241 Conn. 476 | Conn. | 1997
Opinion
The named defendant, Leonnela Gonzalez, a minor child acting by and through her mother and
The relevant facts and procedural history are undisputed. In March, 1995, Gonzalez brought an action against Friedman and Angel,
On December 20, 1995, Peerless moved for summary judgment, claiming that it was entitled to judgment as a matter of law on the basis of the policy’s unambiguous lead exclusion. On February 5, 1996, Gonzalez submitted a memorandum in opposition to Peerless’ summary judgment motion in which she maintained that the policy’s lead exclusion was not applicable to lead paint. On May 20, 1996, Gonzalez filed a supplemental memorandum opposing Peerless’ motion for summary judgment, claiming that to the extent that the policy’s lead exclusion applied to lead paint, the exclusion was unen
On appeal, Gonzalez maintains that the trial court improperly granted Peerless’ motion for summary judgment because the policy’s lead exclusion does not apply to lead paint.
I
Gonzalez first contends that the trial court improperly determined that the policy’s exclusion for injuries resulting from “exposure to, or contact with . . . lead contained in goods, products or materials” does not apply to injuries arising from lead paint poisoning. Specifically, she claims that the policy’s lead exclusion
“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment], . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § 381.” (Citation omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203, 663 A.2d 1001 (1995).
Settled principles also govern the interpretation of insurance policies. “It is the function of the court to construe the provisions of the contract of insurance. ... An insurance policy is to be interpreted by the
If, however, “the insurance coverage is defined in terms that are ambiguous, such ambiguity is . . . resolved against the insurance company. Where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., supra, 214 Conn. 584. “ ‘[T]his rule of construction favorable to the insured extends to exclusion clauses.’ ” Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 770, 653 A.2d 122 (1995). “ ‘A necessary predicate to this rule of construction, however, is a determination that the terms of the [exclusion clause] are indeed ambiguous.’ ” Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). Thus, a “court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity”; (internal quotation marks omit
Applying these principles to the policy terms at issue in this case, we conclude that the trial court properly determined that the policy’s lead exclusion unambiguously applies to lead paint. Gonzalez’ first argument, namely, that the lead exclusion should not be construed to apply to lead paint because that exclusionary provision contains no express reference to lead paint, warrants little discussion. Because there is no requirement that a policy exclusion be cast in specific, rather than general, terms, the fact that the policy’s lead exclusion contains no express reference to lead paint does not support Gonzalez’ contention that lead paint falls outside the purview of the exclusion. The relevant inquiry is not whether the policy issued by Peerless expressly excludes lead paint from its coverage but, rather, whether the language of the exclusionary provision nevertheless clearly and unambiguously applies to lead paint.
Gonzalez’ alternative argument is that the lead to which she allegedly was exposed does not fall within the policy’s exclusion for “lead contained in goods,
Gonzalez also contends that the use of the terms “products” and “materials” in other, unrelated provisions of the policy supports her claim that lead paint is neither a “product” nor a “material” for purposes of the policy’s lead exclusion. This argument is similarly devoid of merit. Contrary to Gonzalez’ assertion, nothing in the manner in which the words “products” and “materials” are used elsewhere in the policy suggests that those words should not also be construed according to their ordinary meaning. Moreover, a care
We agree with the trial court, therefore, that “[t]he average policyholder could not reasonably reach a conclusion of coverage in the particular circumstances here in the light of and having in mind the language of the . . . [exclusionary provision]. . . . Adoption of [Gonzalez’] contention in the light of the . . . language of the [exclusionary provision] here would render meaningless the words by which the parties expressed their bargain and read into the contract something which is not there.” (Citation omitted; internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., supra, 214 Conn. 591. Accordingly, we reject Gonzalez’ claim that lead paint falls outside the scope of the policy’s broad exclusion for injuries resulting from “exposure to, or contact with . . . lead contained in goods, products or materials.”
II
Gonzalez also maintains that the trial court improperly rendered summary judgment for Peerless notwithstanding her contention that the policy’s exclusion for “lead contained in goods, products or materials” may be unenforceable to the extent that the exclusion applies to lead paint. In essence, Gonzalez claims that such an exclusion could violate regulations promulgated by the United States Department of Housing and Urban Development (HUD) under the act making it unlawful for a person to “refus[e] to provide municipal services or property or hazard insurance for dwellings or providing such services differently because of race, color, reli
The following additional facts are relevant to this issue. On May 20, 1996, Gonzalez filed a supplemental memorandum in opposition to Peerless’ summary judgment motion claiming that if the policy’s lead exclusion covers lead paint, then that exclusion constitutes “discriminatory ‘redlining’ based upon . . . familial status.”
On appeal, Gonzalez reasserts the two principal claims that she made in the trial court regarding the applicability to this case of the regulations promulgated
Gonzalez’ first claim lacks merit because nothing in the record supports a conclusion that Peerless has engaged in redlining activities prohibited under the act. Even if we assume, arguendo, that an insurance company’s refusal to issue policies insuring against injuries arising from lead paint poisoning constitutes a violation of the regulations promulgated under the act,
Gonzalez next maintains that the trial court should have denied Peerless’ summary judgment motion because she had had insufficient opportunity to conduct
The judgment is affirmed.
In this opinion the other justices concurred.
Gonzalez, who was five years old when the suit was filed, brought the action by and through Correa as her next friend.
