Lift-Up, Inc. v. Colony Ins. Co.

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LIFT-UP, INC., ET AL. v. COLONY
INSURANCE COMPANY ET AL.
(AC 43755)
Bright, C. J., and Elgo and Clark, Js.

Syllabus

The substitute plaintiffs, D and A, sought a declaratory judgment to deter-
mine the rights and obligations of the parties under a certain insurance
policy that had been issued to the plaintiff L Co., a wheelchair accessible
van seller and van modifying company, by the defendant C Co. In an
underlying personal injury action, D, a paraplegic confined to a motor-
ized wheelchair, sought damages for injuries he sustained in connection
with a confrontation with K, an employee of L Co. During an argument
D had with K about modifications L Co. made to D and A’s van, the
confrontation turned physical when K slapped a baseball cap off D’s
head. When K saw that A, D’s wife, had recorded the incident on her
cell phone, he grabbed the phone from her and threatened in crude
terms to break it. As D moved his wheelchair toward K in order to
retrieve the cell phone, K grabbed D’s arm and the wheelchair and
altered its path, which caused D to fall from his wheelchair and sustain
serious injuries. D and A settled an underlying personal injury action
against L Co. and K by means of a stipulation for judgment. L Co. and
K commenced an action against C Co. seeking a legal declaration that,
under their insurance policy, C Co. had a duty to defend and indemnify
them for the claims alleged in the personal injury action. As part of the
stipulated settlement of the personal injury action, L Co. assigned its
rights under the policy to D and A, and D and A were substituted as
party plaintiffs. The trial court granted a motion for summary judgment
filed by C Co. as to D and A’s complaint and its counterclaim, from
which D and A appealed to this court. Held:
1. The trial court did not err in holding that the exclusion provisions under
the insurance policy pertaining to an assault or battery applied to D’s
and A’s claims and that there was no coverage under the policy because
D’s injuries were not caused by an accident that resulted from garage
operations, and properly determined that C Co. had no duty to provide
a defense to L Co. pursuant to the exclusion provisions: the policy
excluded claims for injuries that arose out of an assault or battery or
both, and K’s slapping D’s baseball cap and grabbing A’s cell phone and
threatening to break it constituted actual harmful or offensive contact
and verbal abuse from which D’s injuries arose because if K had not
escalated the verbal argument into verbal abuse and engaged in offensive
contact with both D and A, D would not have moved his wheelchair in
K’s direction and K would not have had the opportunity to grab D or
his wheelchair to divert D’s path; accordingly, D’s injuries grew out of,
flowed from, had their origins in, and were connected with K’s intentional
acts, which by themselves, constituted an assault, battery, or assault
and battery within the meaning of the policy.
2. The trial court did not improperly confine its analysis to the operative
complaint and refuse to consider certain pieces of extrinsic evidence
that allegedly supported C Co.’s duty to defend: at the time the court
heard oral arguments on the motion for summary judgment, it stated
that it had reviewed ‘‘everything,’’ and the documents at issue were
attached to D and A’s objection to the motion for summary judgment,
and, without evidence to the contrary, this court concluded that the
trial court reviewed those documents; moreover, even if the court had
not reviewed the documents, they were insufficient to support D and
A’s claim that C Co. had a duty to defend, as there were no meaningful
factual differences between the documents and the operative complaint.
Argued April 5—officially released August 24, 2021

Procedural History

Action seeking a declaratory judgment determining,
inter alia, the rights of the parties under a certain insur-
ance policy issued to the named plaintiff by the named
defendant concerning the underlying claims of the
defendant Dennis Kinman brought against the plaintiffs,
and for other relief, brought to the Superior Court in
the judicial of Danbury, where the named defendant
filed a counterclaim; thereafter, the defendant Dennis
Kinman and Amy Kinman were substituted as the plain-
tiffs; subsequently, the court, D’Andrea, J., granted the
named defendant’s motion for summary judgment on
the complaint and on the counterclaim and rendered
judgment thereon, from which the substitute plaintiffs
appealed to this court. Affirmed.
Brian Kluberdanz, with whom was David M. Cohen,
for the appellants (substitute plaintiffs).
Melicent B. Thompson, with whom, on the brief, was
Elizabeth O. Hoff, for the appellee (named defendant).
Opinion

CLARK, J. In this declaratory judgment action, the
substitute plaintiffs, Dennis Kinman (Kinman) and Amy
Kinman (jointly, Kinmans), appeal from the summary
judgment rendered by the trial court in favor of the
defendant Colony Insurance Company (Colony)1 on the
Kinmans’ amended complaint and Colony’s counter-
claim. The litigation centers on whether Colony had a
duty to defend the original plaintiffs, Lift-Up, Inc. (Lift-
Up) and its president, Bruce Kutner,2 in a personal injury
action that the Kinmans had brought against them.3 On
appeal, the Kinmans’ principal claim is that in granting
Colony’s motion for summary judgment, the court
improperly construed the allegations of the operative
complaint and the terms of the garage liability policy
that Colony had issued to Lift-Up. More to the point,
the Kinmans claim that the court improperly concluded
as a matter of law that their injuries were not caused
by an accident that resulted from Lift-Up’s garage opera-
tions but, rather, arose out of Kutner’s assault, battery,
or assault and battery, for which the policy provides
no coverage.4 The Kinmans also claim that the court
improperly (1) ignored extrinsic evidence that they
argue supported their claim that Colony had a duty to
defend and (2) predicated its ruling on allegations of
intentional and/or reckless conduct that were properly
pleaded in the alternative. We affirm the judgment of
the trial court.
