things, severe and painful injury, emotional upset and mental
anguish, bruises and contusions about his body, and a severe
shock to his whole body and nervous system. He suffered severe
injuries including but not limited to cardiac arrest,
respiratory failure, hypoxic encephalopathy resulting in
permanent brain damage and multi-organ failure.
23. As a further consequence of the negligence of ROBERT
DOOHAN, as aforesaid, and the injuries sustained by him, the
Plaintiff, FRANK GENNA, has been required to restrict his
activities. He will never go about again as a well persons,
and some or all of his injuries, or the effects thereof, are
or are likely to be permanent in nature.
24. As a further consequence of the negligence of ROBERT
DOOHAN, as aforesaid, the Plaintiff, FRANK GENNA, who was
fifty years old and gainfully employed at the time, lost time
from said employment; was unable and has been unable to carry
on any of the usual duties of said employment; and his earning
capacity has been permanently impaired.
25. ROBERT DOOHAN, negligently failed to exercise
reasonable care in his conduct, and as a result the Plaintiff,
FRANK GENNA, sustained an injury to his person as a
consequence of such negligence.

[Genna complaint, Doc. #40-5, 25-29 (brackets added; emphasis in
original)]. The ninth count is captioned: “COUNT NINE –
(Negligence as to SAPNA TANDON) and contains language that is
substantively identical to that in the eighth count, except that
defendant Tandon is named in paragraphs 12 through 25. [Id. at
29-33].
The eighteenth count is captioned: “COUNT EIGHTEEN –
(Recklessness as to ROBERT DOOHAN),” and realleges paragraphs 1
through 18 of count 8. This count is substantively similar to
count eight, except that allegations of recklessness comprise
the remaining paragraphs of count eighteen. For example,
paragraph 19 of the eighteenth counts states that, “The injuries
and other losses sustained by the Plaintiff were caused by
ROBERT DOOHAN‟s disregard of the consequences of his actions and
the disregard for the rights of the Plaintiff, FRANK GENNA.” The
5

remainder of the count generally substitutes the term
“recklessness” for negligence in paragraphs 20 through 24, and
further alleges that,
25. ROBERT DOOHAN, recklessly failed to exercise
reasonable care in his conduct, and as a result the
Plaintiff, FRANK GENNA, sustained an injury to his person as
a consequence of such reckless conduct.
26. ROBERT DOOHAN‟s conduct, as aforesaid, was designed to
injure the Plaintiff with no just cause or excuse.
27. As a result of ROBERT DOOHAN‟s intentional, wanton,
reckless and outrageous conduct as aforesaid, the Plaintiff
has suffered and continues to suffer damages.

[Genna complaint, Doc. #40-5, 61-62]. The nineteenth count is
captioned: “COUNT NINETEEN – (Recklessness as to SAPNA TANDON),”
and contains language that is substantively identical to that in
the eighteenth count, except that defendant Tandon is named in
paragraphs 19 through 27. [Id. at 62-64].
The twenty-eighth count of the Genna complaint is
captioned: “COUNT TWENTY EIGHT – (Civil Assault and Battery as
to ROBERT DOOHAN),” and realleges paragraphs 1 through 18 of
count 8. [Id. at 78-81]. This count further alleges that, “The
injuries and other losses sustained by the Plaintiff were caused
by ROBERT DOOHAN‟S intentional assault and battery of the
Plaintiff, FRANK GENNA.” [Id. at 78]. Paragraphs 25 and 26 of
this count further allege, respectively, that, “ROBERT DOOHAN‟S
actions in confronting the Plaintiff, Frank Genna, and in
threatening the Plaintiff with physical contact and/or force
were intentional and highly unreasonable and constitute an
assault against Frank Genna,” and “ROBERT DOOHAN‟S actions in
confronting the Plaintiff, Frank Genna, resulting in unwelcome

