Enfield Pizza Palace, Inc. v. Insurance Co. of Greater New York

755 A.2d 931, 59 Conn. App. 69, 2000 Conn. App. LEXIS 354
CourtConnecticut Appellate Court
DecidedJuly 25, 2000
DocketAC 19268
StatusPublished
Cited by5 cases

This text of 755 A.2d 931 (Enfield Pizza Palace, Inc. v. Insurance Co. of Greater New York) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Enfield Pizza Palace, Inc. v. Insurance Co. of Greater New York, 755 A.2d 931, 59 Conn. App. 69, 2000 Conn. App. LEXIS 354 (Colo. Ct. App. 2000).

Opinion

Opinion

SCHALLER, J.

The plaintiffs2 appeal from the judgment rendered in favor of the defendant, Insurance Company of Greater New York, in this declaratory judgment action concerning a dispute about the defendant’s duty to defend and indemnify the plaintiffs in an action filed against the plaintiffs. The trial court held that, under the terms of a commercial general liability policy issued by the defendant, the plaintiffs failed to show that they were entitled to a declaratory judgment requiring the defendant to defend and indemnify them. On appeal, the plaintiffs claim that the court improperly concluded that the provisions in the insurance policy were in conflict and that a reasonable resolution of the [71]*71terms established that the defendant was not required to defend and indemnify the plaintiffs to the full extent of the general liability coverage. We affirm the judgment of the trial court.

The following facts and procedural history provide the necessary background to the disposition of this appeal. The defendant issued the plaintiffs a comprehensive commercial policy that provides general liability, property, crime and automobile coverage. All of the parts, declarations and endorsements of the insurance policy were negotiated and submitted to the plaintiffs as a single document. The policy provides general liability coverage of $1 million.

Under a provision in the policy entitled, “Commercial General Liability Coverage Form,” coverage is excluded for bodily injury or damages for which the insured may be held liable by reason of “(1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverage.”

The insurance policy also contains a number of other provisions that are relevant to this appeal. The provision entitled, “Liquor Liability Coverage Form” provides coverage for damages for liability imposed on the insured by reason of the “selling, serving or furnishing of any alcoholic beverage.” That provision states that the insurer shall defend any action seeking those damages, but that the amount the insurer will pay for damages is limited as set forth in the policy. An endorsement entitled “Connecticut Changes—Liquor Liability” limits liquor liability coverage to $20,000 for each person and $50,000 for each common cause. Finally, an endorsement changing the policy concerning liquor liability provides that the exclusion under the general liability [72]*72coverage part for alcohol related injuries “does not apply.”

During the policy period, Mary H. McGloin was allegedly struck by an automobile driven by Alvard Reyes. Reyes was a minor who allegedly had become intoxicated before the accident at a tavern owned by the plaintiffs. The administrator of McGloin’s estate brought an action against the plaintiffs that is pending in the Superior Court. In the present case, the defendant alleged in a special defense that its liability limit under the policy is $20,000, and that it would pay the plaintiffs this amount and provide them with a defense under the provisions of the policy covering liquor liability.

The plaintiffs brought this declaratory judgment action seeking a judgment requiring the defendant fully to defend the plaintiffs in the McGloin action and to provide indemnity for damages for the full amount of $1 million under the general liability coverage provision of the insurance policy.

In its memorandum of decision, the court concluded that the policy provisions covering general liability and liquor liability were not ambiguous, but that they conflicted. The court concluded: “In the instant case the most reasonable interpretation of the subject policy that reconciles apparently conflicting provisions is that the Connecticut liquor liability coverage of $20,000-$50,000 limits applies to alcohol related injuries and the one million dollar general liability coverage applies to all other types of losses. This interpretation is consistent with the explanation [the] defendant gives in its brief that the alcohol exclusion was eliminated in the general Lability coverage so as not to conflict with the Connecticut liquor liability endorsement, which clearly applies to alcohol related injuries.” Accordingly, the court concluded that the plaintiffs had failed to show that they were entitled to a declaratory judgment.

[73]*73The plaintiffs claim that the court improperly concluded that the plain meaning of the terms of the insurance policy did not require the defendant to defend and indemnify them to the full extent of the commercial general liability coverage. We are not persuaded.

“ ‘[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint.’ Flint v. Universal Machine Co., [238 Conn. 637, 646, 679 A.2d 929 (1996)]. The ‘duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage.’ . . . Hogle v. Hogle, 167 Conn. 572, 576, 356 A.2d 172 (1975). Because ‘[t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured’; Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); ‘[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.’ . . . West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990), quoting West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986).” Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 323-24, 714 A.2d 1230 (1998).

In this case, the defendant’s duty to defend or indemnify the plaintiffs in the McGloin action depends on the interaction of four separate provisions in the policy: (1) the provision governing general liability coverage; (2) the provision governing liquor liability coverage; (3) the endorsement setting the limits of liquor liability coverage to $20,000 and $50,000; and (4) the endorsement stating that the exclusion for general liability coverage of bodily injury for alcohol related injuries does not apply. We must therefore examine the policy to determine whether it requires the defendant to defend and indemnify the plaintiffs for the injuries for which [74]*74the underlying tort claims in the McGloin action were based.

“ ‘Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law . . . which this court reviews de novo.’. . . Flint v. Universal Machine Co., supra, 238 Conn. 642.

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Bluebook (online)
755 A.2d 931, 59 Conn. App. 69, 2000 Conn. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enfield-pizza-palace-inc-v-insurance-co-of-greater-new-york-connappct-2000.