The following facts underlie the appeal. Lift-Up is a
business located in Bethel that rents and sells wheel-
chair accessible vans and specializes in modifying such
vans to meet the needs of its customers. On or about
March 4, 2016, Colony issued a garage liability insurance
policy (policy) to Lift-Up, which provided coverage5
from March 4, 2016, to March 4, 2017. The policy con-
tains coverage and exclusion provisions that are at issue
in this appeal.
The facts alleged in the underlying personal injury
action may be summarized as follows. Kinman is a para-
plegic confined to a motorized wheelchair. In October,
2016, he purchased a new van through Lift-Up and
entered into a contract with Lift-Up and Kutner to mod-
ify the van for his use. Kinman was dissatisfied with
the modifications Lift-Up made, and he returned the
van several times for repair. On December 3, 2016, the
Kinmans went to Lift-Up to retrieve the van. While they
were there, Kinman and Kutner had an argument that
turned physical when Kutner slapped the baseball cap
Kinman was wearing from his head. When Kutner saw
that Amy Kinman had recorded the dispute on her cell
phone, he grabbed the cell phone from her and threat-
ened in crude terms to break it. Kinman moved his
wheelchair toward Kutner in order to retrieve the cell
phone. As Kinman moved toward Kutner, Kutner
grabbed Kinman’s arm and the wheelchair and altered
the path of the wheelchair, which caused Kinman to
fall from his wheelchair and sustain serious injuries.6
In March, 2017, Kinman commenced the personal
injury action against Lift-Up and Kutner seeking dam-
ages for the injuries he had sustained.7 See footnote 3
of this opinion. In May, 2017, he filed an application
for a prejudgment remedy. That application was granted
in the amount of $250,000 in August, 2017. On February
2, 2018, Kutner executed an affidavit in connection with
a criminal proceeding related to the December 3, 2016
incident.8 In his affidavit, Kutner attested that he did
not expect or intend to harm Kinman when he diverted
the path of Kinman’s wheelchair. Amy Kinman subse-
quently intervened in the personal injury action, and, on
March 5, 2018, the Kinmans filed an amended complaint
(operative complaint in the personal injury action) 9 to
conform to the ‘‘new’’ evidence in Kutner’s affidavit.
On November 16, 2018, the Kinmans settled the per-
sonal injury action by means of a stipulation for judg-
ment.10 The stipulation for judgment provided that (1)
the Kinmans were awarded $850,000 in compensatory
damages against Lift-Up and $175,000 in exemplary
damages against Kutner;11 (2) Kutner was to pay the
$175,000 judgment rendered against him ‘‘as partial con-
sideration toward the satisfaction of the [s]tipulated
[j]udgment’’; (3) Lift-Up was to pay nothing toward the
$850,000 judgment rendered against it, and instead
assigned to the Kinmans its rights under the Colony
policy; and (4) the Kinmans were only to pursue Colony,
and not Lift-Up or Kutner, for payment of the $850,000
judgment for compensatory damages entered against
Lift-Up.
The following facts are alleged in the declaratory
judgment action. As previously stated, Colony had
agreed to provide Lift-Up with liability insurance cover-
age for bodily injury caused by an accident resulting
from garage operations. See footnote 5 of this opinion.
In June, 2017, approximately six months after the
December 3, 2016 incident and several months after
Kinman had commenced the personal injury action,
Lift-Up submitted Kinman’s claim to Colony for a
defense and indemnification under the policy. Colony
informed Lift-Up that it was reserving its rights under
the policy pending receipt of the ‘‘legal papers’’ and
conducting an investigation. On June 22, 2017, Colony
informed Lift-Up that, on the basis of the allegations
in the personal injury action for intentional assault,
intentional infliction of emotional distress and negligent
assault and battery, specific exclusion provisions in
the policy may preclude coverage and that Colony was
handling the matter under a reservation of rights. On
June 28, 2017, Colony informed Lift-Up that there was
no coverage available under the policy.
In December, 2017, Lift-Up and Kutner commenced
an action against Colony that sought a legal declaration
that, under the policy, Colony had a duty to defend and
indemnify them for the claims alleged in the personal
injury action. As part of the November, 2018 stipulated
settlement of the personal injury action, Lift-Up
assigned its rights under the policy to the Kinmans. As
a result of the assignment of Lift-Up’s claim against
Colony in the stipulated settlement in the personal
injury action, in January, 2019, the Kinmans moved to be
substituted as the plaintiffs in the declaratory judgment
action and thereafter filed an amended complaint
against Colony pursuant to the direct action statute,
General Statutes § 38a-321.12 The Kinmans sought from
Colony satisfaction of their $850,000 compensatory
damages stipulated judgment against Lift-Up.
In response, on March 29, 2019, Colony filed an
answer, special defenses, and a counterclaim. The
multicount counterclaim sought declarations that (1)
Colony had no duty to defend or indemnify Lift-Up
under the policy as to the underlying claims against
Lift-Up because (a) the policy’s assault and battery
exclusion endorsement applied to bar coverage for such
claims and (b) the damages for which coverage was
sought were not caused by an ‘‘accident resulting from
‘garage operations,’ ’’ and (2) because Colony had no
duty to defend Lift-Up as to the underlying claims
against Lift-Up, Colony was not liable for any portion
of the $850,000 stipulated judgment entered against Lift-
Up in the underlying action.13 On April 1, 2019, Colony
moved for summary judgment as to the Kinmans’ com-
plaint and its own counterclaim.
