594 A.2d 1046 | Conn. Super. Ct. | 1991
The plaintiff has sued the defendant insurance company for attorney's fees and expenses incurred to defend a claim that the plaintiff asserts was covered by the defendant's policy.
The facts are as follows. The plaintiff, a Connecticut resident, dealt with a Connecticut broker to obtain insurance coverage for her Florida rental property. An apartment package policy was issued to the plaintiff by the defendant's Florida agent. It contains a Florida amendatory windstorm or hailstorm endorsement and provides that if the terms of the policy conflict with the statutes of the state where issued (Florida) they "are hereby amended to conform to such statutes."
The policy consists of eighteen single spaced, typewritten pages containing many technical terms, definitions, exclusions and cross-references. On page thirteen it provides: "The Company will pay on behalf *561 of the insured all sums which the insured shall become legally obligated to pay [in] damages because of personalinjury . . . sustained by any person or organization and arising out of the named insured's business . . . and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury, even if any of the allegations by the suit are groundless, false or fraudulent . . . ." (Emphasis added.) Personal injury is defined to include an injury arising out of "wrongful entry or eviction or other invasion of the right of private occupancy."
The policy also provides for an exclusion with respect to "any injury arising out of an act committed by the insured with actual malice."
In March, 1985, the plaintiff initiated a summary process action against her tenant, Francis Wakefield, for possession of an apartment claiming, inter alia, that Wakefield allowed persons not in the original lease to reside on the premises. A person residing with Wakefield at that time was Patricia Leggett. Wakefield filed a counterclaim to the effect that the plaintiff had refused to add Leggett to the lease because Leggett was black and, as a consequence, the plaintiff was liable for damages under the United States Civil Rights Act,
The plaintiff notified the defendant of these pending actions and requested that the defendant defend her. The defendant wrote to the plaintiff that there were serious questions as to its obligation to indemnify *562 the plaintiff on some of the claims against her, however, it would defend the plaintiff so long as the Wakefield and Leggett actions were consolidated. In August, 1985, the Wakefield counterclaim was dismissed and, on August 26, 1985, the defendant notified the plaintiff that it would no longer defend the Leggett case. The plaintiff thereupon retained the lawyer who had brought the original summary process action. In December, 1985, final judgment was rendered in the plaintiff's favor in the Leggett matter. In connection with that case, after the lawyer provided by the defendant withdrew, the plaintiff incurred legal fees of $3169, and mail, telephone and travel expenses of $1682, for a total of $4851.
The threshold issue is which state's law governs. The plaintiff requested the policy through a Connecticut agent in Connecticut. The policy was issued in Florida, however, and contains Florida endorsements. The policy specifically provided that it was to conform to Florida law, and, most important, it covered Florida property. In Breen v. Aetna Casualty Surety Co.,
In light of that authority, this court concludes that the law of Florida governs the present case. With an exception later alluded to, however, counsel have not pointed to any significant difference between Florida and Connecticut law on the issues involved here, nor has the court found any. *563
The court starts its interpretation of the policy with the well established principle that ambiguous words or phrases in an insurance policy are construed strictly against the insurance company and in favor of coverage.McCauley Enterprises, Inc. v. New Hampshire Ins.Co.,
The substantive issue in the present case is whether or not the policy obligates the defendant to defend the plaintiff in the Leggett racial discrimination case.
The duty to defend is both separate and district from, and broader than, the duty to indemnify. Martin v.Brunzelle,
The operative phrase defining "personal injury" as including an injury arising out of "wrongful entry or eviction or other invasion of the right of private occupancy"; (emphasis added); is a common provision in apartment house policies. No Florida court, however, has construed it. Courts of other jurisdictions have differed as to whether or not this provision covers claims of racial discrimination against owners of rental property. In Larson v. Continental Casualty Co.,
On the other hand, State Farm Fire Casualty Co.
v. Westchester Investment Co.,
The best reasoned and most frequently cited case isGardner v. Romano, supra, which holds that the phrase, "other invasion of the right of private occupancy" requires the insurer to defend a racial discrimination claim by a prospective tenant against the insured. Id., 492. Finding the phrase not so much ambiguous as vague, the court states: "Construing this vague policy language against the drafter, the court concludes that *565 [insurer] has not met its burden of showing that the claims at issue here are clearly beyond the policy coverage. Moreover, the court is persuaded that interpreting the `personal injury' definition to include claims for race discrimination by potential tenants comports with the reasonable expectations of the insureds, keeping in mind that the insureds are entitled to the benefit of the doubt on the duty to defend issue." Id., 493.
In the present case, Leggett, an occupant of the plaintiff's premises, brought a civil rights action against the plaintiff alleging that the plaintiff had refused to add her to Wakefield's lease because Leggett was black. This court finds that such an action comes fairly within the coverage of the defendant's policy and required the defendant to defend the plaintiff in that action.
The defendant asserts, as a defense, that the policy excludes "any injury arising out of an act committed by the insured with actual malice." This defense is without merit on two grounds. First, the exclusion implies a finding that the insured acted with actual malice. In the present case, the Leggett matter was decided in the plaintiff's favor and the plaintiff took a judgment. Second, the Leggett complaint alleged that the plaintiff acted "intentionally and maliciously and in wanton and wilful disregard" of Leggett's rights and feelings. These are separate and distinct claims. Intentionally and wilfully means purposefully and knowingly. See State v. DeJesus,
Finally, the defendant asserts that Florida's public policy prohibits the plaintiff from being indemnified for a loss resulting from an intentional act of discrimination.Ranger Ins. Co. v. Bal Harbour Club, Inc.,
Judgment may enter in favor of the plaintiff against the defendant for $4851, together with statutory interest from August 26, 1985, the date when the defendant notified the plaintiff it would no longer defend her.