MICHAEL KLING v. HARTFORD CASUALTY INSURANCE COMPANY
AC 44292
Appellate Court of Connecticut
Argued November 17, 2021—officially released April 12, 2022
Bright, C. J., and Cradle and DiPentima, Js.
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The plaintiff sought to recover damages from the defendant insurance company for, inter alia, breach of contract, claiming that the defendant had a duty to defend C, doing business as E Co., under a business liability insurance policy it had issued to C, and that its failure to do so left the defendant liable to the plaintiff for damages the plaintiff suffered due to C‘s and E Co.‘s negligence. The plaintiff sustained injuries when a trailer that was attached to a pickup truck driven by C, transporting large kettle corn equipment owned by E Co., dislodged from the pickup truck and struck the plaintiff. After the incident occurred, the plaintiff brought a personal injury action аgainst C and E Co., seeking to recover damages for his injuries. At the time of the incident, C was insured under the business liability insurance policy issued by the defendant. The defendant, however, declined to defend C, citing a provision that excluded coverage for bodily injuries that arose out of the use of an “auto.” C did not appear or otherwise defend the personal injury action, and the plaintiff obtained a default judgment against C and E Co. Thereafter, the plaintiff brought the present action against the defendant pursuant to the applicable statute (
Argued November 17, 2021—officially released April 12, 2022
Procedural History
Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of New Haven, and tried to the court, S. Richards, J., as to count one of the
Leann Riether, for the appellant (plaintiff).
Daniel J. Raccuia, for the appellee (defendant).
BRIGHT, C. J. The plaintiff, Michael Kling, appeals from the judgment of the trial court in favor of the defendant, Hartford Casualty Insurance Company.1 On appeal, the plaintiff claims that the court erred in concluding that the defendant did not owe a duty to defend its insured, Newton Carroll doing business as Elm City Kettle Corn Company (Elm City), in connection with injuries that the plaintiff suffered as a result of Carroll‘s and Elm City‘s negligence. We affirm the judgment of the trial court.
The following facts, which are undisputed, and procedural history are relevant to our resolution of this appeal. On the morning of July 13, 2012, the plaintiff was walking north on the sidewalk along Orchard Street in New Haven. At the same time, Carroll was driving a pickup truck that was towing a trailer north on Orchard Street. Attached to the inside of the trailer was equipment that Carroll used to make kettle corn. As Carroll was driving past where the plaintiff was walking, the trailer detached from the truck, catapulted over a curb, and struck the plaintiff, pinning him to the ground. The plaintiff suffered several injuries including a fractured right femur, a fractured right elbow, and meniscal tears in his right knee.
In May, 2014, the plaintiff brought a personal injury action against Carroll and Elm City, alleging that Carroll‘s negligence in operating his truck and trailer—specifically, Carroll‘s failure to ensure that the trailer was securely attached to the truck—had caused the plaintiff “severe personal and painful injuries.” See Kling v. Elm City Kettle Corn Co., LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6047194-S. At the time of the accident, Carroll and Elm City were insured under a business liability policy that had been issued by the defendant, which provided coverage for “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury . . . .‘” The policy also stated that the defendant had “the right and duty to defend the insured against any ‘suit’ seeking those damages.” The defendant declined to defend Carroll, citing a provision in the policy that excluded coverage for bodily injuries that arose out of the use of an automobile. Carroll did not appear or otherwise defend the personal injury action, and the plaintiff obtained a default judgment against him and Elm City for $495,843.57.
The plaintiff then filed this aсtion against the defendant pursuant to
The defendant then moved for summary judgment on all three counts based on the alleged auto exclusion. The court denied the defendant‘s motion for summary judgment after finding that the language of the insurance policy was ambiguous. The defendant then filed a motion to dismiss counts two and three on the basis that the plaintiff lacked standing to assert those claims because
Thereafter, the court issued its memorandum of decision, wherein it rendered judgment for the defendant on count one, after finding that the defendant had no duty to defend Carroll and Elm City because the policy‘s auto exclusion applied, thus precluding coverage for the plaintiff‘s injuries. The court also dismissed counts two and three of the plaintiff‘s complaint after concluding that the plaintiff did nоt have standing to bring either count in light of the court‘s conclusion that the plaintiff did not have privity of contract with the defendant and that there was no statutory or common-law basis to support the plaintiff‘s allegations under either count. The plaintiff then filed a motion to reargue/reconsider, which the court denied. This appeal followed, challenging both the judgment rendered after the trial on count one and the dismissal of counts two and three. Additional facts will be set forth as necessary.