Following argument on the motion for summary judg-
ment, the court, D’Andrea, J., issued a memorandum
of decision granting Colony’s motion for summary judg-
ment as to the Kinmans’ complaint and Colony’s coun-
terclaim. In its memorandum of decision, the court
reviewed all counts of the operative complaint in the
personal injury action to determine whether ‘‘at least
one allegation of the complaint falls even possibly
within the coverage’’; (internal quotation marks omit-
ted) Travelers Casualty & Surety Co. of America v.
Netherlands Ins. Co., 312 Conn. 714, 739, 95 A.3d 1031
(2014); as the Kinmans claimed, or ‘‘the only causes
reasonably construed from the [operative] complaint
. . . that do not unreasonably contort the meaning of
the language of the complaint, are for injury arising out
of assault and battery’’; Clinch v. Generali-U.S. Branch,
110 Conn. App. 29, 39, 954 A.2d 223 (2008), aff’d, 293
Conn. 774, 980 A.2d 313 (2009); as Colony contended.
In doing so, the court noted that ‘‘an insurer’s duty to
defend, being much broader in scope and application
than its duty to indemnify, is determined by reference
to the allegations contained in the complaint.’’ Flint v.
Universal Machine Co., 238 Conn. 637, 646, 679 A.2d
929 (1996).
Although the court parsed all counts of the operative
complaint in the personal injury action, our resolution
of the appeal focuses on the allegations in counts one
and two of that complaint, each titled negligence.14
Count one, which purports to assert a negligence claim
against Lift-Up, alleges that Kinman attempted to pick
up the vehicle at least five times between October 16
and December 3, 2016. Each time Kinman drove the
vehicle, he discovered that several modifications had
not been completed properly and that the vehicle was
not safe for him to operate. When Kinman returned the
vehicle to Lift-Up, Kutner ‘‘often became enraged with
[Kinman] and threatened to cancel the modification
contract.’’ (Emphasis added.)
On December 3, 2016, the Kinmans attempted to pick
up the vehicle. Shortly after they arrived, ‘‘a verbal
argument between [Kutner] and [Kinman] began . . . .
[Kutner] . . . escalated the verbal dispute into a phys-
ical one by slapping [Kinman’s] baseball cap off his
head. [Amy] Kinman was recording the altercation with
her [cell] phone and . . . [Kutner] grabbed the cell
phone away from her and threatened to ‘break this
fucking thing right now.’ ’’ (Emphasis added.) Kinman
‘‘attempted to retrieve [Amy Kinman’s] cell phone . . .
and . . . moved his wheelchair in [Kutner’s] direc-
tion,’’ and ‘‘[Kutner] . . . grabb[ed] Kinman] and his
wheelchair and mov[ed] it to the side.’’ (Emphasis
added.) In ‘‘moving or pushing [Kinman] and his
wheelchair,’’ Kutner caused Kinman to fall from his
wheelchair and sustain bodily injuries. (Emphasis
added.)15
The court found Kutner’s conduct was ‘‘clearly
aggressive and uncontrolled behavior [that] sounds
more in intentional conduct than negligence. The start-
ing point of ‘slapping the baseball cap off [Kinman’s]
head’ is, at best, an attempted assault if Kutner only
struck the cap, and at worst, an assault and battery by
the definitions in the . . . policy . . . .’’
Applying the policy language to the facts of the opera-
tive complaint in the personal injury action, the court
found that, notwithstanding the titles assigned to counts
one and two, each count alleged facts amounting to an
assault, a battery, or an assault and battery, and were
therefore barred under the policy’s unambiguous exclu-
sions provision.16 It also concluded that the injuries
Kinman sustained on December 3, 2016, were not
caused by an ‘‘accident’’ that resulted from ‘‘garage
operations.’’17 Colony, therefore, had no duty to defend,
and thus no duty to indemnify. Thus, the court granted
the motion for summary judgment as to the Kinmans’
March 12, 2019 complaint and Colony’s counterclaim.
The Kinmans appealed that judgment to this court.
We first set forth the well established standard of
review of a court’s granting a motion for summary judg-
ment. ‘‘Practice Book § [17-49] provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party.’’ (Internal quotation
marks omitted.) Dreher v. Joseph, 60 Conn. App. 257,
259–60, 759 A.2d 114 (2000). ‘‘The facts at issue are
those alleged in the pleadings.’’ (Internal quotation
marks omitted.) Parnoff v. Aquarion Water Co. of Con-
necticut, 188 Conn. App. 153, 164, 204 A.3d 717 (2019).
‘‘The motion for summary judgment is designed to
eliminate the delay and expense of litigating an issue
when there is no real issue to be tried. . . . However,
since litigants ordinarily have a constitutional right to
have issues of fact decided by a jury . . . the moving
party for summary judgment is held to a strict standard
. . . of demonstrating his entitlement to summary judg-
ment.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Grenier v. Commissioner of
Transportation, 306 Conn. 523, 534–35, 51 A.3d 367
(2012).
