September 19, 2016
from Superior Court, judicial district of Fairfield, Kamp, J.
Jeffrey J. Vita, with whom was Bethany L. Barrese, for the
G. Roche, with whom, on the brief, was Joseph H. Carlisle,
for the appellee (defendant).
Sheldon and Lavery, Js.
plaintiff, the town of Monroe, appeals from the judgment of
the trial court rendering summary judgment in favor of the
defendant insurer, Discover Property and Casualty Insurance
Company. The plaintiff claims that the court erred in holding
that the allegations brought by a third party against the
plaintiff in a prior action (underlying action) fell within
an exclusion in the applicable policy, and, therefore, that
the defendant had no duty to provide a defense to the
plaintiff. We agree with the plaintiff and, accordingly,
reverse the judgment of the trial court.
record reveals the following facts and procedural history. In
2005, the plaintiff purchased a ‘‘Public Entity
Errors and Omissions Liability Policy'' (policy) from
the defendant. In 2006, Bellsite Development, LLC
(Bell-site), instituted an action against the plaintiff. It
alleged that the plaintiff had agreed to assist in the
‘‘development and implementation of a wireless
telecommunications tower, '' and had harmed Bellsite
by abandoning that agreement. The operative complaint in the
underlying action alleged (1) breach of contract (count one);
(2) promissory estoppel (count two); and (3) negligent
misrepresentation (count three). The plaintiff requested
defense and indemnity from the defendant, its insurer. The
defendant denied coverage. The plaintiff retained counsel to
defend its interests in the underlying case, and the case was
tried. In the trial court, the case was decided in favor of
Bellsite on counts one and three of the operative complaint.
On appeal, this court reversed the judgment and directed
judgment in favor of the plaintiff on all three counts.
Bellsite Development, LLC v. Monroe, 155
Conn.App. 131, 154, 122 A.3d 640, cert. denied, 318 Conn.
901, 12 A.3d 1279 (2015).
plaintiff then brought the present action seeking both a
declaratory judgment that the defendant had a duty to defend
and damages arising from the defendant's alleged breach
of that duty. The defendant filed a motion for summary
judgment, alleging that the plaintiff could not prevail as a
matter of law because the policy excluded coverage for the
claims as alleged in the underlying complaint. On August 11,
2015, the court granted the defendant's motion. The court
determined that (1) the allegations regarding an agreement,
if true, amounted to a finding of a procurement contract, for
which coverage was excluded; and (2) Bellsite's negligent
misrepresentation claim, as alleged in the third count, arose
out of that contract. Therefore, the allegations, as alleged
in the underlying complaint, all fell within the clause of
the policy excluding coverage for contractual damages. This
preliminary matter, we set forth the appropriate standard of
review. ‘‘Our review of the trial court's
decision to grant [a] motion for summary judgment is
plenary.'' (Internal quotation marks omitted.)
R.T. Vanderbilt Co. v. Continental
Casualty Co., 273 Conn. 448, 456, 870 A.2d 1048 (2005).
‘‘In seeking summary judgment, it is the movant
who has the burden of showing the nonexistence of any issue
of fact. The courts are in entire agreement that the moving
party for summary judgment has the burden of showing the
absence of any genuine issue as to all the material facts,
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law.''
(Internal quotation marks omitted.) Id., 455-56.
of a policy of insurance presents a question of law, over
which our review is de novo. . . . It is beyond dispute 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 complaint . . .
. The obligation of the insurer to defend does not depend on
whether the injured party will successfully maintain a cause
of action against the insured but on whether he has, in his
complaint, stated facts [that] bring the injury within the
coverage. . . . If an allegation of the complaint falls
even possibly within the coverage, then the
[insurer] must defend the insured.'' (Citations
omitted; emphasis added; internal quotation marks omitted.)
Wentland v. American Equity Ins. Co., 267
Conn. 592, 600, 840 A.2d 1158 (2004); Moore v.
Continental Casualty Co., 252 Conn. 405, 409, 746
A.2d 1252 (2000); see also Schwartz v.
Stevenson, 37 Conn.App. 581, 584-85, 657 A.2d 244
allegations of a complaint necessarily fall within the terms
of a policy exclusion, however, an insurer does not have a
duty to defend. New London County Mutual Ins. Co.
v. Bialobrodec, 137 Conn.App. 474, 479, 48
A.3d 742 (2012). An insurer is ‘‘entitled to
prevail under a policy exclusion [only] if the allegations of
the complaint clearly and unambiguously establish
the applicability of the exclusion to each and every claim
for which there might otherwise be coverage under the
policy.'' (Emphasis added; internal quotation marks
omitted.) Id.; see also Wentland v.
American Equity Ins. Co., supra, 267 Conn. 592
(applicability of exclusion for liquor liability not clearly
and unambiguously established where complaint alleged driver
caused accident while intoxicated); Schwartz v.
Stevenson, supra, 37 Conn.App. 586 (applicability of
exclusion for vehicles owned by third parties not clearly and
unambiguously established where complaint did notspecify
whoowned vehicle at issue).
I (2) (d) (1) of the policy excluded coverage for
‘‘[a]ny claim . . . [b]ased upon, arising out of,
directly or indirectly resulting from, or in consequence of
construction, architectural or engineering contracts or any
other procurement contract; or (2) [f]or which the insured
has assumed the liability in a contract or
agreement.'' The policy also stated in § I (2)
(d) (2) that ‘‘[t]his exclusion does not apply to
liability for damages that the insured would have in the
absence of the contract or agreement.''
plaintiff argues that the court erred in determining that the
allegations of negligent misrepresentation in the underlying
complaint fell within the policy's contract exclusion.
Specifically, the plaintiff contends that the allegations of
the complaint could not support the finding of an enforceable
contract, or of a procurement contract of any kind, and,
therefore, it could not be proved that the negligent
misrepresentation cause of action arose out of that contract.
The plaintiff also argues that even if the allegations
supported the existence of a contract, Bellsite's
negligent misrepresentation claim was a tort claim
‘‘separate and independent from''
Bellsite's contractual claims, and coverage was ...