Argued October 7, 2015.
Action for a declaratory judgment to determine whether the plaintiff was obligated to defend and indemnify the defendant Robert Atherton under an automobile insurance policy issued by the plaintiff to the named defendant's deceased, brought to the Superior Court in the judicial district of Litchfield, where the court, Danaher, J., granted the plaintiff's motion for summary judgment and rendered judgment thereon, from which the named defendant appealed.
Reversed; further proceedings.
The plaintiff insurer sought a declaratory judgment to determine the scope of coverage provided under an insurance policy it had issued to the named defendant's decedent, and, more specifically, its duty to defend. The named defendant, M, had filed a wrongful death action against A, who was permissively operating the decedent's vehicle, in which the decedent was a passenger, when it struck a parked tractor trailer. The plaintiff sought a declaratory ruling that its insurance policy did not provide coverage for M's claims against A, and that it had no duty to defend A in the wrongful death action because although A was a covered driver under the policy, there was an exclusion in the policy that precluded coverage for claims of bodily injury to the named insured, who was the decedent. The plaintiff thus filed a motion for summary judgment on the basis of that exclusion. M objected to that motion, claiming that the exclusion was void because it did not comply with the statutory ([Rev. to 2009] § 38a-335 [d]) requirement that exclusions be set forth separately in an endorsement to the policy that specifically names the individual excluded from coverage. Because the exclusion in the policy here was located within the body of the policy, M claimed that the exclusion was void and unenforceable, and that the plaintiff had a duty to defend A and to indemnify him if he were ultimately found liable for the decedent's death. The trial court concluded that the exclusion did not violate § 38a-335 (d) and, further, that the exclusion unambiguously barred M's claims against A. Accordingly, the trial court rendered summary judgment in favor of the plaintiff and M appealed, claiming that the exclusion was invalid because it failed to comply with the plain and unambiguous strictures of § 38a-335 (d) that the exclusion be both sufficiently specific and set forth in a separate endorsement to the policy. Held that the trial court improperly held that the exclusion was valid, the exclusion not having been set forth in a separate endorsement as required by § 38a-335 (d), but, rather, having been listed among other exclusions in the body of the policy itself; this court previously has determined that § 38a-335 (d) did not create an absolute prohibition on such policy exclusions, but merely required notice and acceptance by the insured of an endorsement that specifically excludes the named insured, and an endorsement has been defined as a writing added or attached to an insurance policy that, like here, expands or restricts its benefits or excludes certain conditions from coverage, and, contrary to the plaintiff's contention, the exclusion's clarity did not excuse it from the statutory requirement that it be set forth in an endorsement.
William M. O'Donnell III, with whom, on the brief, were Lauren J. Taylor and S. Sherry Xia, for the appellant (named defendant).
Cristin E. Sheehan, with whom was Cara D. Joyce, for the appellee (plaintiff).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. ROGERS, C. J. In this opinion the other justices concurred.
[320 Conn. 206] ROGERS, C. J.
This appeal presents the question of whether General Statutes (Rev. to 2009) § 38a-335 (d) bars automobile liability insurers from excluding coverage for personal injuries caused to a named insured unless the exclusion is set forth in a separate endorsement [320 Conn. 207] to the policy. The named defendant, Maureen K. Mitchell, in her capacity as executrix of the estate of John Mooney, Jr. (decedent), appeals from the trial court's summary judgment rendered in favor of the plaintiff, Dairyland Insurance Company, in this declaratory judgment action brought to determine the scope of coverage provided by an automobile insurance policy and the associated duty to defend. She argues that the trial court's ruling was improper because the exclusion at issue was void and unenforceable due to its failure to comply with the clear and unambiguous requirements of § 38a-335 (d). We agree and reverse the judgment of the trial court.
The following undisputed facts and procedural history are relevant to the appeal. The decedent died in an automobile accident on April 24, 2010, while riding in his own motor vehicle as a passenger. The vehicle was being driven, with the decedent's permission, by the decedent's friend, Robert Atherton, when it struck a parked tractor trailer. At the time, the vehicle was insured by the plaintiff under a personal automobile policy (policy). Atherton was a covered permissive driver under the policy.
On or about April 12, 2012, the defendant filed a wrongful death action against Atherton, seeking various damages on behalf of the decedent's estate. On June 25, 2012, the plaintiff filed a one count ...