Allstate Insurance Company v. Tarantino

Filing 35

ORDER denying 20 Motion for Summary Judgment; granting in part and denying in part 28 Cross-Motion for Summary Judgment. The Clerk is directed to administratively close this case, without prejudice to reopening by any party following the resolution of the state-court action. Signed by Judge Stefan R. Underhill on 6/23/2016. (Buttrick, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALLSTATE INSURANCE COMPANY,
Plaintiff,

No. 3:15-cv-62 (SRU)

v.
LOUIS TARANTINO, III,
Defendant,
v.
JAMES DIMON,
Intervenor.

RULING AND ORDER
This insurance coverage dispute arises out of a personal injury action filed by James M.
Dimon against Louis Tarantino III in Milford Superior Court, Docket No. AAN-cv-14-6016923S. Allstate Insurance Company (―Allstate‖) seeks a declaratory judgment that it does not owe a
duty to defend or indemnify Tarantino under a homeowners‘ insurance policy issued to his
parents. (doc. 1) On October 15, 2015, Allstate filed a motion for summary judgment. (doc. 20)
Because Tarantino has failed to defend himself in this suit in any meaningful way, Dimon was
granted permission to intervene, (doc. 27), and filed a cross-motion for summary judgment on
February 29, 2016, (doc. 28). I held a hearing on the motions for summary judgment on May 16,
2016. (doc. 34)
For the following reasons, I deny in part Allstate‘s motion for summary judgment with
respect to the duty to defend Tarantino, and grant in part Dimon‘s motion for summary
judgment on that issue. I have determined that it is premature to rule on whether Allstate has a

duty to indemnify Tarantino, and accordingly, both motions are denied without prejudice with
respect to whether Allstate has a duty to indemnify Tarantino.
I.

Standard of Review
Summary judgment is appropriate when the record demonstrates 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment).
When ruling on a summary judgment motion, the court must construe the facts of record
in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398
U.S. 144, 158–59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d
Cir. 1992) (court is required to ―resolve all ambiguities and draw all inferences in favor of the
nonmoving party‖). When a motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving party may not rest upon the
mere allegations or denials of the pleadings, but must present sufficient probative evidence to
establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
―Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.‖ Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving

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party submits evidence that is ―merely colorable,‖ or is not ―significantly probative,‖ summary
judgment may be granted. Anderson, 477 U.S. at 249–50.
The mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material
fact. As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.
Id. at 247–48. To present a ―genuine‖ issue of material fact, there must be contradictory
evidence ―such that a reasonable jury could return a verdict for the non-moving party.‖ Id. at
248.
If the nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a situation, ―there can be ‗no genuine issue as to
any material fact,‘ since a complete failure of proof concerning an essential element of the
nonmoving party‘s case necessarily renders all other facts immaterial.‖ Id. at 322–23; accord
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant‘s
burden satisfied if he can point to an absence of evidence to support an essential element of
nonmoving party‘s claim). In short, if there is no genuine issue of material fact, summary
judgment may enter. Celotex, 477 U.S. at 323.
II.

Background
A. Relevant Insurance Policy Provisions
Louis Tarantino, Jr. and Marylynne Tarantino carry a homeowners‘ insurance policy

through Allstate in the amount of $500,000 (the ―Policy‖), which was in effect during all
relevant periods. Pl.‘s Br., Ex. A.
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The Policy includes the following relevant definitions:
―Insured person(s)‖ — means you and, if a resident of your
household:
(a) any relative; and
(b) any dependent person in your care.
Id. at 19. The parties apparently agree that Louis Tarantino III (―Tarantino‖), the adult son of
Louis and Maylynne Tarantino, falls under the definition of an ―insured person.‖
―Occurrence‖ — means an accident including continuous or
repeated exposure to substantially the same general harmful
conditions during the policy period, resulting in bodily injury or
property damage.
Id. at 20. The word ―accident‖ is not defined.
Under Section II of the Policy, entitled ―Family Liability and Guest Medical Protection,‖
the Policy includes ―Family Liability Protection‖ under Coverage X and ―Guest Medical
Protection‖ under Coverage Y. Id. at 38, 40. Both provisions appear to cover a claim for a suit
for damages against an insured person caused by the activities of the insured person and both
include substantially similar relevant language1 as follows (from Coverage X):
Subject to the terms, conditions and limitations of this policy,
Allstate will pay damages which an insured person becomes
legally obligated to pay because of bodily injury . . . arising from
an occurrence to which this policy applies, and is covered by this
part of the policy.
....
Losses We Do Not Cover Under Coverage X
We do not cover any bodily injury . . . intended by, or which may
reasonably be expected to result from the intentional or criminal