Jefferson Street Medical Building, Inc., also is named as a defendant in that action. Gonzalez v. Jefferson Street Medical Building, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV95-0467121S.
Friedman, Angel and Jefferson Street Medical Building, Inc., also are defendants in this action.
The policy contained an endorsement that provided in relevant part: “LEAD EXCLUSION ... A. This insurance does not apply: (1) To Bodily Injury, Property Damage or Personal Injury arising in whole or in part out of the mining, processing, manufacture, storage, distribution, sale, installation, removal, disposal, handling, use or existence of, exposure to, or contact with lead or lead contained in goods, products or materials . . . .”
Neither Friedman, Angel nor Jefferson Street Medical Building, Inc., has appealed from the summary judgment rendered by the trial court in favor of Peerless. See footnote 3 of this opinion.
We need not decide, therefore, whether paint that has been applied in accordance with its intended use falls within the definition of the term “goods” for purposes of the policy’s lead exclusion.
Gonzalez further alleged that a policy exclusion covering lead paint “constitutes discriminatory ‘redlining’ . . . also probably [based] upon race and/or national origin.” Gonzalez, however, did not brief that claim in the trial court, and she has not done so on appeal. Accordingly, we deem it to be abandoned.
“Familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with'—
“(a) A parent or another person having legal custody of such individual or individuals . . . 24 C.F.R. § 100.20 (1996).
As Gonzalez points out, our legislature has recognized the danger that lead paint poses to young children. See, e.g., General Statutes § 19a-111c (“[t]he owner of any dwelling in which the paint, plaster or other materials contain toxic levels of lead and in which children under the age of six reside, shall abate or manage such dangerous materials consistent with regulations adopted [by the commissioner of public health]”).
Practice Book § 382 provides: “[Summary Judgments] — When Appropriate Documents Are Unavailable
“Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or
Steele's affidavit provides as follows:
“I, John-Henry M. Steele, Esq., being duly sworn, do depose and say:
1. I am over the age of eighteen (18) and believe in the obligation of the oath.
2. I am counsel for the minor defendant [Gonzalez] and [her] mother [Correa] in this action.
3. Essential facts exist regarding whether the [l]ead [ejxclusion language relied upon by [Peerless] violates the [act].
4. The issues [regarding the applicability of the act] raised by [Gonzalez] in [her] supplemental memorandum in opposition [to Peerless’ motion for summary judgment] are both new and novel.
5. Furthermore, the case is very new, carrying a return date of September 5, 1995. [Peerless’ mjotion for [s]ummary [¡Judgment was filed shortly thereafter.
6. [Gonzalez has] not had sufficient opportunity to conduct discovery and present facts to justify [her] opposition [to Peerless’ summary judgment motion on the ground that the policy’s lead exclusion] violates the [act].
7. Nor [has Gonzalez] had time to discover other essential facts relevant to potential defenses — for example, whether the insureds had adequate notice and/or knowledge of the lead exclusion.
/s/John-Henrv M. Steele. Eso.”
Gonzalez acknowledges that her claim under the act’s regulations is a “new and novel” one; see footnote 11 of this opinion; that has not been adjudicated previously in this or any other jurisdiction. We intimate no view as to whether an insurance company’s refusal to issue policies covering lead paint poisoning may constitute a violation of the act or the regulations promulgated thereunder.
Indeed, Gonzalez has not even provided a factual basis sufficient to warrant a good faith belief that Peerless refuses to issue policies covering ipjuries arising from exposure to or contact with lead paint. We note, moreover, that Peerless’ counsel indicated at oral argument that Peerless does, in fact, offer such policies, but at a higher premium than policies that exclude coverage for lead paint-related injuries. Gonzalez has not claimed that such higher priced policies violate the act.
We note that this case had been pending for one year when the trial court rendered its decision granting Peerless’ motion for summary judgment, and that the trial court did not issue its decision on the summary judgment motion until more than nine months after it had been filed. The trial court, therefore, reasonably could have concluded that it was incumbent upon Gonzalez to explain why more time was needed to conduct discovery regarding her claim under the act.
The trial court did not expressly address Gonzalez’ claim under Practice Book § 382, instead concluding generally that Gonzalez had failed to demonstrate that her claim under the act was supportable. Gonzalez, however, does not contend that the trial court, in granting Peerless’ summary judgment motion, failed to consider her claims under § 382, or that the court otherwise failed to exercise its discretion under that provision. Moreover, “to the extent that the trial court’s memorandum of decision may be viewed as ambiguous in this respect, we read an ambiguous record, in the absence of amotion for articulation, to support rather than to undermine the judgment.” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994); see also Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993). Because Gonzalez filed no such motion, we must assume that the trial court properly considered and rejected her contention under § 382.
At oral argument, Gonzalez maintained that we should decide the legal sufficiency of her claim under the act notwithstanding the fact that she had failed to engage in discovery to determine whether a factual basis exists to support that claim. Gonzalez asserts that we should do so because her claim is a novel one and because the necessary discovery will be expensive. Gonzalez further contends that if we determine that her claim is a legally viable one, then we should remand the case to the trial court so that she may conduct the appropriate discovery. We decline Gonzalez’ invitation to reach the merits of her claim because to do so would be contrary to our well established rule against the issuance of opinions on matters of law for which a sufficient factual predicate has not been established. See, e.g., Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Singh v. Singh, 213 Conn. 637, 654, 569 A.2d 1112 (1990).