INSURANCE LAW: Appellate Court finds a duty to defend where complaint could reasonably be construed to assert claim not within scope of exclusion:

7/5/2017 | Peter K. O'Keefe


Peter K. O'Keefe

INSURANCE LAW: Appellate Court finds a duty to defend where complaint could reasonably be construed to assert claim not within scope of exclusion:

Following a denial of coverage by the insurer under a public entity errors and omissions liability policy, the municipality brought a declaratory judgment action claiming that the insurer had improperly denied coverage pursuant to an exclusion.  The exclusion provided that coverage would not apply to any claim “based upon, arising out of, directly or indirectly resulting from, or in consequence of construction, architectural or engineering contracts or any other procurement contract; or (2) for which the insured has assumed liability in a contract or agreement.”  The provision further stated that the exclusion “does not apply to liability for damages that the insured would have in the absence of the contract or agreement.”  The underlying litigation alleged that the municipality had agreed to assist in the development and implementation of a wireless communication tower, but had abandoned that agreement.  The operative complaint alleged breach of contract, promissory estoppel, and negligent misrepresentation.  Reversing the trial court, the Appellate Court holds that a duty to defend exists because the negligent misrepresentation count is not necessarily within the scope of the exclusion.  “Depending on the evidence presented, a finder of fact perhaps could find on these allegations that a contract existed and that any alleged negligent misrepresentation ‘arose out of’ that contract, but it could also find that regardless of whether an enforceable contract had been created, one or more negligent misrepresentations had been made in the court of discussions between the parties, and there was arguably no limiting language as to when such misrepresentations were made.”  While recognizing the broad scope of “arising out of” under Connecticut insurance law, the Appellate Court nonetheless holds that a duty to defend exists.  “It was entirely possible from a reading of the allegations of the complaint that the negligent misrepresentation claim, while arising from the ‘same facts’ as the contract claim, did not arise out of a contract.  This possibility triggered the defendant’s duty to defend in the underlying action.”  Town of Monroe v. Discovery Property & Casualty Ins. Co., 169 Conn. App. 644 (2016)

If you have a possible claim, you will need to review your options timely. For assistance, call the attorneys at Jackson O’Keefe now at (860) 276-8100.

With offices in Southington and Wethersfield, as well as satellite offices in East Haddam, Bloomfield, Farmington, and Marlborough our lawyers strive to meet the needs of area residents, making getting your legal services easier than ever.  Call us now to speak with us about your case. (860) 278-4040 during business hours or 860.966.7436 any time, or email us any time at

Our Wethersfield office:  
433 Silas Deane Highway
Wethersfield, CT 06109
Phone: 860.278.4040
Fax: 860.527-2500

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