1

I note two distinctions that do not appear to have relevance in the present case: first, Coverage X covers both
bodily injury and property damage, whereas Coverage Y covers only bodily injury; and second, Coverage X
provides coverage for damages that an insured person is ―legally obligated‖ to pay arising out of an occurrence,
whereas Coverage Y provides coverage for ―reasonable expenses‖ arising out of an occurrence.

4

acts or omissions of, an insured person. This exclusion applies
even if:
a) such bodily injury . . . is of a different kind or degree than that
intended or reasonably expected; or
b) such bodily injury . . . is sustained by a different person than
intended or reasonably expected.
This exclusion applies regardless of whether or not such insured
person is actually charged with, or convicted of a crime.
Id. at 38; see also id. at 40.
B. The State-Court Complaint
The following allegations are drawn from the state-court complaint Dimon filed in
Milford Superior Court on September 2, 2014. See Pl.‘s Br., Ex. B [hereinafter, ―State Compl.‖].
On October 19, 2012, Dimon and Tarantino were at the house of their close friend Craig Zysk.
Id. at ¶¶ 11, 12. At about 6:30 p.m., Dimon told Tarantino and Zysk that he was not feeling well
and went to lie down on a couch in the basement. Id. at ¶ 13. At about 8:12 p.m., Tarantino
picked up an air gun that another friend, Beau Bowden, had left at Zysk‘s house the previous
day. Id. at ¶ 14. Tarantino aimed the gun at the floor and pulled the trigger several times. Id. at ¶
15. Gas was released from the gun, but no pellets fired. Id. Tarantino then decided to go
downstairs and ―startle and/or waken‖ Dimon by pulling the trigger of the air gun, which would
cause the release of gas and a firing sound. Id. at ¶ 16. At that point, Tarantino did not believe the
air gun was loaded. Id. at ¶ 17.
Tarantino pulled the trigger several times in close proximity to Dimon, releasing gas. Id.
at ¶ 18. One pull, however, released a pellet from the air gun, which struck Dimon in the left eye
and caused significant injuries. Id. at ¶¶ 19, 21. The complaint does not specify whether the

5

pellet was discharged from the air gun‘s chamber, magazine, or pellet clip, and instead expressly
leaves open each of those possibilities. See id. at ¶¶ 20(e)–(f).
On the basis of those allegations, Count One of the state-court complaint brings a claim
against Tarantino sounding in negligence. Id. at ¶¶ 21–24. Allstate is currently providing a legal
defense to Tarantino. See Pl.‘s Br., Ex. C.
III.

Discussion
Allstate makes two arguments in support of its motion for summary judgment: (1) the