6

physical contact and/or force were intentional and highly
unreasonable and constitute a battery against Frank Genna.” [Id.
at 80].
The thirty-fifth count of the Genna complaint is captioned:
“COUNT THIRTY FIVE – (Civil Conspiracy as to ROBERT DOOHAN, JOSE
GUZMAN, RYAN ULBRICK, BRANDON McNEAL, MICHAEL HERMANN, ROBERT
BARBIERI and MICHAEL SPRAGUE (sic)),” and realleges paragraphs 1
through 30 of count twenty eight (assault and battery claim).
[Genna complaint, Doc. #40-5, 96]. Count thirty five further
alleges that,
217. ROBERT DOOHAN [and other named defendants], through
unlawful means, conspired to commit the foregoing tortious
acts [assault and battery].
218. ROBERT DOOHAN [and other named defendants], by and
among other things threatening the Plaintiff with physical
harm and otherwise unlawfully committing such assault and
battery, as aforesaid, acted in furtherance of the object of
said conspiracy, that is, to injure the Plaintiff without
just cause or excuse.
219. ROBERT DOOHAN [and other named defendants], by and
among other things, acted in concert to flee the scene of the
incident, mislead the Bridgeport Police Department as they
sought to investigate the incident and otherwise failed to
truthfully answer the inquiries of the Bridgeport Police
Department following the incidents here at issue.
220. In particular, the Defendant, Robert Doohan,
instructed and directed his co-conspirators to conceal the
true facts and circumstances of the incidents described above
from the Bridgeport Police Department in the course of their
investigation so as to avoid civil and criminal liability as
the result of the events of May 28, 2010, as they are
described above.

[Id. at 97].
Counts thirty six and thirty seven of the Genna complaint
assert loss of consortium claims and allege that the negligent
conduct of Doohan and Sapna, respectively, deprived Donna Genna
of the companionship, services and society of her husband to her
damage. [Id. at 99]. Similarly, counts forty six and forty seven
7

of the Genna complaint assert loss of consortium claims and
allege that the intentional and/or reckless conduct of Doohan
and Sapna, respectively, deprived Donna Genna of the
companionship, services and society of her husband to her
damage. [Id. at 103].
Defendants‟ homeowners policy states, in pertinent part,
that, “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[…]” [Pl.‟s Loc. R. 56(a)(1) Statement, Doc. #40-1, at
¶46; Def.‟s Loc. R. 56(a)(1) Statement, Doc. #41-2, at ¶5].4 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 damage.” [Id.]. Additionally, the
homeowners policy contains the following exceptions to coverage:
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.
[…]
6.

We do not cover bodily injury or property damage

4

For all policy language cited hereafter, emphasis of defined terms has been
altered.
8

arising out of the ownership, maintenance, use, occupancy,
renting, loading, entrusting, loading or unloading of
watercraft away from an insured premises if the watercraft:
(a) has inboard or inboard-outboard motor power of
more than 50 horsepower[…]
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.

[Pl.‟s Loc. R. 56(a)(1) Statement, Doc. #40-1, at ¶46; Def.‟s
Loc. R. 56(a)(1) Statement, Doc. #41-2, at ¶5].
The homeowners policy also provides for guest medical
protection and states, in pertinent part that,
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 […]
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 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.

[Pl.‟s Loc. R. 56(a)(1) Statement, Doc. #40-1, at ¶46]. The
coverage for guest medical protection also contains the
exceptions recited above. [Id.].
Defendants‟ personal umbrella policy states, in pertinent
part, that
Allstate will pay when an insured becomes legally obligated
9

to pay for personal injury or property damage caused by an
occurrence.
Losses We Cover
Coverage applies to an occurrence arising only out of:
1. Personal activities of an insured, including the
lending by an insured of a land vehicle or
watercraft owned by an insured. Activities related
to any business or business property are not
covered.

[Pl.‟s Loc. R. 56(a)(1) Statement, Doc. #40-1, at ¶46; Def.‟s
Loc. R. 56(a)(1) Statement, Doc. #41-2, at ¶8]. The umbrella
policy defines “occurrence” as “an accident or continuous
exposure to conditions. An occurrence includes personal injury
and property damage caused by an insured while trying to protect
persons or property from personal injury or property damage.”
[Id.]. Like the homeowners policy, the umbrella policy contains
similar exceptions to coverage.
II.

