In Tina Perkins, Administratrix of the Estate of Tyrell Harris, et al. v. Hermitage Insurance Company, 2013 WL 951373 (Conn. Super. Ct., J.D. of Ansonia-Milford, Feb. 13, 2013), the Connecticut Superior Court (Matasavage, J.), held that the defendant-insurer, Hermitage Insurance Company (“Hermitage”), did not owe a duty to defend or indemnify its insured, Kangaroo’s Nite Klub (“Kangaroo’s”), under a commercial general liability (“CGL”) insurance policy.

The Court found the following facts to be undisputed: On December 27, 2003, both Tyrell Harris (“Harris”) and Jerome Brantley (“Brantley”) were business invitees of Kangaroo’s, when an unidentified male patron used a gun to shoot Harris and Brantley, resulting in injuries to both men and, ultimately, to Harris’ death. Specifically, the plaintiffs alleged that the unidentified male “used a gun to shoot Tyrell Harris in the abdomen” and “Jerome Brantley in the upper torso.”

As a result, Tina Perkins, as Administratrix of the Estate of Tyrell Harris, and Brantley, instituted a lawsuit against Kangaroo’s. In that action, the plaintiffs alleged that employees of Kangaroo’s observed a verbal altercation between the unidentified male patron and Harris. Nevertheless, these employees did not, according to the plaintiffs, notify the police. Thereafter, while the unidentified male patron and Harris were still on the premises, the unidentified male proceeded to physically assault Harris, inflicting a gunshot wound to Harris’ abdomen. As a result of this gunshot wound, Harris sustained serious injuries and ultimately passed away. The unidentified male patron also proceeded to physically assault Brantley, inflicting a gunshot wound to his upper torso.

Thus, the plaintiffs alleged that, at all relevant times, “[t]he aforementioned assault and battery, and the resulting injuries, death and damages, were caused by the negligence and carelessness of the defendant [Kangaroo’s], its agents, servants and/or employees. . .” The plaintiffs then alleged various ways in which they claimed that Kangaroo’s was negligent, including, but not limited to, its failure to provide a safe and secure environment, its failure to properly monitor, inspect and patrol the premises, its failure to adopt, promulgate and/or enforce rules, procedures, policies and/or regulations to recognize and deter criminal activity on the premises, including carrying guns into the premises, and its failure to adequately supervise and train its employees.

Subsequently, a judgment was entered against Kangaroo’s in the underlying action. Thereafter, the plaintiffs filed a direct action against Hermitage pursuant to Conn. Gen. Stat. § 38a-321 in an attempt to recover the amount of the judgments from it, as Kangaroo’s was insured under a CGL policy issued by Hermitage at the time of the alleged loss, December 27, 2003. However, after an investigation of the incident, Hermitage previously disclaimed coverage under the policy. Thus, in their complaint, the plaintiffs alleged that Hermitage was liable for breach of contract and breach of the covenant of good faith and fair dealing. Both of these counts stemmed from allegations that Hermitage breached its duty to defend and duty to indemnify Kangaroo’s in the underlying action.

In response to these allegations, Hermitage filed a motion for summary judgment. After briefing and argument, Judge Matasavage granted summary judgment in favor of Hermitage on all grounds upon which it moved. Overall, the Court rejected the plaintiffs’ claims that the underlying complaint sounded in negligence.

In the first instance, the Court determined that the December 27, 2003 incident was not an “occurrence” under the Hermitage policy. The policy defined an “occurrence” as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. Id. at *4. Under Connecticut law, an accident is an unintended occurrence. Id. at *5. Citing the Connecticut Supreme Court’s determination that the last event in the causal chain is what should be examined in order to determine whether an “occurrence” has been alleged, the Court focused on the alleged shooting to determine if there was coverage in this case, as the shooting was the actual event that caused the injuries. Id. at *5-6. Despite the plaintiffs’ claims that the shooting was accidental, the Court disagreed. In so holding, the Court stated that there were no qualifying words alleged in the underlying complaint which suggested “that the gun was used or fired in some manner unintentionally.” Id. at *6. Accordingly, the Court held that all the injuries caused by the December 27, 2003 incident were intentional. Id. As no accident took place, there was no “occurrence” as defined by the insurance policy and no coverage was available for the injuries sustained in the alleged assault.

Likewise, the Court held that coverage was barred for any and all claims arising out of the December 27, 2003 incident as a result of the Intentional Acts exclusion, which was contained within the policy. That exclusion provided that the policy did not cover “‘Bodily Injury’ or ‘Property Damage’ expected or intended from the standpoint of the insured or from the standpoint of any customer or patron of the insured.” Id. at *8. The Court noted that the appellate courts of Connecticut have held that, in applying the plain meaning of the word “intent,” assaults are intentional within the meaning of policy exclusions similar to the one at issue in this case. Id. at *7. As the underlying complaint alleged that the unidentified male was a patron of Kangaroo’s and as the allegations in the underlying complaint described conduct which was intentional, the Court held that Hermitage met its burden of proving that the Intentional Acts exclusion applied. Id. at *8.

In addition, the Court held that the policy’s Assault and/or Battery exclusion precluded coverage for the incident. Specifically, the exclusion provided that “this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising or alleged to arise out of: A) An assault and/or battery caused by or at the instigation or direction of: 1) the Insured, his agent, or employee; 2) any patron of the Insured; or 3) any other person; or B) Any act or omission of the Insured, his agent or employee in connection with the prevention or suppression of an assault and/or battery or criminal acts by third parties.” Id. at *10. Based upon this language and the facts of the case, the Court determined that any and all liability asserted against Kangaroo’s arose out of an assault and/or battery and, therefore, was excluded from coverage under the policy by virtue of the exclusion. Id. In coming to this conclusion, the Court highlighted the fact that the phrase “arising out of” is construed broadly under Connecticut law. Id. The Court further held that because the December 27, 2003 incident arose out of the intentional assault by the unidentified male “assailant,” the exclusion applied and no coverage was available for the injuries sustained. Id. In reaching its conclusion, the Court rejected the plaintiffs’ claims that the Assault and/or Battery exclusion was ambiguous and violated public policy. Id. at *12.

Consequently, summary judgment was entered in favor of Hermitage with respect to the plaintiffs’ breach of contract claim. In so holding, the Court emphasized that Hermitage had a reasonable basis for refusing to defend and indemnify Kangaroo’s under the policy and that the policy did not provide coverage to the insured and/or excluded coverage to the insured. Id. at *14. Thus, Hermitage’s failure to defend and indemnify Kangaroo’s could not constitute a breach of the covenant of good faith and fair dealing. Id. Summary judgment was, therefore, entered in favor of Hermitage as to plaintiffs’ claims that Hermitage breached the covenant of good faith and fair dealing. Id.

Hermitage Insurance Company was represented by Halloran & Sage’s Insurance Coverage Group.