complaint does not allege that Dimon‘s injuries were caused by an ―occurrence‖ and (2) even if
the complaint does adequately allege an occurrence, the ―intentional or criminal acts‖ exception
applies to bar coverage. Before reaching those arguments, however, I must consider how the
basic principles of liability insurance law require me to approach the case at this stage of the
proceedings.
A. The Duty to Defend and the Duty to Indemnify
―Under Connecticut law, it is well established that a liability insurer has a duty to defend
its insured if the pleadings‖ against the insured ―allege a covered occurrence.‖ Ryan v. Nat’l
Union Fire Ins. Co., 692 F.3d 162, 167 (2d Cir. 2012) (quoting Hartford Cas. Ins. Co. v.
Litchfield Mut. Fire Ins. Co., 274 Conn. 457 (2005) (alterations omitted)). ―In determining
whether a claim falls within the scope of an insurance policy, the Supreme Court of Connecticut
‗construes broad policy language in favor of imposing a duty to defend on the insurer,‘ and
‗requires a defense if an allegation of the complaint falls even possibly within the coverage.‘‖
Id. (quoting Hartford Cas. Ins. Co., 274 Conn. at 466 (2005) (alterations omitted)).
―[A]n insurer‘s duty to defend is measured solely by whether the complaints against the
insured allege facts that, if proven true, would present a claim within the scope of the policy‘s
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coverage. It is well settled that an insurer‘s duty to defend, being much broader in scope and
application than its duty to indemnify, is determined by reference to the allegations contained in
the [underlying] complaint.‖ Coregis Ins. Co. v. American Health Found., 241 F.3d 123, 127 (2d
Cir. 2001) (internal citations and quotation marks omitted) (quoting Springdale Donuts, Inc. v.
Aetna Cas. and Sur. Co., 247 Conn. 801, 807 (1999)). ―[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.‖ Middlesex Ins. Co. v. Mara, 699 F. Supp. 2d 439, 448 (D. Conn. 2010) (quoting
Hartford Cas. Ins. Co., 274 Conn. at 463)).
―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.‖ Board of Educ. of City of Bridgeport v. St. Paul Fire and Marine Ins. Co., 261 Conn. 37,
48–49 (2002) (citing Home Ins. Co. v. St. Paul Fire & Marine Ins. Co., 229 F.3d 56, 66 (1st Cir.
2000)). ―The duty to indemnify arises only if the evidence adduced at trial establishes that the
conduct actually was covered by the policy.‖ Cambridge Mutual Fire Ins. Co. v. Ketchum, 2012
WL 3544885, at *6 (D. Conn. Aug. 16, 2012) (emphasis in the original).
―The duty to defend and the duty to indemnify are separable issues, and it is not required
that they be decided at the same time.‖ Id. ―Indeed the Connecticut Supreme Court has held that
granting a declaratory judgment on the issue of indemnification is improper when the underlying
action is still pending and the duty to defend the insured has arisen.‖ Id. at *7.
Those principles guide this Ruling and Order in the following ways: first, ―[b]ecause the
duty to indemnify in the present case depends on the factual basis upon which judgment, if any,
is rendered against [Tarantino] in the underlying state court case[], a ruling on the duty to

