Authored by: Joe Ciollo

Superior Court – Arbitration Decision – Collateral Estoppel

In Delnero v. Foremost Insurance Company, the plaintiff was driving a limousine that was struck by another vehicle.  The collision resulted in personal injuries to the plaintiff and property damage to the limousine company.  In a prior action, both the plaintiff and the limousine company asserted claims against the operator of the tortfeasor vehicle, the owner of the tortfeasor vehicle, and Foremost.  The insurer for the tortfeasor owner (Safeco) paid $50,000 to settle all property damage claims.  The release expressly excluded the personal injury claims / Underinsured Motorist (“UIM”) claims and loss of income/billing claims of the plaintiff and limousine company.  The remaining claims against tortfeasor operator and owner were submitted to binding arbitration, resulting in a “general verdict” award of $125,000 in favor of the plaintiff and limousine company.  Foremost, which did not participate in the arbitration, had UIM coverage limits of $250,000 / $500,000 per person / accident.  Foremost moved for summary judgment, arguing that there was a binding arbitration decision that awarded the plaintiff $125,000 that was paid by the tortfeasor’s insurance such that the plaintiff was collaterally estopped from recovering on his UIM claim.  The Court observed that unlike other cases where a prior arbitration award involved only a claim of bodily injury, here there was no way to determine how much of the arbitration award was attributable to the plaintiff’s bodily injury claim.  For this reason, the general verdict could not serve as a basis for collateral estoppel.  The Court observed that at most, the plaintiff was collaterally estopped from claiming that his bodily injury and loss of revenues damages combined exceed $125,000.  Foremost’s UIM coverage only applied to bodily injury damages in excess of the $100,000 bodily injury limit of the Safeco policy.  Because the arbitrator’s award combined bodily injury damages with loss of revenue damages, the Court could not discern what the award was for bodily injury damages.  Furthermore, Foremost did not meet its burden of showing how much of the $125,000 was actually paid by Safeco to the plaintiff.  The motion for summary judgment was denied.

Superior Court – Property Coverage – Exclusions

In Zalewski v. Travelers Home and Marine Insurance Company, the plaintiff’s boat suffered a mechanical breakdown while the plaintiff was fishing, resulting in the plaintiff having the boat towed to a repair shop.  The insurer limited its payments to $800 for towing on the basis of a coverage sub-limit, and did not pay for repair costs.  The plaintiff filed suit, alleging a breach of contract, as well as violation of the Connecticut Unfair Trade Practices Act (“CUPTA”) premised on a violation of the Connecticut Unfair Insurance Practices Act (“CUIPA”).  The insurer filed a motion for summary judgment on all counts on the basis of enumerated exclusions in the insurance policy that excluded coverage for loss or damage caused by or resulting from corrosion.  The plaintiff argued that there were genuine issues of material fact concerning the cause of the mechanical failure and the subsequent claim denial.  The insurer establish the cause of the mechanical failure by relying on the plaintiff’s deposition testimony, a prior statement that the plaintiff made to the insurer, and an invoice from the repair shop.  The Court found that the plaintiff failed to submit any evidence to support his claims that the policy exclusion for corrosion only related to long term neglect and did not apply to mild corrosion or that the policy exclusion should be interpreted in such a way.  The Court rejected the plaintiff’s unsupported contention that the mechanical breakdown may have been caused solely by improperly stacked battery poles, and the plaintiff’s argument that nothing in the policy precluded coverage for mechanical breakdown being caused by improperly stacked battery poles or caused in part by corrosion.  As for the plaintiff’s claim of CUPTA violations, the complaint did not contain allegations that the insurer committed or performed any acts with such frequency as to indicate a general business practice as required under CUIPA, but only alleged a single, isolated act.  The insufficient CUTPA claim could not remedied through repleading.  The insurer’s motion for summary judgment was granted on all counts.

District Court – Liability Coverage – Duty to Defend

In Kingstone Insurance Company v. Bottone et al, the plaintiff insurer filed a declaratory judgment action seeking an order that it had no duty to defend or indemnify its insured in connection with an underlying state court action in which it was alleged that an infant child sustained numerous life-threatening injuries as the result of abuse while in the care of the insured.  Through a motion for summary judgment, the insurer argued that the claims brought in the underlying action were not the result of an “occurrence” as that term is defined in the applicable insurance policy.  The insurer also argued that if the claims were within the scope of the policy’s coverage provisions, the policy had two separate exclusions which applied to the claims brought in the underlying action.  One exclusion was for bodily injury or property damage arising out of sexual molestation, corporal punishment, or physical and mental abuse.  Another exclusion was for bodily injury or property damage that is expected or intended by the insured.  Although the plaintiffs in the underlying action labeled several counts of their complaint as negligence, the Court determined that the allegations read as a whole could not be said to arise out of an “occurrence” as that term was used within the scope of the coverage provision.  The insured attempted to point to extrinsic evidence which established the possibility of coverage under the policy, but the Court disagreed with these arguments.  The Court also found that both coverage exclusions relied upon by the insurer were implicated by the allegations in the underlying action.  As a result, the motion for summary judgment was granted.