DOMINGOS GABRIEL ET AL.
MOUNT VERNONFIRE INSURANCE COMPANY
September 17, 2018
to recover proceeds allegedly due under an umbrella
automobile insurance policy issued by the defendant, and for
other relief, brought to the Superior Court in the judicial
district of Fairfield and tried to the court, Krumeich, J.,
on a stipulation of facts; judgment for the plaintiffs as to
liability; thereafter, the court denied the defendant's
motion to open and vacate the judgment; subsequently, the
court granted in part the plaintiffs' amended motion to
assess damages and for postjudgment interest, and the
defendant appealed to this court. Affirmed.
M. Carnelli, with whom were Emily McDonough Souza and, on the
brief, Joseph J. Andriola, for the appellant (defendant).
Michael S. Burrell, with whom were Joseph P. Krevolin and, on
the brief, Joram Hirsch, for the appellees (plaintiffs).
Sheldon, Elgo and Eveleigh, Js.
defendant, Mount Vernon Fire Insurance Company, appeals from
the judgment of the trial court in favor of the plaintiffs,
Domingos Gabriel and his wife, Laurinda
Gabriel. On appeal, the defendant argues that the
trial court erred in (1) finding that the plaintiffs'
primary insurance policy qualified as an underlying policy
entitling the plaintiffs to excess coverage; (2) finding that
the business exception of the plaintiffs' umbrella
insurance policy did not apply; and (3) its determination of
damages. We affirm the judgment of the trial court.
following stipulated facts and procedural history are
relevant to the resolution of this appeal. On September 6,
2011, at approximately 1 p.m., Domingos Gabriel was the
passenger in a van operated by Domingos Pires, on Route 58 in
Easton, Connecticut, that went off the road and crashed into
a building. The accident caused severe injuries to Domingos
Gabriel, including injuries to his spine, which rendered him
permanently wheelchair bound and severely limited the use of
his arms. At the time of the accident, Pires was driving the
van for D.A.J., LLC, doing business as Pools Plus, Inc.
(Pools Plus), a pool maintenance company. Pires was employed
by Pools Plus and his wife, Ana Pires, was a principal in the
the accident occurred, Pires was insured under a $1 million
umbrella liability insurance policy (policy), issued by the
defendant. The van was covered by a primary business
insurance policy issued by National Grange Mutual Insurance
Company (NGM) to Pools Plus. The NGM policy was effective
from January 1, 2008 through September 7, 2011, and had a
policy limit of $300, 000.
Gabriel brought actions, in 2012, against Pires and, in 2013,
against Pools Plus to recover damages for his injuries and
losses. Laurinda Gabriel, was also a plaintiff in those
actions and sought to recover damages for loss of consortium.
The plaintiffs recovered judgments in the total amount of $1,
800, 000 from Pires and Pools Plus. NGM paid the plaintiffs
$300, 000 toward their judgments. The defendant, however,
refused to apply its $1, 000, 000 umbrella coverage to the
unpaid balance of the plaintiffs' judgments. The
defendant denied coverage because ‘‘the NGM
policy provided bodily injury liability coverage of less than
$500, 000, '' which, the defendant argues, was not
sufficient to trigger excess coverage.
the defendant denied Pires' claim, Pires assigned the
policy to the plaintiffs. The plaintiffs then commenced the
present action to enforce the policy and to recover the
excess coverage from the defendant. The trial court tried the
case based on stipulated facts. On November 16, 2016, the
court found in favor of the plaintiffs, stating:
‘‘[T]he policy declares unambiguously [that] the
failure to maintain underlying policies covering the loss
that meet minimum limits would not invalidate the policy but
merely adjusts the net loss to be paid by the
insurer.'' This appeal followed. Additional facts and
procedural history will be set forth as necessary.
analyzing the merits of the defendant's claims on appeal,
we set forth the applicable standard of review.
‘‘[C]onstruction of a contract of insurance
presents a question of law for the court which this court
reviews de novo.'' (Internal quotation marks
omitted.) Lexington Ins. Co. v.Lexington
Healthcare Group, Inc., 311 Conn. 29, 37, 84 A.3d 1167
(2014). Because ...