Because there are no factual issues in dispute in the
present case, the legal question is whether Colony had
a duty to defend its insureds. ‘‘The question of whether
an insurer has a duty to defend its insured is purely a
question of law, which is to be determined by comparing
the allegations of [the] complaint with the terms of the
insurance policy.’’ (Internal quotation marks omitted.)
Wentland v. American Equity Ins. Co., 267 Conn. 592,
599 n.7, 840 A.2d 1158 (2004). ‘‘[O]ur review is plenary
and we must decide whether [the trial court’s] conclu-
sions are legally and logically correct and find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Dreher v. Joseph, supra, 60 Conn.
App. 260.
‘‘[T]he duty to defend means that the insurer will
defend the suit, if the injured party states a claim, which,
qua claim, is for an injury covered by the policy; it is
the claim which determines the insurer’s duty to defend
. . . .’’ (Internal quotation marks omitted.) Hartford
Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co.,
274 Conn. 457, 464, 876 A.2d 1139 (2005). Our Supreme
Court repeatedly has stated that the duty to defend is
considerably broader than the duty to indemnify. ‘‘[A]n
insurer’s duty to defend, being much broader in scope
and application than its duty to indemnify, is deter-
mined by reference to the allegations contained in the
[underlying] complaint. . . . The obligation of the
insurer to defend does not depend on whether the
injured party will successfully maintain a cause of
action against the insured but on whether he has, in
his complaint, stated facts which bring the injury within
the coverage. If the latter situation prevails, the policy
requires the insurer to defend, irrespective of the
insured’s ultimate liability. . . . It necessarily follows
that the insurer’s duty to defend is measured by the
allegations of the complaint.’’ (Internal quotation marks
omitted.) Security Ins. Co. of Hartford v. Lumbermens
Mutual Casualty Co., 264 Conn. 688, 711–12, 826 A.2d
107 (2003).
‘‘Where . . . an insured alleges that an insurer
improperly has failed to defend and provide coverage
for underlying claims that the insured has settled the
insured has the burden of proving that the claims were
within the policy’s coverage . . . .’’ Metropolitan Life
Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36,
55, 730 A.2d 51 (1999); see also Griswold v. Union
Labor Life Ins. Co., 186 Conn. 507, 517–18, 442 A.2d
920 (1982) (insured entitled to coverage under policy
if it can demonstrate it qualifies under terms and condi-
tions). Only after the insured has demonstrated that
claims fall within a policy’s coverage does the insurer
then have ‘‘the burden of proving that the claim for
which coverage is sought falls within a policy’s exclu-
sion.’’ Lancia v. State National Ins. Co., 134 Conn. App.
682, 690, 41 A.3d 308, cert. denied, 305 Conn. 904, 44
A.3d 181 (2012).
I
On appeal, the Kinmans claim that the court erred
in holding that the policy’s exclusions provision per-
taining to an assault or battery apply to their claims and
that there was no coverage under the policy because
Kinman’s injuries were not caused by an ‘‘accident’’
that resulted from ‘‘garage operations.’’ They argue that
the operative complaint in the personal injury action
alleges that Kinman’s injuries arose solely out of a busi-
ness dispute between the parties and were the result
of an ‘‘accident’’ within the meaning of the policy. They
essentially argue that the court erroneously failed to
focus exclusively on the very specific and discrete acts
that were alleged to be the proximate cause of Kinman’s
injuries, i.e., Kutner’s allegedly unintentional and ‘‘care-
less’’ use of force in diverting Kinman’s wheelchair as
it moved toward him. As a result, they claim that this
case is distinguishable from cases Colony and the court
relied on because in each of those cases the injuries
sustained were alleged to have been proximately caused
by intentional conduct. They further argue that the pol-
icy does not bar the claims because (a) the exclusion
provisions are ambiguous insofar as they purport to
exclude claims arising out of an ‘‘unintentional’’ assault
or battery,18 and (b) the negligent conduct alleged in
the complaint does not meet the definition of a negligent
assault or battery under Connecticut law. We disagree
and conclude that, even if we assume arguendo that
coverage was triggered because Kinman’s injuries were
caused by an accident resulting from garage operations,
the claims are nevertheless barred by the policy’s exclu-
sions provision because Kinman’s injuries ‘‘arose out
of’’ conduct constituting an intentional assault or bat-
tery as those terms are defined in the policy.
Resolution of the claims requires us to examine the
allegations of the operative complaint in the personal
injury action and the language of the policy to determine
whether Colony is required to defend Lift-Up. See Board
of Education v. St. Paul Fire & Marine Ins. Co., 261
Conn. 37, 41, 801 A.2d 752 (2002). We look first at the
language of the policy.
Construction of a contract of insurance is a question
of law for the court to review de novo. Hansen v. Ohio
Casualty Ins. Co., 239 Conn. 537, 543, 687 A.2d 1262
(1996). ‘‘The [i]nterpretation of an insurance policy, like
the interpretation of other written contracts, involves
a determination of the intent of the parties as expressed
by the language of the policy. . . . The determinative
question is the intent of the parties, that is, what cover-
age the . . . [insured] expected to receive and what
the [insurer] was to provide, as disclosed by the provi-
sions of the policy. . . . It is axiomatic that a contract
of insurance must be viewed in its entirety, and the
intent of the parties for entering it derived from the
four corners of the policy. . . . The policy words must
be accorded their natural and ordinary meaning . . .