STANDARD OF LAW
At the summary judgment stage, the moving party bears the

burden of demonstrating that no genuine issue exists as to any
material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 32325 (1986), and the court must resolve all ambiguities and draw
all inferences in favor of the non-movant. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Holcomb v. Iona
College, 521 F.3d 130, 137 (2d Cir. 2008). If the moving party
carries its burden, the party opposing summary judgment “may not
rely merely on allegations or denials.” Fed. R. Civ. P.
56(e)(2). Rather, the opposing party must “set out specific
facts showing a genuine issue for trial.” Id. In short, the
nonmovant “must do more than simply show that there is some
10

metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S.
at 249-50 (citations omitted).
A party may not create a genuine issue of material fact
simply by presenting contradictory or unsupported statements.
See SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978). Nor may he rest on “allegations or denials” contained in
his pleadings. Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995). A self-serving affidavit which
reiterates the conclusory allegations of the complaint in
affidavit form is insufficient to preclude summary judgment.
See Lujan v. Nat‟l Wildlife Fed‟n, 497 U.S. 871, 888 (1990).
“The nonmovant, plaintiff, must do more than present evidence
that is merely colorable, conclusory, or speculative and must
present concrete evidence from which a reasonable juror could
return a verdict in her favor.”

Page v. Connecticut Dep‟t of

Public Safety, 185 F. Supp. 2d 149, 152 (D. Conn. 2002)
(citations and internal quotation marks omitted).
III. DISCUSSION
Allstate seeks a declaration that it has neither a duty to
defend nor a duty to indemnify defendants for claims asserted in
the Genna complaint. Conversely, defendants, although there is
no counterclaim pending, have moved for summary judgment “on the
grounds that there are no genuine issues of material fact
11

concerning [Allstate‟s] duty to defend and indemnify” defendants
in the underlying litigation. [Doc. #41-1, 1].
A. Applicable Law
“The Connecticut Supreme Court has repeatedly stated that
an insurer‟s „duty to defend is considerably broader than the
duty to indemnify.‟” Allstate Ins. Co. v. Jussaume, 35 F. Supp.
3d 231, 235 (D. Conn. 2014) (quoting 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.‟” Jussaume, 35 F.
Supp. 3d at 235 (quoting DaCruz, 268 Conn. at 688 (alterations
in original)). Therefore, the Court turns first to whether
Allstate has a duty to defend in the underlying action.
Under Connecticut law5,
To defeat an insured‟s motion for summary judgment on a
claim for breach of the duty to defend, by contrast, or to
prevail on its own motion for summary judgment on such a
claim and/or on a counterclaim 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 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
5

The parties do not dispute the applicability of Connecticut law to the
present action.
12

which there might otherwise be coverage under the policy.

Lancia v. State Nat‟l Ins. Co., 134 Conn. App. 682, 691 (2012).
The Connecticut Supreme Court has further held that,
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. 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.” “If an allegation of the complaint falls even
possibly within the coverage, then the insurance company
must defend the insured.”

Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274
Conn. 457, 464-65 (2005) (citations omitted; alterations and
emphasis 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.”
Jussaume, 35 F. Supp. 3d at 236 (quoting Cmty. Action for
Greater Middlesex County, Inc. v. American Alliance Ins. Co.,
254 Conn. 387, 395 (2000) (internal quotations omitted;
alteration in original)).
Moreover, “[i]f an allegation falls even possibly within
the coverage, then the insurance company must defend the
insured.” Moore v. Cont‟l Cas. Co., 252 Conn. 405, 409 (2000)
(citing Schwartz v. Stevenson, 37 Conn. App. 581, 585 (1995)).
Conversely, “if the complaint alleges a liability which the
policy does not cover, the insurer is not required to defend.”
13

QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 354 (2001)
(citation omitted).

Accordingly, “whether 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.” Jussaume, 35 F. Supp. 3d at 236
(citation omitted). Therefore, the “inquiry into an insurer‟s
duty to defend focuses on the facts alleged, not legal
theories.” Id.
B. Whether the Genna Complaint’s Allegations Constitute an
Occurrence
Allstate first argues that the Genna complaint does not
allege facts establishing that Genna‟s injuries were the result
of an “occurrence,” as defined by the policies, and therefore
Allstate has no duty to defend. Defendants assert that, “[t]he
presence of negligence causes of action against both Tandon and
Doohan support that there was an „occurrence‟ under the
Homeowners and Umbrella Policies.” [Doc. #41-1, 11]. Defendants
further argue that allegations of both negligence and
intentional conduct can qualify as an occurrence, therefore
invoking Allstate‟s duty to defend and/or indemnify. [Id. at 1618].
a. Definition of “Accident”
The Court turns first to the definition of the term
“occurrence.” Although the policies define an occurrence as, “an
accident,” they do not define “accident.” However, in
interpreting similar insurance policy provisions, the