7

indemnify is premature at this time.‖ State Farm Mut. Auto. Ins. Co. v. Simonelli, 2014 WL
3738091, at *8 (D. Conn. July 28, 2014). Accordingly, my ruling on whether Allstate has a duty
to indemnify Tarantino will be reserved, and the remainder of this Ruling and Order will
consider only the duty to defend.
Second, with respect to the duty to defend, I note that although Dimon has provided
additional materials, Allstate correctly points out that my inquiry should be limited to a
consideration of the allegations of the complaint and terms of the insurance policy. See Cmty.
Action for Greater Middlesex Cty., Inc. v. Am. All. Ins. Co., 254 Conn. 387, 395 (2000); Moore
v. Cont’l Cas. Co., 252 Conn. 405, 409 (2000); see also Allstate Ins. Co. v. Jussaume, 35 F.
Supp. 3d 231, 238 (D. Conn. 2014) (―[I]n presenting countervailing proof, . . . the insured[ ] is
necessarily limited to the provisions of the subject insurance policy and the allegations of the
underlying complaint.‖) (quoting Lancia v. State Nat. Ins. Co., 134 Conn. App. 682, 691 (2012),
cert. denied, 305 Conn. 904 (2012)). Accordingly, I do not consider any evidence beyond the
state-court complaint and the Policy at this time.
B. Does the Complaint allege an ―Occurrence‖?
Allstate argues that Dimon‘s injuries do not arise from an occurrence because they were
the direct and foreseeable consequence of an intended mechanical act (namely, Tarantino pulling
the trigger), regardless of whether Tarantino acted with a subjective intent to cause physical
harm.
As set out above, the Policy provides coverage only for bodily injury ―arising from an
occurrence.‖ An occurrence, in turn, is defined as an accident, and the term accident is not
defined. What appears to be the most commonly cited Connecticut Supreme Court case on the
issue has defined an ―accident‖ as:
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―[a]n unintended and unforeseen injurious occurrence‖; (emphasis added)
Black‘s Law Dictionary (7th Ed.1999); ―an occurrence for which no one is
responsible ‖; (emphasis added) Messina v. New Haven, 119 Conn. 166,
168, 174 A. 188 (1934); and ―an event of unfortunate character that takes
place without one’s foresight or expectation.‖ (Emphasis added; internal
quotation marks omitted.)[.] Metropolitan Life Ins. Co. v. Aetna Casualty
& Surety Co., 255 Conn. 295, 307, 765 A.2d 891 (2001), quoting Arthur
A. Johnson Corp. v. Indemnity Ins. Co. of North America, 7 N.Y.2d 222,
228, 164 N.E.2d 704, 196 N.Y.S.2d 678 (1959).
Allstate Ins. Co. v. Barron, 269 Conn. 394, 409 n.10 (2004); see also Commercial Contractors
Corp. v. Am. Ins. Co., 152 Conn. 31, 42 (1964) (defining accident as ―an unexpected
happening‖); Providence Washington Ins. Grp. v. Albarello, 784 F. Supp. 950, 953 (D. Conn.
1992) (―An ‗accident,‘ in the words of one eminent authority, is a ‗sudden event or change
occurring without intent or volition through carelessness, unawareness, ignorance, or a
combination of causes and producing an unfortunate result.‘‖) (quoting Webster‘s Third New
International Dictionary of the English Language (Merriam, 1976) at 11). Under Connecticut
law, the relevant inquiry in determining whether an occurrence constitutes an accident is
―whether the event causing the injury was an accident, not whether the injury itself is
accidental.‖ Allstate Ins. Co. v. Smudin, 2009 WL 890912, at *5 (D. Conn. Mar. 31, 2009).
The parties here disagree about the extent to which a conscious mechanical act of an
actor renders the results ―intentional‖—that is to say, non-accidental—and whether the insured
person‘s subjective beliefs and other circumstances can factor into the analysis. As the Michigan
Supreme Court suggested in a factually similar case, where to draw that line is a question of
policy, rather than a clear application of rules:
Actions have consequences, and with sufficient effort, a connection
between an occurrence and a prior action on the part of the insured can
invariably be identified. However, merely because, in retrospect, an
insurer is able to identify such a connection, does not mean that what took
place was not an ―accident.‖ If one is driving too fast on a highway, not
intending to but nonetheless causing an accident, it can hardly be denied
that what has resulted is an accident despite the fact that it might be
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traceable to ―objectively unreasonable‖ conduct by the insured, i.e. driving
too fast on a highway.
Allstate Ins. Co. v. McCarn, 466 Mich. 277, 289 (2002) (―McCarn I‖).
Chief Judge Janet C. Hall, in State Farm Mutual Automobile Insurance Company v.
Simonelli, 2014 WL 3738091 (D. Conn. July 28, 2014), points out that, as in the present case, the
insurance company‘s argument that the conduct is not an occurrence ―hinge[s] on a claim that
[the insured person]‘s actions were intentional rather than reckless or negligent.‖ Id. at *4; see
also id. (―The Connecticut common law definition of ‗accident‘ focuses on lack of intent.‖)
(quoting Allstate Ins. Co. v. Wilson, 2014 WL 1762055, at *3 (D. Conn. April 30, 2014)). She
observes that a finding of intentionality (and therefore a non-―accident‖) requires two elements:
―(1) the insured must have intended to commit the act and (2) to commit the injury that resulted.‖
Id. at *5 (quotation marks and citations omitted). The first element captures the volition of the
insured person engaging in the mechanical acts, whereas the second element captures the
subjective and objective question of foreseeability, as follows:
The second element—intent to cause the injury that resulted—may be
inferred at law in circumstances where the alleged behavior in the
underlying action is so inherently harmful that the resulting damage is
unarguably foreseeable. Our courts apply this legal inference to limited
circumstances where the nature of the defendant‘s acts inherently included
the desire to cause the harm that resulted.
Id. (quotation marks and citation omitted); see also Blue Ridge Ins. Co. v. Honegan, 2001 WL
1707091, at *2 (Conn. Super. Ct. Dec. 21, 2001) (―Intent, on the other hand, involves ‗a state of
mind . . . about consequences of an act (or omission) and not about the act itself . . . [that]
extends not only to having in the mind a purpose (or desire) to bring about given consequences
but also to having in mind a belief (or knowledge) that given consequences are substantially
certain to result from the act.‘‖) (emphasis in original; citation omitted); Allstate Ins. Co. v.
Wilson, 18 F. Supp. 3d 156, 161 (D. Conn. 2014) (―[T]he court examines the alleged activities in
10