The parties agree, as do we, that if the court‘s contractual analysis regarding the duty to defend is correct then the plaintiff cannot succeed on any of his three counts. Consequently, we address that issue first. We begin by setting forth the applicable standard of review and principles of law that guide our analysis. Our standard of review for interpreting insurance policies is well settled. “The construction of an insurance policy presents a question of law that we review de novo.” Warzecha v. USAA Casualty Ins. Co., 206 Conn. App. 188, 191, 259 A.3d 1251 (2021). When construing an insurance policy, “we look at the [policy] as a whole, consider all relevant portions together and, if possible,
An insurer‘s duty to defend “is determined by reference to the allegations contained in the [underlying] complaint.” (Internal quotation marks omitted.) DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 687, 846 A.2d 849 (2004). The duty to defend “does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether [the complaint] stated facts which bring the injury within the coverage.” (Internal quotаtion marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107 (2003). “If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.” (Internal quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000). That being said, an insurer “has a duty to defend only if the underlying complaint reasonably alleges an injury that is covered by the policy.” (Emphasis in original.) Misiti, LLC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 156, 61 A.3d 485 (2013). “[W]e will not predicate the duty to defend on a reading of the complaint that is . . . conceivable but tortured and unreasonable.” (Internal quotation marks omitted.) Id. There is also no duty to defend “if the complaint alleges a liability which the policy does not cover . . . .” (Internal quotation marks omittеd.) Id.
The plaintiff claims that the defendant has a duty to defend because (1) the policy language is ambiguous and, thus, must be construed in favor of providing coverage and (2) the allegations in the plaintiff‘s complaint
We begin with the relevant language of the plaintiff‘s complaint in the personal injury action on which he relies for his claim of coverage:
“2. On [July 13, 2012, at approximately 9:25 a.m., Carroll] was the operator of a 2012 Dodge truck . . . which vehicle was towing а trailer with large kettle corn equipment affixed . . . and was traveling north on Orchard Street . . . .
“4. [W]hile said vehicle was being operated by [Carroll], said trailer with large kettle corn equipment owned by [Elm City] dislodged from the truck, catapulted over the curb striking the plaintiff and pinning the plaintiff thereby causing the plaintiff severe personal and painful injuries as hereinafter more particularly set forth. . . .
“6. Said collision of debris and the resulting injuries, damages, and losses to the plaintiff were caused by the carelessness and negligence of [Carroll doing business as Elm City] in one or more of the following ways . . .
“e. in that he secured the truck camp trailer improperly to prevent еquipment to fall on the roadway, posing a risk to the plaintiff . . .
“f. in that the fastening equipment on the trailer hitch was in a broken condition and the defendant failed to inspect the trailer to observe the broken and loose condition of the trailer hitch; [and]
“g. in that [Carroll] failed to adequately secure a safety chain to secure the trailer in the event that the hitch/fastening equipment became dislodged.”
The plaintiff argues that these allegations fall within the coverage of the business liability insurance policy issued by the defendant which provides liability coverage, including a legal defense, for any lawsuits seeking damages “because of ‘bodily injury’ . . . to whiсh this insurance applies.” The defendant agrees that there would be coverage for the plaintiff‘s injuries if it were not for the policy‘s exclusions, principally the auto exclusion. Under that exclusion, the policy does not provide coverage or a duty to defend for “‘bodily injury’ . . . arising out of the ownership, maintenance, use or entrustment to others of any . . . auto . . . owned or operated by . . . any insured.” (Emphasis added.) “Auto” is defined under the policy as “a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.”
The defendant argues that the language of the exclusion is plain and unambiguous as applied to the plaintiff‘s claim. In particular, it argues that there is no ques-
Connecticut courts have had previous occasions to interpret the phrase “arising out of,” as the phrase is used in auto exclusions in insurance policies and consistently have held that the phrase broadly applies to preclude coverage for claims whenever a plaintiff‘s injuries are related—even slightly—to the use of an automobile. See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 753–54, 36 A.3d 224 (2012); Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975).
