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INSURANCE COVERAGE: Superior Court finds no duty to defend negligence and other claims arising out of excluded assault and/or battery

INSURANCE COVERAGE:  Superior Court Finds No Duty To Defend Negligence And Other Claims Arising Out Of Excluded Assault And/or Battery

The Superior Court granted defendant’s Motion for Summary Judgment finding there was no duty to defend, and therefore no duty to indemnify where the plaintiff attempted to claim negligence in a cause of action clearly based on assault and battery.  The garage policy contained the following definitions:

“Assault means: 1. an intentional or unintentional act, including but not limited to sexual abuse, sexual assault, intimidation, sexual harassment, verbal abuse or any threatened harmful or offensive contact between two or more persons creating an apprehension in another of immediate harmful or offensive contact, or 2. an attempt to commit a Battery. Battery means an intentional or unintentional act, including but not limited to sexual abuse, sexual battery, sexual molestation or any actual harmful or offensive contact between two or more persons which brings about harmful or offensive contact to another or anything connected to another. Assault and Battery means the combination of an Assault and a Battery.”

The court held “the facts alleged in each count in the Operative Complaint have allegations that can only be reasonably interpreted as either an assault, a battery, or an assault and battery.  This is a thinly veiled attempt at having the negligence count control the duty to defend and the duty to indemnify.”

In its reasoning the court cited to State Farm Fire & Casualty Co. v. Bullock, 19 Conn. L. Rptr. 599, 602 “[a]s Justice Holmes memorably said, ‘even a dog distinguishes between being stumbled over and being kicked.’ …  For this reason, the same conduct cannot reasonably be determined to have been both intentionally and negligently tortious.”

 

Lift-Up, Inc., et al v. Colony Insurance Company, Superior Court, judicial district of Danbury, Docket No. CV18-6024755-S (December 11, 2019)

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