the complaint to determine whether the insured intended to commit both the acts and the injuries
that resulted. If it appears both were intended, then coverage will be denied regardless of how
the insured‘s conduct is characterized in the pleadings.‖) (emphasis added; quotation marks and
citation omitted).
Consistent with the approach described in Simonelli, both federal and state court judges
have found ―occurrences‖ in circumstances with a highly foreseeable risk of the resulting harm,
where the complaint failed to adequately allege the intent of the insured person to cause harm.
For instance, in Allstate v. Berube, 84 Conn. App. 464 (2004), the court found an ―occurrence‖
where an insured person secretly brought a loaded, sawed-off shot gun into bed with his wife and
infant daughter that went off when his wife rolled over it, shooting her in the back of the head.
Id. at 470. The court reasoned that the shooting was an accident because the insured person did
not actually pull the trigger. Id. But although the facts are reversed in this case (i.e., Tarantino
did pull the trigger, thinking the gun was unloaded), a bodily injury would appear to have been
less foreseeable in the present case than in Berube. Similarly, in Simonelli, Judge Hall found an
―occurrence‖ where the insured person voluntarily drove under the influence of PCP, stating that
such conduct ―certainly constitutes a flagrant disregard for the safety of others. However,
without additional facts, it does not of itself denote an intention to harm others.‖ 2014 WL
3738091, at *6; see also Allstate Ins. Co. v. Neleber, 2015 WL 5442828, at *5 (D. Conn. Sept.
15, 2015) (finding an occurrence where an insured person caused injury when he ―swung his
arms when he was inattentive to the presence of individuals around him‖).
Taking the subjective intentions of the insured person into account when determining
whether an incident is an ―occurrence‖ is also the most logical way to reconcile the provisions in
the Policy. After stating that the Policy will cover bodily injury ―arising from an occurrence‖