[and] any ambiguity in the terms of an insurance policy
must be construed in favor of the insured because the
insurance company drafted the policy. . . . A neces-
sary predicate to this rule of construction, however, is
a determination that the terms of the insurance policy
are indeed ambiguous. . . . The fact that the parties
advocate different meanings of the [insurance policy]
does not necessitate a conclusion that the language is
ambiguous. . . . Moreover, [t]he provisions of the pol-
icy issued by the [insurer] cannot be construed in a
vacuum. . . . They should be construed from the per-
spective of a reasonable layperson in the position of
the purchaser of the policy.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Commu-
nity Action for Greater Middlesex County, Inc. v.
American Alliance Ins. Co., 254 Conn. 387, 399–400,
757 A.2d 1074 (2000).
The original exclusions provision in the policy states
in relevant part: ‘‘This insurance does not apply to any
of the following . . . Bodily injury or property damage
expected or intended from the standpoint of the
insured. But for garage operations other than covered
autos this exclusion does not apply to bodily injury
resulting from the use of a reasonable force to protect
persons or property.’’19 (Internal quotation marks omit-
ted.)
The policy’s exclusions provision was modified by
an endorsement that added an exclusion titled ‘‘Assault,
Battery, or Assault and Battery.’’ That provision
excludes from coverage claims for ‘‘ ‘[b]odily injury’
. . . arising out of . . . ‘Assault’, ‘Battery’ or ‘Assault
and Battery’ caused, directly or indirectly, by you, any
‘insured’, any person, any entity or by any means what-
soever . . . .’’ (Emphasis added.) The endorsement
contains the following definitions: ‘‘Assault means . . .
an intentional or unintentional act, including . . .
intimidation . . . verbal abuse, or any threatened
harmful or offensive contact between two or more per-
sons creating an apprehension in another of immediate
harmful or offensive contact . . . . Battery means an
intentional or unintentional act, including . . . any
actual harmful or offensive contact between two . . .
persons which brings about harmful or offensive con-
tact to another or anything connected to another.
Assault and [b]attery means the combination of an
[a]ssault and a [b]attery.’’ (Emphasis added; internal
quotation marks omitted.) Thus, the policy excludes
liability coverage for any bodily injury arising out of
an assault, battery, or assault and battery caused
directly or indirectly by anyone by any means whatso-
ever.
With respect to the complaint, ‘‘[t]he interpretation
of pleadings is always a question of law for the court.
. . . In addition, [t]he allegations of the complaint must
be given such reasonable construction as will give effect
to [it] in conformity with the general theory which it
was intended to follow, and do substantial justice
between the parties. . . . It is axiomatic that the par-
ties are bound by their pleadings.’’ (Citation omitted;
internal quotation marks omitted.) O’Halloran v. Char-
lotte Hungerford Hospital, 63 Conn. App. 460, 463, 776
A.2d 514 (2001).
The operative complaint in the personal injury action
alleges that on prior occasions Kutner became enraged
with Kinman when he returned the van for repairs.
During the December 3, 2016 incident resulting in Kin-
man’s injuries, Kutner argued with Kinman, slapped the
baseball cap from his head, grabbed Amy Kinman’s cell
phone and threatened in crude terms to break it. As
Kinman moved his wheelchair toward Kutner to retrieve
Amy Kinman’s cell phone, Kutner, for no alleged reason,
grabbed Kinman’s arm and wheelchair to divert its path,
which caused Kinman to fall to the ground and sustain
injuries. On the basis of those allegations, we conclude
that the Kinmans’ claim falls within the policy’s exclu-
sion for bodily injuries arising out of an assault or
battery.
We agree with the trial court that Kutner’s ‘‘slapping
the baseball cap off [Kinman’s] head is, at best, an
attempted assault if Kutner only struck the cap, and at
worst, an assault and battery by the definitions in the
. . . policy . . . .’’ (Internal quotation marks omitted.)
Kutner also committed an assault, battery and/or
assault and battery when he intentionally grabbed Amy
Kinman’s cell phone from her and threatened in crude
terms to break it. Those acts constituted ‘‘actual harm-
ful or offensive contact’’ and ‘‘verbal abuse’’ between
Kutner and Amy Kinman.
We also conclude that Kinman’s injuries arose out
of those acts. This is true even if we accept, without
deciding, the Kinmans’ claims that the complaint must
be read to allege that (a) Kutner did not intend to harm
Kinman when he engaged in the discrete act of grabbing
Kinman and his wheelchair, (b) the policy’s exclusions
are ambiguous to the extent they purport to define
unintentional acts as an ‘‘assault’’ or ‘‘battery,’’ and (c)
the discrete acts that proximately caused Kinman’s
injuries were unintentional and do not meet the ele-
ments of a common-law negligent assault or battery
under Connecticut law.20
The policy at issue does not exclude just those claims
for injuries ‘‘caused’’ by an assault or battery. Rather,
the policy excludes claims for injuries that arise out
of such conduct. As the Kinmans themselves note in
their brief, our courts have given an expansive meaning
to the phrase ‘‘arising out of’’ when used in an insurance
policy. (Emphasis added.) In Hogle v. Hogle, 167 Conn.
