Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Monroe v. Discover Property and Casualty Insurance Co.

Court of Appeals of Connecticut

December 6, 2016

TOWN OF MONROE
v.
DISCOVER PROPERTY AND CASUALTY INSURANCE COMPANY

          Argued September 19, 2016

         Appeal from Superior Court, judicial district of Fairfield, Kamp, J.

          Jeffrey J. Vita, with whom was Bethany L. Barrese, for the appellant (plaintiff).

          Paul G. Roche, with whom, on the brief, was Joseph H. Carlisle, for the appellee (defendant).

          Beach, Sheldon and Lavery, Js.

          OPINION

          BEACH, J.

         The 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.

         The 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).

         The 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 appeal followed.

         As a 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.

         ‘‘Construction 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 (1995).

         If the 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).

         Section 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.''

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.