11

subject to certain exceptions, both Coverage provisions exclude bodily injury ―intended by, or
which may reasonably be expected to result from the intentional or criminal acts or omissions of,
an insured person.‖ The ―reasonably expected‖ language is clearly intended to encompass
foreseeable injuries. Thus, it must be possible for the coverage of injury arising from
―occurrences‖ to include bodily injury foreseeably arising from some intentional or criminal acts
in an accidental way, or there would be no need to exclude coverage for such situations.
Conversely, finding an ―occurrence‖ only in the absence of a volitional act, as Allstate seems to
suggest, would render the Policy virtually useless, allowing coverage only for ―occurrences that
were truly unexplainable.‖ McCarn I, 466 Mich. at 289.
Finally, the Simonelli approach is consistent with Connecticut‘s policy of having a
broader duty to defend than to indemnify. See, e.g., Ryan v. Nat’l Union Fire Ins. Co. of
Pittsburgh PA, 692 F.3d 162, 167 (2d Cir. 2012) (finding a duty to defend ―‗[i]f an allegation of
the complaint falls even possibly within the coverage.‘‖) (quoting Hartford Cas. Ins. Co., 274
Conn. at 463). The duty to defend under this Policy is triggered by allegations that there was an
accident (i.e., occurrence) during the policy period, but if the state court later finds liability based
on an intent to harm, then the duty to indemnify will not apply. And the countervailing policy
consideration of a potential for collusion between the insured person and the state-court plaintiff,
as suggested in Providence Washington Ins. Grp. v. Albarello, 784 F. Supp. 950, 954–55 (D.
Conn. 1992), boils down to a risk of perjury that is unfortunately present in every case and seems
no more likely in this context than in any other.
Applying those principles here, the state-court complaint clearly alleges Tarantino did
intend to engage in the mechanical acts leading up to the shooting, thereby meeting the first
prong of the Simonelli test: it states that Tarantino ―pulled the trigger [of the air gun] a number of

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times while in close proximity to where [Dimon] was laying [sic] on the couch at the premises so
it would make a loud firing noise and startle [Dimon].‖ State Compl. at ¶ 18; see also id. at ¶
20(a) (―[Tarantino] pointed the Crosman AirGun model number 1077 in the direction of where
the Plaintiff, JAMES M. DIMON, was laying on the couch and pulled the trigger.‖); Blue Ridge
Ins. Co., 2001 WL 1707091, at *3 (observing that pulling the trigger of a gun is an intentional
act).
Both parties agree there is no allegation that Tarantino subjectively intended to shoot
Dimon, or otherwise cause him any physical harm, although, as discussed further below, Allstate
suggests that Tarantino did either intend or expect to cause mental harm by scaring Dimon.
Instead, the complaint alleges that Tarantino did not subjectively believe there were any pellets
in the air gun, State Compl. at ¶ 17, and more importantly, it alleges that he made an effort to
confirm that belief by firing the air gun multiple times at the floor and determining that no pellets
were released, id. at ¶ 15. Tarantino may have had more effective ways of ensuring that the air
gun was unloaded; however, as the Michigan Supreme Court observed in McCarn I, where a
teenager shot and killed his friend with what he believed was an unloaded gun, carelessness and
poor judgment should not exclude negligent conduct from coverage:
While it may be considered quite obvious that [the insured person‘s]
conduct was careless and foolish, it was negligence that simply did not
rise to the level that he should have expected to result in harm. Otherwise,
liability insurance coverage for negligence would seem to become
illusory. We must be careful not to take the expectation of harm test so far
that we eviscerate the ability of parties to insure against their own
negligence . . . .
466 Mich. at 287–88. Allstate attempts to manufacture an intent to cause harm by arguing that
the resulting injuries were a foreseeable outcome; however, for the reasons discussed above, the
Policy itself indicates that the foreseeability inquiry should be addressed with respect to whether