572, 577, 356 A.2d 172 (1975), our Supreme Court held
that ‘‘it is generally understood that for liability for an
accident or an injury to be said to ‘arise out of’ the ‘use’
of an automobile for purpose of determining coverage
under the appropriate provisions of a liability insurance
policy, it is sufficient to show only that the accident or
injury ‘was connected with,’ ‘had its origins in,’ ‘grew
out of,’ ‘flowed from,’ or ‘was incident to’ the use of
the automobile, in order to meet the requirement that
there be a causal relationship between the accident or
injury and the use of the automobile.’’ (Emphasis
added.) More recently in Board of Education v. St.
Paul Fire & Marine Ins. Co., supra, 261 Conn. 48, our
Supreme Court held that an injury or accident may be
said to arise out of the use of an automobile if the injury
or accident ‘‘ ‘was connected with,’ ’’ ‘‘ ‘had its origins
in,’ ’’ ‘‘ ‘grew out of,’ ’’ ‘‘ ‘flowed from,’ ’’ or ‘‘ ‘was inci-
dent to’ ’’ the use of the automobile. ‘‘Under this stan-
dard of causation, it need not be shown that the inci-
dent in question was proximately caused by the vehicle
for coverage to attach.’’ (Emphasis added.) Id.
It is thus well settled that an injury need not be
‘‘proximately caused’’ by an act or occurrence in order
to arise out of such an act or occurrence within the
meaning of an insurance contract. It is sufficient to
show more broadly that an accident or injury ‘‘was
connected with,’’ ‘‘had its origins in,’’ ‘‘grew out of,’’
‘‘flowed from,’’ or ‘‘was incident to’’ an incident or
occurrence. (Internal quotation marks omitted.) Id.
Applying that meaning to the phrase ‘‘arising out of’’
as it appears in the policy at issue in the present case,
it is clear that Kinman’s injuries arose out of an assault
or battery or both. The operative complaint alleges that
immediately preceding Kutner’s contact that allegedly
caused Kinman to fall and sustain bodily injuries, an
argument had ensued during which Kutner slapped the
baseball cap off Kinman’s head. Upon observing Amy
Kinman recording the incident on her cell phone, Kutner
then grabbed Amy Kinman’s cell phone and threatened
in crude and offensive terms to break it. Kinman then
moved his wheelchair in Kutner’s direction in an effort
to retrieve his wife’s phone at which point Kutner
grabbed Kinman and the wheelchair causing Kinman
to fall to the ground and sustain injuries.
If not for Kutner escalating the verbal argument into
verbal abuse and engaging in offensive contact with
both of the Kinmans, Kinman would not have moved
his wheelchair in Kutner’s direction and Kutner would
not have had the opportunity to grab Kinman or his
wheelchair to divert Kinman’s path. While the Kinmans
claim that Kutner acted negligently when he grabbed
Kinman and the wheelchair and that those negligent
acts proximately caused Kinman’s injuries, those acts
and Kinman’s injuries nevertheless arose out of Kutner’s
instigating intentional acts of slapping the baseball cap
off Kinman’s head and grabbing Amy Kinman’s cell
phone and threatening to break it. Kinman’s injuries,
therefore, ‘‘grew out of,’’ ‘‘flowed from,’’ ‘‘had [their]
origins in’’ and ‘‘[were] connected with’’ Kutner’s inten-
tional acts; (internal quotation marks omitted) id.;
which by themselves, constituted an ‘‘[a]ssault,’’ ‘‘[b]at-
tery’’ or ‘‘[a]ssault and [b]attery’’ within the meaning of
the policy. In this respect, the intentional conduct was
‘‘tied inextricably by the language of the complaint to
assault and battery.’’ Clinch v. Generali-U.S. Branch,
supra, 110 Conn. App. 39.
As a result, we conclude that the trial court properly
determined that Colony had no duty to provide a
defense to Lift-Up pursuant to the exclusions provisions
of the policy.
II
The Kinmans second claim is that when deciding
Colony’s motion for summary judgment, the court
improperly restricted its analysis to the operative com-
plaint and refused to consider two pieces of extrinsic
evidence that support Colony’s duty to defend. We do
not agree.
The Kinmans’ claim is premised on the rule that ‘‘the
duty to defend must be determined by the allegations
set forth in the underlying complaint itself, with reliance
on extrinsic facts being permitted only if those facts
support the duty to defend.’’ Misti, LLC v. Travelers
Property Casualty Co. of America, 308 Conn. 146, 161,
61 A.3d 485 (2013) (Misti).21 The Kinmans argue that
the court failed to consider the affidavit Kutner signed
as part of his application for an accelerated pretrial
rehabilitation program related to the criminal charges
lodged against him as a result of the December 3, 2016
incident. In addition, they argue that the court did not
consider the log Colony created during its investigation
of the incident, which contains a statement Kutner gave
to a claims investigator.
Colony disagrees with the Kinmans’ factual represen-
tation that the court failed to consider the documents
on the basis of the statement the court made at the
time it heard oral arguments on the motion for summary
judgment: ‘‘All right, so, I have reviewed everything.’’
The affidavit and Colony’s log were attached to the
Kinmans’ objection to the motion for summary judg-
ment. We agree with Colony and conclude, without
evidence to the contrary, that the court reviewed the
documents.