14

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).
Connecticut District Courts have come to similar conclusions
when evaluating insurance policies that define “occurrence” as
“an accident.” For example, Judge Hall “interpreted the term to
encompass „unintended, unexpected, or unplanned event[s].”
Kemper Independence Ins. Co. v. Tarzia, Civ. No. 3:11-cv-394
(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)); see also Truck Ins. Exchange v. Spada, et al., Civil No.
3:06CV1060(AVC), 2007 WL 2071629, at *3 (D. Conn. July 16, 2007)
(citing Commercial Contractors Corp. v. American, 152 Conn. 31,
42 (1964)) (“It is well settled that coverage does not extend to
an insured‟s intentional torts where, as here, under the terms
of the policy, coverage is triggered by an “occurrence,” and an
“occurrence” is defined as an “accident.”). “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
15

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.”). With this in mind,
the Court turns to each count of the Genna complaint.
b. Counts Twenty Eight (Civil Assault and Battery) and Thirty Five (Civil
Conspiracy)
There is no genuine issue of material fact that claims
based on the allegations of counts twenty eight (civil assault
and battery) and thirty five (civil conspiracy) do not fall
within the scope of the policies‟ coverage. An “occurrence” does
not include intentional torts or other intentional actions.
Count twenty eight alleges that Genna‟s injuries were caused by
defendant Doohan‟s “intentional assault and battery” of
plaintiff, references the “direct and natural consequences of
[Doohan‟s] intentional acts[…],” and alleges that defendant
Doohan‟s “actions in confronting [Genna] […] were intentional
and highly unreasonable.” [Genna complaint, Doc. #40-5, 78-80
(emphasis added)]. Similarly, count thirty five alleges a civil
conspiracy to commit assault and battery and to mislead the
Bridgeport Police in their investigation of the incident. [Id.
at 96-98]. Accordingly, the Court finds there is no duty to
defend Doohan with respect to counts twenty eight and thirty
five of the Genna complaint.

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c. Counts Eight and Nine (Negligence) and Eighteen and Nineteen (Recklessness)6
Turning to the negligence counts of the Genna complaint,
Defendants first argue that because counts eight and nine allege
negligence causes of action, these “allegations by their very
nature suggest accidental or unintentional conduct and a breach
of a corresponding standard of care that produces damages.”
[Doc. #41-1, 13]. Allstate argues that, “Simply re-labeling
intentional conduct as negligence, when it is all based upon a
core set of facts that clearly implicates intentional acts is
insufficient to trigger insurance coverage.” [Doc. #40-2, 20].
For the reasons that follow, the Court rejects defendants‟
argument.
Connecticut law dictates that, “[t]he insurer‟s duty to
defend depends on whether the [underlying plaintiff] ha[s] in
[his] complaint, „stated facts which bring the injury within the
coverage [of the policy].‟” Jussaume, 35 F. Supp. 3d at 236-37
(quoting Allstate Ins. Co v. Korytkowski, No. CV044001464S, 2006
WL 1461121, at *4 (Conn. Super. Ct. May 9, 2006)); see also
Mara, 699 F. Supp. 2d at 448 (“Under the governing law of
Connecticut, the Connecticut Supreme Court has indicated that an
insurer‟s duty to defend is determined by the allegations in the
underlying complaint.” (citation omitted)). “Connecticut courts
look past the terminology in a pleading to grant summary
6

Although the Court only explicitly addresses the negligence counts, this
section of the ruling is applicable to counts 18 and 19 of the Genna
complaint to the extent that “reckless conduct is an aggravated form of
negligence.” Lewis v. Van Horn, CV075013724S, 2008 WL 249098, at *2 (Conn.
Super. Ct. Jan. 2, 2008)(citation omitted).
17