13

the ―intentional or criminal acts‖ exception should apply, rather than whether the incident in
question was an occurrence at all.
In the alternative, Allstate argues that the complaint‘s allegation that Tarantino intended
to ―startle and/or wake‖ Dimon, State Compl. at ¶ 16, is sufficient to show that he intended to
cause Tarantino mental harm. It then argues that intent should be transferred to the harm that
actually occurred, rendering it non-accidental. In support of that reasoning, Allstate relies on
Blue Ridge Ins. Co. v. Honegan, 2001 WL 1707091 (Conn. Super. Ct. Dec. 21, 2001). See Pl.‘s
Reply Br. at 8. In Blue Ridge, the court considered whether an insured person who fired his gun
in the air to scare the state-court plaintiff off of his property, which actions resulted in mental
harm to the state-court plaintiff, could be covered by an insurance policy with a similar
―occurrence‖ requirement. But Allstate‘s suggestion that the case is analogous because, like in
the present case, the insured person shot a gun with the intent to scare the state-court plaintiff is
not persuasive. The main question in Blue Ridge was whether the insured person had
intentionally fired the weapon because he argued that it was essentially an instinctual, nonvolitional act. See Blue Ridge Ins. Co., 2001 WL 1707091 at *3; see also Blue Ridge Ins. Co. v.
Honegan, 2000 WL 1227307, at *6 (Conn. Super. Ct. Aug. 14, 2000) (in a previous ruling,
holding that the insured person had created a ―genuine issue of material fact‖ by stating in a
deposition that ―he did not intentionally fire the gun, that it was a reaction, an ‗accident‘‖). And
once the court had determined that shooting the gun was an intentional mechanical act, it could
easily find that the injury that actually resulted—namely, severe emotional distress—was both
substantially certain to occur and different only in degree from the insured person‘s desired result
of scaring the victim off of his property. See Blue Ridge Ins. Co., 2001 WL 1707091 at *4.

14

By contrast, in the present case, the allegations that Tarantino intended to ―startle and/or
wake‖ Dimon are barely sufficient to make out an intent to cause Dimon emotional harm.
Moreover, the Connecticut Supreme Court has held that the term ―bodily injury‖ does not
encompass emotional harm unaccompanied by physical symptoms. See Moore v. Cont’l Cas.
Co., 252 Conn. 405, 411–12 (2000); cf. Gen. Star Indem. Co. v. Millington, 2006 WL 1680985,
at *5–6 (Conn. Super. Ct. May 31, 2006) (distinguishing Moore on the grounds that the
emotional distress in Millington both arose from witnessing the bodily injury of another and
resulted in physical symptoms). Accordingly, Allstate‘s transferred intent theory would require
me to rely on a series of extremely speculative assumptions—first, that Tarantino‘s attempt to
―startle and/or wake‖ Dimon is sufficient to show an intent to cause emotional injury, and
second, that the intended emotional injury would also have been accompanied by physical
symptoms sufficient to constitute ―bodily injury‖ under the Policy. Although also not squarely
analogous, the reasoning of American Insurance Company v. Saulnier, 242 F. Supp. 257 (D.
Conn. 1965), is suggestive. In Saulnier, the court rejected the insurance company‘s argument for
no coverage where the insured person—a thirteen-year old boy—had thrown a bottle into a pool
with the intent to scare a girl, but had instead hit and injured another boy in the water. Id. at 261.
The court observed that in order to reach the conclusion that injuring the boy had been
intentional, it would have to engage in several legal fictions:
First, [the insured person‘s] intent to frighten the girl would have to be
transformed to an intent to cause bodily injury to her. Then, the intent to
injure her would have to be ‗transferred‘ to an intent to injure [the statecourt plaintiff]. There is no justification either in contract law or in public
policy for importing fictions into insurance policies.
Id. The Saulnier court‘s skeptical attitude toward legal fictions seems equally appropriate in the
present case, where I would have to transform Tarantino‘s intent to scare Dimon into an intent to

