Authored by: Joseph R. Ciollo

Superior Court – Underinsured Motorist Coverage – Arbitration

In Wedderburn et al v. Arbella Protection Insurance Company, Inc., the parties submitted to arbitration on the plaintiffs’ claims for Underinsured Motorist (“UIM”) coverage.  After the arbitrator issued a decision in the defendant’s favor, the plaintiff’s filed a motion to vacate the arbitrator’s decision, arguing that the arbitrator ignored binding precedent, misconstrued facts, and misapplied the law in other respects.  Further, in a reply to the defendant’s objection to the motion to vacate, the plaintiffs for the first time asserted that there had been evident partiality on the part of the arbitrator.  As to the initial grounds raised in the plaintiffs’ motion to vacate, the Court noted that the plaintiffs were required to do more than argue that the arbitrator was wrong or that the Court would have reached a different conclusion.  Rather, the plaintiffs were required to demonstrate that the decision reflected the arbitrator’s manifest disregard of the law.  Here, the plaintiffs did not mention the rigorous standards they must meet to establish that the arbitrator manifestly disregarded the law, nor did they explain how they claim to have met those standards.  The plaintiffs simply listed numerous ways in which they disagreed with the arbitrator’s analysis and conclusions.  As such, the Court found that the plaintiffs failed to establish any sound basis on which to vacate the arbitration decision.  As to the plaintiffs’ argument that there was evident partiality on the part of the arbitrator, the Court found this argument to be waived because it was not raised in plaintiffs’ motion to vacate.  Even if the argument had not been waived, the plaintiffs still failed to establish a basis to vacate the decision.  The plaintiffs argued that the arbitrator failed to disclose that he had previously represented a grandmother of the defendant’s counsel in a matter in which he had been retained by the grandmother’s insurer.  The Court doubted that such remote, prior representation created a conflict.  However, even if it did, the alleged conflict was in fact disclosed before the arbitration hearing commenced and the plaintiffs did not raise any objection to proceeding with the arbitration and the arbitrator.  Rather, the plaintiffs went ahead with the arbitration fully aware of this tenuous, prior relationship.  Moreover, the plaintiffs raised the issue only after they were disappointed by the arbitrator’s decision.  The plaintiff’s motion to vacate was denied.

Superior Court – Premises Liability – Duty to Defend

In Badolucco v. MAC-State Square, et al, an injured plaintiff filed a premises liability action against three defendants, MAC-State Square, LLC, FBE-State Square, LLC, and State-Market Hartford, LLC and alleged that they owned, possessed, controlled, operated and/or maintained the property in question.  The plaintiff alleged that she had attempted to enter an elevator when her foot caught the elevator door frame, which was higher than the corridor surface where flooring had been removed.  The foregoing defendants filed cross-claims and moved for summary judgment against another defendant, Belso Design & Build, Inc. (“Belso”), arguing that Belso breached a contractual duty to defend them against the plaintiff’s claims.  The existence of the indemnity clause in the applicable contract was not in dispute, but Belso argued that there were issues of fact genuinely in dispute regarding whether the plaintiff was injured as a result of Belso’s activities, rather than the moving defendants’ failure to control or warn patrons walking through the area of their building that was under construction.  Belso argued that the Court should postpone its determination of the duty to defend until it is ultimately decided that the plaintiff was in fact injured based solely on Belso’s activities.  As several other Connecticut courts have done, the Court followed the same principles that apply to assessing an insurer’s duty to defend under an insurance policy to facts involving a contractual agreement to defend between commercial parties.  As there was no question that the plaintiff’s injuries were claimed to have been caused, at least in part, by Belso’s acts, omissions, or performance under the contract, the allegations of the complaint therefore fell squarely within the scope of Belso’s contractual obligation to defend.  Belso argued that the complaint alleged multiple instances of negligence directly against the moving defendants that were independent of any negligence that could be found against Belso, but the Court found that this argument was inconsistent with the plain terms of its contract and with the applicable law.  Even construing the complaint to allege failings of the moving defendants that fall outside the scope of Belso’s work, the plaintiff claimed that her injuries were caused in whole or in part by the acts of Belso.  For these reasons, the motion for summary judgment was granted.

Superior Court – Medical Malpractice – Duty to Defend

In Integris Insurance Company v. Narendra B. Tohan, MD, the plaintiff insurer filed an action for declaratory judgment concerning its duty to defend an insured, a fertility doctor, against allegations that the doctor used his own sperm to impregnate two of his patients without their knowledge or consent.  In an underlying action against the doctor, the two plaintiffs alleged they were children of women who had been treated by the doctor in or around 1987 and 1990.  The insurer alleged that the underlying claims were not covered due to exclusions in the applicable policy, that the doctor’s alleged actions were not medical incidents pursuant to the policy, and that the doctor had failed to provide notice to the insurer of any potential claim or suit or of any act or omission or specific circumstances relating to professional services that might reasonably result in a claim or suit, which violated the general conditions of the policy.  The insurer filed a motion for summary judgment as to the duty to defend.  Regarding the issue of whether or not the alleged actions of the doctor satisfied the policy definition of a “medical incident” and constituted “professional services,” the Court conducted a detailed analysis of relevant decisional law and concluded that the underlying allegations could potentially fall within the coverage of the policy.  However, the Court also found that all of the damages alleged in the underlying action fell under the intentional conduct exclusion of the policy, thereby removing the insurer’s duty to defend the defendant.  The Court similarly found that all of the damages alleged in the underlying action fell under the sexual misconduct exclusion of the policy, providing an independent basis for the insurer to not defend the doctor.  The doctor argued that the insurer was estopped from declining the duty to defend because the insurer had already agreed to provide a defense.  The insurer countered that it had agreed to defend the doctor in the underlying action under a reservation of rights, which it specified in a letter to the doctor.  In response, the doctor contended that the reservation of rights language in the letter did not carve out any exceptions to the insurer’s agreement to provide a defense.  In reviewing the evidence, the Court found that the insurer was not estopped from raising any policy defenses because it agreed to provide a defense under a reservation of its rights and had not acted in a manner inconsistent with that reservation.  The Court granted the insurer’s motion for summary judgment.