judgment for the insurer, holding there is no duty to defend a
negligence action which is actually based on intentional acts by
the insured.” Mara, 699 F. Supp. 2d at 456; see also Town of
Redding v. Elfire, LLC, 98 Conn. App. 808, 818 (2006)
(“Construction of a pleading is a question of law for the court
to determine and requires de novo review […] When a case
requires the court to determine the nature of a pleading, courts
are not required to accept the label affixed by the moving
party.”). In rejecting a similar argument made by defendants
Tandon and Doohan in a separate insurance coverage case arising
from the exact same underlying allegations as those at issue
here, Superior Court Judge Cole-Chu noted that, “The court must
evaluate the nature of the claim and whether it constitutes an
„occurrence‟ based solely on the facts alleged. Therefore, the
court is not bound by the causes of action or legal conclusions
set forth in the underlying complaints.” New London County Mut.
Ins. Co. v. Robert Tandon and Sapna Tandon, KNL-CV-13-6017658-S,
slip. op. at 9 (Conn. Super. Ct. Sept. 25, 2014); see also
Jussaume, 35 F. Supp. 3d at 236 (citation omitted) (“whether 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.”). The Court agrees with
Judge Cole-Chu and the above-cited supporting case law, and
therefore rejects defendants‟ argument that because counts eight
and nine are labeled “negligence,” and allege defendants‟ “legal
duty to exercise reasonable care,” then Allstate has a duty to
18

defend. Moreover, as will be discussed further below, the facts
alleged in the Genna complaint unambiguously implicate
defendants‟ intentional acts.
Next, defendants argue that facts alleged in the Genna
complaint could be interpreted as either intentional or
negligent acts, and therefore the court must rely upon the
interpretation favoring coverage. [Doc. #41-1, 15-16]. The Court
disagrees in light of the Genna complaint‟s unambiguous
allegations. First, the Court notes that the same factual
allegations, recited verbatim in section I above, are
reincorporated into each count against both defendants. “Merely
describing an action in terms of „negligence‟ is of no
consequence when the action itself „can only be deemed
intentional.‟ 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.‟” Mara, 699 F. Supp. 2d at
457 (quoting Middlesex Mut. Assur. Co. v. Rand, 1996 WL 218698,
at *2 (Conn. Sup. Ct. 1996)).
Even reading the Genna complaint in the light most
favorable to defendants, the complaint fails to allege facts
that Genna‟s injuries were the result of an accident. As Judge
Cole-Chu aptly concluded, in light of similar arguments
presented by defendants in the Superior Court matter,
Not counting the unfortunate fall off a dock of a member of
the Doohan-Tandon party, which is not alleged to have
caused injury or loss to Genna or Donna Genna, the facts
alleged in the underlying complaint, show no accident in
the alleged chain of events causing Genna‟s claimed
injuries and Donna Genna‟s claimed losses. To determine if
19

an event was intentional or accidental for purposes of
homeowners insurance policies, the court looks to the
motive of the acting party. See Capstone Building Corp. v.
American Motorist Ins. Co., 308 Conn. 760, 775, 67 A.3d 961
(2013). As was the case for the assault in Bullock, “reason
mandates that from the very nature of the act[s]” by Doohan
and Tandon of pursuing and directing others to assault
Genna, “harm to [him] must have been intended.” Unlike the
insured in Pasiak, whose motivation for assisting the
robber was murky, Doohan and Tandon‟s alleged actions –
progressing from yelling at Genna, to pursuing him in the
“Up & Over,” to throwing bottles at him, to directing his
assault – manifest a clear motive and intent to do harm
that was not abandoned despite ample opportunity. Even if
it is assumed that the person or persons who pushed Genna
into the water did not intend to cause his near drowning or
extensive injuries, intent is not determined by the outcome
of an act, but the act itself.
[…]
Despite the labels in the [] Genna Complaint[], the court
cannot interpret the alleged attack, injuries sustained by
Genna, and Losses claimed by Donna Genna as the product of
an “unforeseen” or “unplanned” event. Rather, they were the
direct result of Doohan‟s and Tandon‟s intentional actions
as they were alleged in the complaint[].