15

cause him bodily harm with what he believed to be an unloaded air gun, apparently on the offchance that a pellet would still be lodged in the mechanism.
In sum, I hold that, for the purpose of the duty to defend, the incident at issue was an
―occurrence‖ that could be covered under the Policy absent any exclusions.
C. Does the Intentional / Criminal Act Exclusion Apply?
Allstate argues that if the incident is an ―occurrence,‖ the Policy‘s exclusion for ―any
bodily injury . . . intended by, or which may reasonably be expected to result from the intentional
or criminal acts or omissions of, an insured person‖ nevertheless applies to bar coverage.
Because Allstate seeks the application of an exclusion clause to deny coverage, it has ―the
burden of demonstrating that the allegations of the underlying complaint cast that pleading solely
and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to
no other interpretation.‖ Simonelli, 2014 WL 3738091, at *3 (quotation marks and citation
omitted).
As discussed above, the complaint does not allege that Dimon‘s bodily injury was
―intended by‖ Tarantino. I thus consider whether the harm that resulted was ―reasonably
expected‖ to do so. First, the parties disagree over whether the ―reasonably expected‖ language
sets up a subjective or objective test—that is, whether the harm must have been ―reasonably
expected to result‖ by Tarantino himself, or by a reasonable person in those circumstance. That
disagreement is not made explicit, but rather can be inferred from Dimon‘s reliance on the
analysis in the plurality McCarn II opinion, which controversially filters the objective test
through the subjective beliefs of the insured person by asking what a reasonable person with
those beliefs would reasonably expect to occur. See Intervenor‘s Opp‘n Br. at 12 (quoting
Allstate Ins. Co. v. McCarn, 471 Mich. 283, 291 (2004) (―McCarn II‖)).
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A plain reading of the exclusion, however, suggests that a purely objective test is
appropriate here. The word ―reasonable‖ is generally understood as a signifier of the objective
test. Moreover, the language of the exclusion takes the insured person‘s subjective beliefs into
account separately with its ―intended by‖ clause. The placement of the word ―by‖ before the
―reasonably expected‖ clause, appears to be a further effort to distinguish the subjective beliefs
of the insured from the objectively foreseeable results of his conduct—to effectuate McCarn II’s
blended test, the sentence could read ―intended or reasonably expected to result by the insured,‖
but it does not.
Previous rulings within and outside of this district, examining substantially similar policy
language that harm be ―reasonably expected to result,‖ favor imposing an objective standard. For
instance, in Allstate Ins. Co. v. Linarte, 2007 WL 1677444 (Conn. Super. Ct. May 24, 2007), the
court considered two exclusions, one of which is identical to the one at issue in this case. The
Linarte court approvingly relied on the reasoning of Allstate Ins. Co. v. Simansky, 45 Conn.
Supp. 623 (Conn. Super. Ct. 1998), which observed that:
―While the condition ‗or . . . which are in fact intended‘ requires the
subjective or conscious desire of the insured to inflict harm, the condition
‗which may reasonably be expected‘ does not. To so require a subjective
intent for this condition would render this clause ‗wholly redundant.‘‖
Id. at *9 (quoting Simansky, 45 Conn. Supp. at 625); see also Tripp v. Allstate Ins. Co., 262 Ga.
App. 93, 95 (2003); Nationwide Mut. Fire Ins. Co. v. James, 2011 WL 382221, at *6 (E.D. Ky.
Feb. 3, 2011) (collecting similar cases).
On the present record, applying the objective standard, a jury could find that a reasonable
person would not have expected bodily injury to result from a gun that had been shot empty of its
pellets. The reasonable person is likely generally aware, from cases like this one, that guns and
related weapons believed to be unloaded may have a rogue projectile in the mechanism or
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magazine, and accordingly that pointing any kind of projectile-shooting object at someone‘s face
always poses some kind of risk. But although shooting blanks at the floor may not be the
smartest or most effective means of reducing that risk, every blank shot fired reduced the
foreseeability that the next pull would release a pellet.
Thus, because Allstate has not shown that Dimon‘s injury, as alleged in the complaint,
falls ―solely and entirely‖ within the policy exclusion, its motion for summary judgment is
denied with respect to its duty to defend.
IV.

Conclusion
I deny in part Allstate‘s motion for summary judgment with respect to the duty to

defend Tarantino (doc. 20), and grant in part Dimon‘s cross-motion for summary judgment
(doc. 28) on the same issue. I have determined that it is premature to rule on whether Allstate has
a duty to indemnify Tartantino, and accordingly, both motions are denied in part without
prejudice with respect to whether Allstate has a duty to indemnify Tarantino. Because the
remaining issue turns on the outcome of the state-court action, the Clerk is directed to
administratively close this case, without prejudice to reopening by any party following the
resolution of the state-court action.

So ordered.
Dated at Bridgeport, Connecticut, this 23rd day of June 2016.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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