Moreover, for the sake of argument only, even if
the court had not reviewed the documents, they are
insufficient to support the Kinmans’ claim that Colony
had a duty to defend. There are no meaningful factual
differences among Kutner’s affidavit, Colony’s log, and
the operative complaint. The log created on June 13,
2017, is written in the third person by a Colony claims
examiner and states: ‘‘[A]s [Kinman] attempted to take
the phone [Kutner] grabbed [Kinman’s] wrist and he
fell out of his wheelchair because he was not wearing
a seatbelt.’’ In his February 2, 2018 affidavit, Kutner
attested in part: ‘‘I attempted to alter [Kinman’s] wheel-
chair’s course by grabbing [Kinman] and his wheelchair
and moving them to the side.’’ The essential conduct
described in each of the documents is similar to that
alleged in the complaint. As set forth in part I of this
opinion, however, we have determined that the claims
nevertheless fall within the policy’s exclusions provi-
sion. As a result, we conclude that the court did not
improperly confine its analysis to the operative com-
plaint and that, even if it did, the documents at issue
would not alter the outcome in this matter.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Dennis Kinman was originally named as a defendant in the declaratory
judgment action.
2
Lift-Up and Kutner were defendants in the personal injury action and
plaintiffs in the declaratory judgment action, but they have not participated
in the present appeal.
3
See Kinman v. Kutner, Superior Court, judicial district of Danbury,
Docket No. CV-XX-XXXXXXX-S.
4
The Kinmans listed the following issues in their appellate brief: whether
the court erred in ‘‘(1) determining that the negligent conduct described in
counts one and two of the operative complaint could not, even possibly,
be considered an accident that arose out of Lift-Up’s garage operations; (2)
determining that all of the negligent conduct described in counts one and
two of the operative complaint constitutes either an assault, a battery, or
an assault and battery; (3) restricting its analysis to the allegations in the
operative complaint and rejecting the evidentiary significance of two pieces
of extrinsic evidence that support Colony’s duty to defend Lift-Up; (4)
determining that no allegation in the operative complaint falls even possibly
within Colony’s insurance coverage thus triggering its duty to defend Lift-
Up; [and] (5) basing its ruling on allegations of intentional and/or reckless
conduct—properly pleaded in the alternative in counts three through five
of the operative complaint and irrelevant to Colony’s duty to defend its
insured—to determine that allegations in the negligence counts fall outside
Colony’s insurance coverage.’’
5
The coverage provision of the policy is in Section II and states in rele-
vant part:
‘‘A. Coverage
‘‘1. ‘Garage Operations’—Other Than Covered ‘Autos’
‘‘a. We will pay all sums an ‘insured’ legally must pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance applies caused
by an ‘accident’ and resulting from ‘garage operations’ other than the owner-
ship, maintenance or use of covered ‘autos.’
‘‘We have the right and duty to defend any ‘insured’ against a ‘suit’ asking
for these damages. However, we have no duty to defend any ‘insured’ against
a ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which
this insurance does not apply. We may investigate and settle any claim or
‘suit’ as we consider appropriate. Our duty to defend or settle ends when
the applicable Liability Coverage Limit of Insurance—‘Garage Operations’—
Other Than Covered ‘Autos’ has been exhausted by payment of judgment
or settlements.’’
6
The Kinmans do not allege a motive or reason for why Kutner grabbed
Kinman to alter the path of the wheelchair. At oral argument in this appeal,
counsel for both parties agreed that self-defense had not been alleged and
that separate provisions of the policy pertaining to claims arising from the
use of force in defense of persons or property do not apply.
7
The March, 2017 complaint alleged negligence, intentional assault, reck-
less and wanton misconduct, intentional infliction of emotional distress,
negligent infliction of emotional distress, and breach of warranty.
8
In his affidavit, Kutner attested that he was a defendant in a criminal
matter and in a civil matter that arose out of the same occurrence. He
further attested to the verbal disagreement between him and Kinman that
he escalated by slapping Kinman’s baseball cap from his head. Amy Kinman
was recording the incident on her cell phone, which he grabbed and threat-
ened to ‘‘ ‘break this fucking thing right now.’ ’’ Kinman attempted to retrieve
the cell phone from him and moved his wheelchair toward him. He attempted
to alter the course of the wheelchair by grabbing Kinman and his wheelchair
and moving them to the side. He further attested that he caused Kinman to
fall from his wheelchair. More particularly Kutner attested:
‘‘As someone who performs services for disabled customers on a regular
basis, I knew or should have known of [Kinman’s] limitations and susceptibil-
ity to injury, and I should have considered this factor when I pushed him
and his wheelchair, but I did not do so. I did not expect or intend any harm
to [Kinman] when I diverted his wheelchair, but I knew or should have
known of a serious risk of injury resulting from [Kinman’s] inability to
stabilize or brace himself when I pushed his wheelchair. I regret the injuries
suffered by [Kinman] and the distress to Amy Kinman.
‘‘As a condition of my application for and completion of the Accelerated
Pretrial Rehabilitation Program, I agree to make . . . restitution to [Kin-
man] for the injuries that resulted from my careless conduct.’’ (Emphasis
added.)
9
The operative complaint sounded in eight counts: Kinman’s claim of
negligence as to Lift-Up; Kinman’s claim of negligence as to Kutner; Kinman’s
claim of intentional assault as to Kutner; Kinman’s claim of reckless and
wanton misconduct as to Kutner; Kinman’s claim of intentional infliction
of emotional distress as to Kutner; Kinman’s claim of negligent infliction of
emotional distress as to Kutner and Lift-Up; Amy Kinman’s claim of bystander
emotional distress as to Kutner and Lift-Up; and Amy Kinman’s claim of
loss of consortium as to Kutner and Lift-Up.