New London County Mut. Ins. Co., KNL-CV-13-6017658-S, slip. op.
at 11-12 (alterations added). After a careful review of the
insurance policies at issue and the allegations of the Genna
complaint, the Court agrees with Judge Cole-Chu‟s sound
conclusion that the complaint‟s allegations, “do not allege
facts of an ambiguous nature and cannot plausibly be interpreted
to have alleged anything other than the intentional acts of
Doohan and Tandon, which caused the injuries to Genna.” Id. at
10. Accordingly, the Court finds that the Genna complaint does
not allege facts sufficient to establish that Genna‟s injuries
arose from an “occurrence” as defined by the policies.
In support of finding coverage Defendants further submit
that, “It is clear, however, that Tandon and Doohan did not
20

engage in any direct or intentional contact with Genna.” [Doc.
#41-1, 17]. Defendants rely on the affidavit of Sapna Tandon,
which states in pertinent part that,
7. I was a passenger on the boat and was unaware that an
altercation was occurring at the time that it happened.
While I understand that an altercation took place between
several individuals, including Frank Genna, at no time
did I interact with Mr. Genna, direct others to interact
with Mr. Genna or physically make contact with Mr. Genna.
8. At no time did my husband leave the boat and interact
with or engage in a physical altercation with Mr. Genna.

[Doc. #41-11, Ex. 9, Tandon Aff. at ¶¶7-8]. Defendants further
argue that this affidavit is not self-serving and is
corroborated by the Bridgeport Police Report disclosed by
Allstate in discovery. [Doc. #43, 5].
As noted by defendants, the Connecticut Supreme Court has
stated that, “[a]n insurer may be obligated to provide a defense
not only based on the face of the complaint, but also if any
facts known to the insurer suggest that the claims fall within
the scope of coverage[…]” Hartford Casualty Ins. Co. v.
Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 466-67 (2005)
(emphasis added).

Accordingly, the Connecticut Supreme Court

has adopted “the sounder approach,” which “is to require the
insurer to provide a defense when it has actual knowledge of
facts establishing a reasonable probability of coverage.” Id.
(citation omitted; emphasis added). Despite defendants‟ argument
to the contrary, the police report does not provide facts that
would suggest the claims in the Genna complaint fall within the
scope of the policies‟ coverage. Indeed, the police report in

21

large part fails to offer much, if any, insight as to what
happened onboard the “Up & Over.” Although defendants are
correct that the police report does not implicate them in the
actual assault of Mr. Genna, the police report does not
exculpate them from the allegations in the Genna complaint. For
example, the police report notes that there was an initial
verbal altercation “between all parties” and that “words were
exchanged between [the victims] and the parties on board the „Up
& Over.‟”[Doc. #41-8, Ex. 6, 3]. The police report also notes
that defendant Doohan was driving the “Up & Over,” which “turned
around and docked several boat slips West of [Mr. Genna‟s]
vessel.” [Id.]. In fact, the police report largely confirms that
the incident at issue occurred in a similar manner as that
alleged in the Genna complaint. Simply, the police report does
not provide Allstate with facts establishing a reasonable
probability of coverage.
To the extent that Ms. Tandon‟s largely self-serving
affidavit denies the allegations in the Genna complaint, the law
is clear that, “[t]he obligation of the insurer 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 coverage.”
Bd. of Ed. V. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 4041 (2002). Moreover, as noted above, where a moving party has
carried its burden of proving no issue of material fact, the
party opposing summary judgment “may not rely merely on
22

allegations or denials.” Fed. R. Civ. P. 56(e)(2). Indeed, the
opposing “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.,
475 U.S. at 586.

In that regard, a party may not create a

genuine issue of material fact simply by presenting
contradictory or unsupported statements. See Research Automation
Corp., 585 F.2d at 33. Here, Ms. Tandon‟s affidavit consists of
unsupported statements, which simply shows “some metaphysical
doubt as to the material facts.” Contrary to defendants‟
assertions, the police report does not corroborate Ms. Tandon‟s
self-serving denials of personal involvement. Therefore, the
Court finds no genuine issue of material fact which would
prevent the Court from granting summary judgment in Allstate‟s
favor.
Accordingly, as stated above, because the Genna complaint
does not state facts which bring Mr. Genna‟s injury within the
policies‟ coverage, Allstate has no duty to defend defendants in
the underlying action.
d. Counts Thirty Six, Thirty Seven, Forty Six and Forty Seven (Loss of Consortium)
The remaining counts of the Genna complaint (36, 37, 46,
47) assert Donna Genna‟s loss of consortium claims against
defendants in light of their alleged negligent or reckless
conduct. Although the Connecticut Supreme Court has held that a
liability policy may cover loss of consortium claims arising
from the bodily injury to a spouse, Connecticut Ins. Guar. Ass‟n
v. Fontaine, 278 Conn. 779 (2006), loss of consortium claims are
23