For example, in Hogle, our Supreme Court concluded that a homeowners insurance policy did not provide coverage for injuries that a passenger in a car sustained when the driver‘s dog jumped from the rear seat into the front seat, causing the driver to crash the car and injure the passenger. Hogle v. Hogle, supra, 167 Conn. 578-79. The policy in Hogle included an auto exclusion, which stated that “coverage does not apply to the operation . . . of . . . automobiles . . . while away from” the insured‘s home. (Internal quotation marks omitted.) Id., 576. In interpreting that exclusion, the court broadly held that “it is generally understood that for liability for an accident or an injury to be said to arise out of the use of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury was connected with, had its origins in, grew out of, flowed from, or was incident to the use of the automobile, in order to meet the requirement that there be a causal relationship between the aсcident or injury and the use of the automobile.” (Internal quotation marks omitted.) Id., 577. Accordingly, because the driver‘s use of a car was in some way connected “with the accident or the creation of a condition that caused the accident,” there was no coverage for the passenger‘s injuries under the auto exclusion, and the insurer thus did not have a duty to defend. Id., 578.
Similarly, in Nantes, our Supreme Court determined that a homeowners insurance policy did not provide coverage for injuries that houseguests suffered from carbon monoxide poisoning that was caused by the homeowner leaving her car running overnight in an attached garage. New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 759. That policy аlso contained an auto exclusion, which stated that coverage “do[es] not apply to bodily injury or property damage
As alleged in the underlying complaint, the plaintiff‘s injuries resulted from Carroll‘s operation of a truck and trailer on the public roads of New Haven. Specifically, the plaintiff was injured when the trailer transporting the attached kettle corn equipment detached from the truck and struck him. The auto exclusion in the insurance policy issued by the defendant unambiguously precludes coverage for injuries that arise out of the use of an auto. The policy also unambiguously defines “auto” to include “land motor vehicles” (such as trucks), trailers, and any equipment that is attached to said trailers. Under the plain language of the policy, it is indisputable that the plaintiff‘s injuries arose out of the use of an auto: but for Carroll‘s use of a truck, an auto, to transport a trailer containing kettle corn equipment, a second auto, the plaintiff never would have beеn struck by the trailer and, consequently, would not have been injured. Therefore, those injuries are connected with, have their origins in, grew out of, flowed from, or were incident to Carroll‘s use of two autos. See Hogle v. Hogle, supra, 167 Conn. 577. As such, because the plaintiff‘s injuries were related to, and thus arose out of, Carroll‘s use of an auto, there is no coverage for those injuries under the insurance policy.
Given our conclusion that the auto exclusion clearly precludes coverage for the plaintiff‘s injuries, we necessarily reject the plaintiff‘s claim that the language of the policy is ambiguous. The plaintiff claims that both factual and legal uncertainty exist with regard tо whether the defendant has a duty to defend, and that such uncertainty is enough to make the policy ambiguous. In Nash Street, LLC v. Main Street America Assurance Co., 337 Conn. 1, 10–11, 251 A.3d 600 (2020), our Supreme Court explained how factual and/or legal uncertainty can create ambiguity in an insurance policy and thus give rise to a duty to defend: “Factual uncertainty arises when it is unclear from the face of the complaint whether an alleged injury occurred in a manner that is covered by the policy. . . . Legal uncertainty arises when it is unclear how a court might interpret the policy language at issue, and, as a result, it is unclear whether the alleged injury falls within coverage.” (Citations omitted.)
The plaintiff argues that there is factual uncertainty because the complaint in the personal injury action included allegations that the trailer and kettle corn
We initially note that the word “maintenance” is never used in the plaintiff‘s complaint and that the plaintiff conceded as much at oral argument before this court. In addition, the auto exclusion applies not only to bodily injuries arising out of the operation of an auto, but also to those arising out of the ownership, maintenance, and use of an auto. The exclusion defines “use” as including “loading or unloading.” Thus, even construing the allegations of the plaintiff‘s personal injury complaint as alleging negligence in how Carroll and Elm City maintained the truck or trailer or how they connected the two, the claims are excluded from coverage by the plain language of the policy.
