Opinion
In this declaratory judgment action, the defendant Edward Dzikiewicz, administrator of the estate of TyCody Dzikiewicz (decedent), appeals from the summary judgment rendered by the trial court in
The following facts and procedural history are relevant to the present appeal. In count one of the defendant’s complaint dated November 5,2009, the defendant sued Andrzej Bialobrodec and Grazyna Bialobrodec (parents) for the allegedly negligent supervision of their son, Adrian Bialobrodec, that allowed him to purchase and, thereafter, to give the decedent access to and use of a motorcycle, a motor vehicle, which the decedent operated and crashed, resulting in his death. In count two of his complaint, the defendant sued Adrian Bialo-brodec for his allegedly negligent supervision of the decedent and for the decedent’s use of his motorcycle, which resulted in the decedent’s death.
On February 6, 2010, the plaintiff commenced this declaratory judgment action against the parents and Adrian Bialobrodec. On November 18, 2010, the trial court granted the plaintiffs motion to cite in the defendant as an additional party defendant. In its amended
On August 30, 2010, the plaintiff filed a motion for summary judgment on the ground that it had no duty to defend the insured parties in the defendant’s action because the defendant’s causes of action arose out of the decedent’s use of a motor vehicle, or the negligent entrustment of a motor vehicle to the decedent, and the conduct and damages alleged against the parents were excluded from the policy coverage. On April 7, 2011, the court rendered summary judgment in favor of the plaintiff, holding that the policy excluded coverage for causes of action arising out of the use of a motor vehicle and that the policy excluded coverage for the defendant’s negligent supervision cause of action because it arose out of the decedent’s use of a motor vehicle owned by an insured. This appeal followed.
On appeal, the defendant claims that the court erred in ruling that the policy excluded coverage for the defendant’s negligent supervision cause of action. He argues that the court misconstrued his claim as arising out of the use of the motorcycle, when, in fact, his negligent supervision cause of action arises out of the parents’ failure to supervise their son. We are not persuaded.
“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provision of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . [T]his rule of construction . . . [also] extends to exclusion clauses.” (Citation omitted; internal quotation marks omitted.) Id., 688-89.
“The question of whether an insurer has a duty to defend its insured is purely a question of law .... In construing the duty to defend as expressed in an insurance policy, [t]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the
Section II of the policy, entitled “EXCLUSIONS,” provides in relevant part: “1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to ‘bodily injury’ or ‘property damage’ . . . [f] [a]rising out of: (1) The ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to an ‘insured’ . . . .”
“If an insurance policy’s words are clear and unambiguous, we must accord them their natural and ordinary meaning. . . . [I]t 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,
The defendant specifically alleges in his complaint against the parents that on September 1, 2008, at approximately 12:35 a.m., Adrian Bialobrodec took his motorcycle from his parents’ home and met with friends; he allowed the decedent to operate the motorcycle; the decedent lost control of the motorcycle and crashed into a tree; as a result of the accident, the decedent suffered fatal injuries; and the parents knew or should have known that Adrian Bialobrodec would allow others to use and operate the motorcycle.
In his appellate brief, the defendant argues that the decedent’s death was caused by the parents’ negligent supervision of Adrian Bialobrodec, not by the decedent’s use of the motorcycle. Specifically, the defendant argues that “[the parents] failed to supervise their son and took no action to prevent him from allowing others to use the motorcycle.” The defendant further argues that the policy issued to the parents “provided payments for any damages that their insured[s] were required to
The defendant attempts to separate his negligent supervision legal theory from the factual allegations of his complaint against the parents pertaining to the decedent’s accident and injuries arising from his use of the motorcycle. The facts alleged by the defendant in his complaint against the parents, however, underlie and undercut his claim that his negligent supervision cause of action stands alone and is separate from any claims arising from the motorcycle accident because they leave no doubt that the injuries for which he seeks to recover arose out of the decedent’s use of the motorcycle owned by an insured under the policy issued by the plaintiff. The policy explicitly and unambiguously provides that bodily injury arising out of the use of motor vehicles owned by an insured shall be excluded from policy coverage. Although the alleged facts may support a negligent supervision cause of action against the parents, that does not change the parameters of our review of this appeal. We review the court’s determination that the motor vehicle exclusion provisions of the policy applied to the allegations in the first count of the defendant’s complaint against the parents, not whether a negligent supervision cause of action might lie against them for their actions or inaction in the supervision of their son.
“It is well settled that, [f] actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) Luster v. Luster, 128 Conn. App. 259, 262 n.6, 17 A.3d 1068, cert. granted on other grounds, 302 Conn.
Because the negligent supervision cause of action is excluded from coverage under the motor vehicle exclusion provision, we need not address the defendant’s other claim that the court erred in ruling that the negligent entrustment of a motor vehicle exclusion provision of the policy also excludes coverage for the defendant’s negligent supervision cause of action.
The judgment is affirmed.
In this opinion the other judges concurred.
Also named as defendants in the operative complaint before the trial court were Andrzej Bialobrodec, Grazyna Bialobrodec and Adrian Bialobro-dec. These individuals, however, are not parties to this appeal. Accordingly, references to the defendant refer only to Edward DziMewicz, as administrator of the estate of TyCody Dzikiewicz.
At oral argument before this court, the defendant conceded that the motor vehicle exclusion provision excludes coverage for his negligent supervision cause of action against Adrian Bialobrodec. Thus, in this opinion we do not address this claim against Adrian Bialobrodec.
The defendant was not named as a party in the original complaint. The plaintiff amended its original complaint to make allegations against the defendant after the court granted the plaintiffs motion to cite him in as an additional party defendant.
The ordinary meaning of the term “use,” in reference to a motor vehicle, necessarily encompasses the act of driving a motor vehicle. See, e.g., New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 753-54; Hogle v. Hogle, 167 Conn. 572, 577-78, 356 A.2d 172 (1975).