derivative of the injured spouse‟s cause of action. Izzo v.
Colonial Penn. Ins. Co., 203 Conn. 305, 312 (1987); see also id.
(“A cause of action for loss of consortium does not arise out of
a bodily injury to the spouse suffering the loss of consortium;
it arises out of the bodily injury to the spouse who can no
longer perform the spousal functions.”). Accordingly, because
the policies do not provide coverage for Genna‟s bodily
injuries, it therefore follows that there is also no coverage
for Donna Genna‟s loss of consortium claims.
C. Applicability of Exclusions
Because the Court finds that the Genna complaint fails to
allege facts which would constitute an “occurrence” under the
policies, it need not reach Allstate‟s remaining arguments
concerning the applicability of the intentional acts and
watercraft exclusions.7
7

Nevertheless, the Court notes, and further agrees with, Judge Cole-Chu‟s
holding in the New London County Mut. Ins. Co. matter that a watercraft
exception, which is nearly identical to that at issue here, applied to
exclude coverage in light of the facts alleged in the Genna complaint:
The facts of all counts against Doohan and Tandon in the
apportionment complaint and the Genna Complaint, as a matter of
law, that claims in both those pleadings arise out of the use of
an excluded watercraft, as defined in the policy. Doohan‟s and
Tandon‟s good faith dispute as to the meaning of “arise out of
the use of” does not, without more, mean that the language is
ambiguous. Based on Hogle, Board of Education, and Nantes, it is
clear that an accident “arising out of the use of” an automobile
is broadly construed to mean an accident that “„was connected
with,‟ „had its origins in,‟ grew out of,‟ flowed from,‟ or „was
incident to‟” the use of an automobile. No ambiguity appearing,
this court can think of no reason why such meaning should not be
applied to the facts of the present case, specifically in the
context of insurance policy watercraft exclusions.
In light of this broad construction, the principal, operative
events allegedly causing Genna‟s injuries and Donna Genna‟s
losses arise inescapably from the use of the “Up and Over.” Under
the Hogle interpretation, it is not necessary, as Doohan and
Tandon suggest, that the attack occurred on, or had been caused
24

D. Indemnification
Allstate also seeks a declaratory judgment that it has no
duty to indemnify defendants for any judgment arising from the
claims in the underlying action. “Connecticut law holds that the
duty to defend is much broader than the duty to indemnify. It
thus follows that where no to defend exists, there is no duty to
indemnify.” Mara, 699 F. Supp. 2d at 460 (citations omitted).
Therefore, because Allstate has no duty to defend in the
underlying action, it thus follows that Allstate also has no
duty to indemnify defendants from any damages arising from that
action.
IV.

CONCLUSION
For the reasons stated, Allstate‟s motion for summary

judgment [Doc. #40] is GRANTED. Accordingly, defendants‟ motion
for summary judgment [Doc. #41] is DENIED.
The Clerk will enter judgment in favor of plaintiff
Allstate Insurance Company and close this case.
by, the “Up and Over” for the exclusion to apply. By the use of
the “Up and Over,” and only by that use, Doohan, Tandon and the
others in their party are alleged to have “directed” the assault
on, and beating of, Genna. Doohan, Tandon and their passengers
arrived at the marina by means of the “Up and Over.” The alleged
altercation between Genna and Doohan, Tandon , and their
passengers became possible – “flowed from” – the transportation
of Doohan, Tandon, and their passengers from Captain‟s Cove to
the “south dock” in the “Up and Over.” […] The “Up and Over” was
the actual location of part of the altercation: Doohan and Tandon
yelled at, threw a bottle towards, and directed the assault on
Genna all while aboard the “Up and Over.” For all of these
reasons, as a matter of law, the claims in both complaints in the
underlying case arise out of the use of an excluded watercraft,
as defined in the policy.”
New London County Mut. Ins. Co., KNL-CV-13-6017658-S, slip. op. at 7-8.
Accordingly, although not explicitly argued by defendants, to the extent they
seek coverage under the homeowners policy‟s guest medical protection, such
coverage would be excluded by the watercraft exception.
25

This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge [Doc. #23] on
October 18, 2013.
ENTERED at Bridgeport this 25th day of March 2015.

____/s/__
______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

26