Finally, as noted previously in this opinion, our Supreme Court consistently has interpreted the “arising out of” language in auto exclusions very broadly. In both Hogle and Nantes, our Supreme Court concluded that the auto exclusions in both insurance policies precluded coverage for the plaintiff‘s injuries even though the underlying complaints in both cases alleged acts of negligence that occurred independently of the insured‘s use of an automobile. See Hogle v. Hogle, supra, 167 Conn. 578 (“Aetna‘s obligation to pay the judgment rendered . . . does not depend on whеther it was [the driver‘s] negligent operation of the car, or the activities of his dog inside the car, which constituted the ‘proximate cause’ of the accident . . . Such obligation, rather, depends in this case on another fact, namely whether [the driver‘s] ‘use’ of his car was connected with the accident or the creation of a condition that caused the accident.“); see also New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 758 (“[I]t is irrelevant that an arguably covered event—[the host‘s] closing of the garage door—was a contributing cause of [the guests‘] injuries. . . . [T]he fact that [the host‘s] use of her motor vehicle was connected to or created a condition that caused [the guеsts‘] injuries is enough to bring [the injuries] within the motor vehicle exclusion.“).
In the present case, as in those two cases, although negligence unrelated to the use of an auto may have contributed to the plaintiff‘s injuries, those injuries nonetheless arose out of the use of an auto because,
As to legal uncertainty, the plaintiff argues that the definition of auto in the policy, to which the auto exclusion applies, states that “‘auto’ does not include ‘mobile equipment.‘” He argues that, because the kettle corn equipment that was аffixed to the trailer is mobile equipment, there is legal uncertainty as to whether the auto exclusion applies to injuries caused by any of the kettle corn equipment that may have struck the plaintiff.4
There are a number of problems with the plaintiff‘s argument. First, the policy has a definition of “mobile equipment,” which is limited to a specific list of “land vehicles.” The kettle corn equipment at issue does not fall under any of the vehicles listed in the mobile equipment definition.
Second, it is clear from the policy language that the kettle corn equipment attached to the trailer also meets the definition of auto under the policy‘s exclusions. The insuranсe policy defines “auto” as including trailers that are “designed for travel on public roads, including any attached machinery or equipment.” (Emphasis added.) The trailer and attached equipment here certainly fall within that definition of “auto,” meaning that the auto exclusion applies to bar coverage for any injuries that arose out of the use of that trailer and equipment.
Finally, the plaintiff‘s complaint did not allege that his injuries arose out of the operation of the kettle corn equipment. The complaint alleged that the plaintiff‘s injuries arose during the transportation of the kettle corn equipment. The policy explicitly excludes from coverage bodily injury arising out of “[t]he transportation of ‘mobile equipment’ by an ‘auto’ owned or operated by or rented or loaned to any insured . . . .” Thus, even if the kettle corn equipment was considered mobile equipment under the policy, the exclusion of coverage for the transportation of mobile equipment clearly would apply. Consequently, there is no legal uncertainty that the defendant had no duty to defend Carroll and Elm City.
We also reject the plaintiff‘s argument that the law of the case doctrine compels us to conclude that the policy language was ambiguous. According to the plaintiff, because the trial court found the policy language ambiguous when it denied the defendant‘s motion for summary judgment, it could not conclude otherwise at trial, and we too should conclude that such ambiguity exists. This assertion, however, ignores the fact that appellate courts review a lower court‘s interpretation of an insurance policy de novo. Warzecha v. USAA Casualty Ins. Co., supra, 206 Conn. App. 191. As such, we are not bound by the trial court‘s findings or by the law of the case that was made during the proceedings at trial. Danehy v. Danehy, 118 Conn. App. 29, 33 n.5, 982 A.2d 273 (2009) (law of case “сannot bind an appellate court, whose function is to determine whether the trial court correctly applied the law“). Thus, our conclusion that the policy‘s auto exclusion unambiguously precludes coverage for the plaintiff‘s injuries is unaffected by the trial court‘s prior conclusion that the policy was ambiguous.5 See id.
In sum, given our Supreme Court‘s broad interpretation of the phrase “arising out of” in both Hogle and Nantes, we conclude that the auto exclusion in the business liability policy at issue here plainly and unambiguously precludes coverage for the plaintiff‘s injuries.6 Accordingly, the defendant did not have a duty to defend Carroll and Elm City in the personal injury action.7
The judgment is affirmed.
In this opinion the other judges concurred.