Nationwide Mut Ins. Co. v. Pasiak, 173 A.3d 888, 327 Conn. 225 2017 Caselaw Access Project

On appeal to this court, the defendant Jeffrey S. Pasiak1 claims that the Appellate Court incorrectly concluded that his claim for coverage falls within the scope of the business pursuits exclusion contained within his umbrella policy. Specifically, the defendant asserts that the “ccurrence” that forms the basis for Sara Socci’s underlying tort claim did not arise from her employment or the defendant’s business, but instead arose from the defendant’s actions in not allowing Socci to leave his home after the encounter with Richard Kotulsky had ended. At the time of the relevant events, the defendant was covered by insurance policies issued by the plaintiffs, including a homeowners policy covering bodily injury and a personal umbrella policy covering bodily injury and personal injury.

Co., supra, 261 Conn. at 45, 47–48, 801 A.2d 752 (causal nexus to establish liability resulting from use of covered vehicle established when bus driver negligently allowed special education student to depart from bus unsupervised and student thereafter was sexually assaulted in school bathroom when driver’s negligence was direct factor in causing injury). Accordingly, this case law makes clear that the mere fact that the false imprisonment occurred after Socci arrived at her workplace would not, in and of itself, establish the requisite nexus. Our prior construction of those provisions has particular significance to the present case.

The defendant later walked in and was confronted by Kotulsky. Socci testified that she “heard Kotulsky say, ‘I loved you. How could you do that? I loved you. I loved her.’ … I realized that this was about a girl. They were fighting over a girl.” Although the policy defines the term “business” as “a trade, profession, occupation, or employment including self-employment,” it does not define “business pursuits” or “arising out of.” The meaning of both terms, however, has been articulated by this court as well as other jurisdictions considering this exclusion. As with Misiti, LLC, in Edelman the Appellate Court analyzed the “arising out of” language in the context of the broader duty to defend and still focused on the “mechanism” of the injury rather than the sequence of events leading to the exercise of said mechanism. Thus, as Edelman demands an analytical focus on the “mechanism” of injury in the broad duty to defend setting, an analysis of the narrower duty to indemnify—and the exclusions applicable thereto—should, at a minimum, require an equally narrow analytical focus as to the cause of injury.

See, e.g., TranSched Systems Ltd. v. Federal Ins. Co., 67 F.Supp.3d 523, 534 (D.R.I. 2014) (describing relitigating the underlying tort action as “uneconomical” and ordering mediation). Indeed, the plaintiffs have not cited a single case that supports the contention that in circumstances such as the present case the insurer is entitled to retry the underlying case. After the submission of exhibits, the plaintiffs’ counsel attempted to call Socci as a witness to testify. Upon inquiry by the trial court, counsel for the plaintiffs explained that he intended for Socci to testify to the issues enumerated in the brief so that the court could make a finding as to whether the defendant engaged in intentional conduct to cause emotional distress or false imprisonment and a finding on negligence.

In accordance with that reservation, the plaintiffs commenced the present action seeking a declaration that they had no duty to defend or indemnify the defendant in the Socci action. The plaintiffs then filed a motion for summary judgment, and the defendant filed a motion for summary judgment solely as to the duty to defend. The court concluded that the allegations of the complaint were sufficiently broad to obligate the plaintiffs to provide the defendant with a defense under both his homeowners policy and his personal umbrella policy. The court deemed it improper at that juncture to determine the plaintiffs’ duty to indemnify the defendant.

There was additional evidence in the Socci action relating to the matter raised by the Appellate Court on which the trial court made no findings, which that court may consider on remand. We express no view as to whether the court must credit this evidence or the weight that such evidence should be given if the court elects to credit it. The plaintiffs did not address this issue in their posttrial brief, apparently believing the seeseaco review issue was decided at summary judgment or in the trial court’s decision regarding the scope of trial. Nevertheless, the trial court discussed the issue in its memorandum of decision. The plaintiffs do not claim on appeal that the trial court improperly determined whether, or to what extent, the damages were caused by an occurrence under the umbrella policy. I express no opinion about the trial court’s analysis of that issue.

The defendant concedes that the plaintiffs could have proffered new evidence on the exclusions that were not litigated, but contends that they failed to take the proper steps to identify the information that they sought and the need for such evidence. As to the latter point, we previously have indicated that we need not consider whether the plaintiffs are entitled to a new trial because they were improperly denied the right to proffer new evidence. We have already determined that they are entitled to a new trial and simply provide guidance as to what that procedure should encompass. The defendant suggests that this conflict would be resolved if we were to construe the phrase “mental or physical abuse” to mean abuse of a sexual nature. He contends that, because this exclusion refers to “a variety of sexually based behaviors” (i.e., sexual molestation), the entire exclusion should be read to refer only to such behaviors.