Nationwide Mut Ins. Co. v. Pasiak, 173 A.3d 888, 327 Conn. 225 2017 Caselaw Access Project

In view of the plaintiffs’ failure to identify a specific ruling of the trial court regarding discovery, other than the testimony of both the defendant and Socci, my review of the record leads me to conclude that the trial court properly exercised its discretion in this matter. There was no ruling that constituted an abuse of discretion. I, therefore, would reject the plaintiffs’ claims in this regard. The plaintiffs claimed that they were “entitled to … de novo fact finding” in the present case.

In sum, I disagree with the Appellate Court’s conclusion that the plaintiffs carried their burden in proving the business pursuits exclusion in the present case. Rather, I would agree with the majority that the Appellate Court used the wrong standard. I disagree, however, with the majority that the trial court used the wrong standard. In my view, the trial court used the correct standard as established by our case law. Therefore, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to affirm the judgment of the trial court. Because our conclusion entitles the plaintiffs only to reconsideration of whether the business pursuits exclusion bars indemnification, not judgment in their favor, we consider the plaintiffs’ alternative grounds for affirming in whole or in part the Appellate Court’s judgment directing the trial court to enter such a judgment.

Instead, I would conclude that the trial court properly limited the scope of discovery and properly limited the scope of the declaratory judgment trial, and that, on the basis of the record in the present case, the trial court properly determined that the business pursuits exclusion set forth in the umbrella policy does not apply. With regard to the duty to indemnify, the court concluded that the plaintiffs were entitled to summary judgment under the homeowners policy, but were not entitled to judgment under the broader umbrella policy. Specifically, the court pointed to the homeowners policy coverage limited to “bodily injury,” which was defined to exclude emotional distress unless caused by a physical injury, and the lack of evidence in the Socci action establishing such physical injury. Although the umbrella policy contained a similar definition for bodily injury, that policy also covered “personal injury,” a term defined by reference to specified injuries/acts, including “false imprisonment.” In light of that express coverage, the trial court concluded that many of the policy exclusions on which the plaintiffs relied were inapplicable. The court also concluded that the requisite facts to support other exclusions on which the plaintiffs relied were not supported by evidence or jury interrogatories in the Socci action. The court rejected the plaintiffs’ public policy argument regarding the punitive damages.

However, its analysis referred to critical testimony in the Socci action regarding certain statements the defendant purportedly made to Socci after Kotulsky left as to reasons why they should not call the police. The defendant purportedly cited his long, close friendship with Kotulsky and the ruinous effect on his business. The trial court excluded certain documentary evidence, but the plaintiffs have not appealed from that decision. Counsel for the plaintiffs suggested he would ask Socci if the defendant was acting in furtherance of business pursuits when he prohibited her from leaving his house and if the defendant was acting “in a way that was abusive” to her.

Co., supra, 261 Conn. at 45, 47–48, 801 A.2d 752 (causal nexus to establish liability resulting from use of covered vehicle established when bus driver negligently allowed special education student to depart from bus unsupervised and student thereafter was sexually assaulted in school bathroom when driver’s negligence was direct factor in causing injury). Accordingly, this case law makes clear that the mere fact that the false imprisonment occurred after Socci arrived at her workplace would not, in and of itself, establish the requisite nexus. Our prior construction of those provisions has particular significance to the present case.

Her counsel sought an order of protection due to the fragility of her mental state with respect to these events, but she agreed to a stipulation of facts. Because the plaintiffs could not articulate why it needed live testimony, the court was unwilling to allow the testimony and issued a protective order. The plaintiffs next contend that the Appellate Court’s judgment should be affirmed in part as to their obligation to indemnify the defendant for punitive damages. They contend that, in the absence of an express grant siete gotas meaning of coverage for punitive damages, it would violate public policy to construe a policy to indemnify a wrongdoer for punitive damages. 7 On the Monday before trial, an off the record conference was held. Despite the fact that the court indicated in its memorandum of decision that matters pertaining to workers’ compensation were “necessarily determined” in the underlying trial, the deposition and production pertained to Socci’s employment and apparently were relevant to the issue of the workers’ compensation exclusion.

It is, of course, true that had Socci not been an employee of the defendant, she would not have been present when Kotulsky attempted to rob the defendant’s home. Such a broad standard of causation was, however, rejected in Misiti, LLC. In that case, but for the tavern patron’s use of the tavern that evening, she would not have been injured when she detoured off the path to the parking lot, but the injury did not flow from, or have its origins in, her patronage of the tavern. See Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn. at 159–60, 61 A.3d 485; see also Edelman v. Pacific Employers Ins. Likewise, in the present case, Socci would not have been injured but for being in the employ of the defendant, but the injury did not flow from, or have its origin in, her employment. Rather, her injury flowed from the defendant’s decision to protect Kotulsky by preventing her, as a victim of an attempted armed robbery, from calling the police. The plaintiffs claim, and the majority appears to agree, that it was clearly erroneous to conclude that the defendant’s actions were not, at least in part, motivated by business interests.

In view of the allegations made in the underlying tort action, and the general verdict rendered by the jury in that case, it is conceivable that the jury may have found that the act of false imprisonment either occurred in the defendant’s house, in his car, in a subsequent meeting with a mutual friend, or in a combination of all three locations. It appears to be broadly accepted that a personal liability insurer has no right to intervene in the underlying action because its interest is contingent before judgment has entered against its insured. See, e.g., Restor–A–Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871, 874–75 (2d Cir. 1984); Universal Underwriters Ins. Co. v. East Central Alabama Ford–Mercury, Inc., supra, 574 So.2d at 723, 574 So.2d 716; see also Lodigensky v. American States Preferred Ins. Co., 898 S.W.2d 661, 664–66 (Mo. App. 1995) . In the declaratory judgment action, the plaintiffs produced evidence that the defendant also had been arrested in connection with this incident, eventually pleaded nolo contendere to two misdemeanor offenses, and paid a fine of $3015.

12 This is especially so in actions alleging both negligent and intentional conduct. The issue of whether the plaintiffs have a duty to indemnify is a contractual one. See, e.g., New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. at 748–49, 36 A.3d 224. According to the umbrella policy, the plaintiffs agreed to “pay for damages an insured is legally obligated to pay due to an occurrence” subject to certain exclusions.

The defendant claimed that the trial was to be based “solely and completely on the facts presented” in the underlying civil trial. The plaintiffs indicated that the applicability of exclusions were the only issues that appeared unresolved after the denial of their motion for summary judgment and the decision regarding the scope of trial. Stated broadly then, an insurer may litigate coverage issues previously litigated on which it had a conflict of interest with its insured or coverage issues on which material facts were not litigated and necessary to the underlying judgment. The next question is what evidence may be considered to decide such issues. Although the policy defines the term “business” as “a trade, profession, occupation, or employment including self-employment,” it does not define “business pursuits” or “arising out of.” The meaning of both terms, however, has been articulated by this court as well as other jurisdictions considering this exclusion.