10
The court, Mintz, J., rendered judgment in accordance with the stipula-
tion.
11
We note that exemplary damages are not available for simple negligence
claims. See Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992) (award
of exemplary damages requires evidence of reckless indifference to rights
of others or intentional and wanton violation of those rights).
12
General Statutes § 38a-321 provides in relevant part: ‘‘Upon the recovery
of a final judgment against any person, firm or corporation by any person
. . . for loss or damage on account of bodily injury . . . if the defendant
in such action was insured against such loss or damage at the time when
the right of action arose and if such judgment is not satisfied within thirty
days after the date when it was rendered, such judgment creditor shall be
subrogated to all the rights of the defendant and shall have a right of action
against the insurer to the same extent that the defendant in such action
could have enforced his claim against such insurer had such defendant paid
such judgment.’’
13
The March 29, 2019 counterclaim omitted any counts with respect to
Kutner because, in accordance with the terms of the stipulated judgment,
the Kinmans’ amended complaint sought to recover from Colony only the
$850,000 stipulated judgment entered against Lift-Up.
14
In their appellate brief, the Kinmans state that counts three through
five of the operative complaint in the personal injury action, which allege
intentional and wanton acts, are not relevant to the issues on appeal. We
consider any claims as to those counts abandoned.
15
Count two of the operative complaint in the personal injury action,
titled ‘‘Plaintiff Dennis Kinman’s Claim of Negligence as to Bruce Kutner,’’
is similar to count one, but omits the allegations concerning the events
preceding the date on which the Kinmans sustained injuries. It also omits
the allegation that Kutner slapped Kinman’s baseball cap off his head.
16
The exclusions provision of the policy is set forth in Section II of the
policy and an endorsement. The endorsement states: ‘‘This endorsement
modifies insurance provided under the following . . . GARAGE COVER-
AGE FORM . . . .’’
‘‘SECTION II—LIABILITY COVERAGE, B. Exclusions is amended and the
following added . . .
‘‘19. Assault, Battery, or Assault and Battery
‘‘ ‘Bodily injury,’ ‘property damage’ or ‘personal and advertising injury’
arising out of:
‘‘a. ‘Assault’, ‘Battery’ or ‘Assault and Battery’ caused, directly or indirectly,
by you, any ‘insured’, any person, any entity or by any means whatsoever
. . . .’’ (Emphasis added.)
17
Section II.A.1.a. of the policy provides in relevant part that Colony ‘‘will
pay all sums an ‘insured’ legally must pay as damages because of ‘bodily
injury’ or ‘property damage’ to which this insurance applies caused by an
‘accident’ and resulting from ‘garage operations’ . . . .’’ Section VI.A. pro-
vides that ‘‘ ‘Accident’ includes continuous or repeated exposure to the same
conditions resulting in ‘bodily injury’ or ‘property damage.’ ’’ Section VI.H.
of the policy defines ‘‘ ‘Garage operations’ ’’ as ‘‘the ownership, maintenance
or use of locations for garage business and that portion of the roads or
other accesses that adjoin these locations. ‘Garage operations’ includes the
ownership, maintenance or use of the ‘autos’ indicated in Section I of this
coverage form as covered ‘autos’. ‘Garage operations’ also include all opera-
tions necessary or incidental to a garage business.’’
18
In their brief, the Kinmans argue that because the policy defines a
battery as ‘‘ ‘an intentional or unintentional act, including . . . any actual
harmful or offensive contact between two or more persons’ ’’ but fails to
define the terms ‘‘ ‘harmful or offensive contact,’ ’’ the entire definition of
a battery is ambiguous ‘‘because no reasonable insured would believe that
his taking steps to avoid a collision . . . could possibly constitute ‘harmful
or offensive contact.’ ’’
19
As set forth in footnote 6 of this opinion, counsel for both parties agreed
that self-defense was not alleged as a motive for Kutner’s act of grabbing
Kinman and the wheelchair.
20
The Kinmans also argue that the court did not properly consider in
isolation their allegations of negligence, but rather focused on their alterna-
tive allegations of intentional or reckless conduct and, as a result, deprived
them of their right to plead in the alternative and to have their negligence
claim decided by a jury. These arguments warrant little further discussion.
Pursuant to our plenary review, we have read the operative complaint
broadly with attention to the general theory on which the Kinmans proceeded
against Lift-Up and Kutner. We cannot say that the court ‘‘cherry-picked’’
the allegations of the operative complaint looking only for nonnegligent
and/or assaultive types of behavior and ignored the claimed negligent acts.
The theory and language of each count of the operative complaint broadly
read demonstrates that Kinman’s injuries arose out of Kutner’s progressively
more aggressive acts of hostility toward the Kinmans. Consequently, the
court did not deny the Kinmans their right to plead alternative causes of
action or the right to have the case decided by a jury. Our law provides
that it is not the label affixed to the cause of action that controls an insurer’s
duty to defend. Rather, the duty to defend is predicated on the underlying
facts alleged in the complaint. See Smedley Co. v. Employers Mutual Liabil-
ity Ins. Co. of Wisconsin, 143 Conn. 510, 516, 123 A.2d 755 (1956). We
conclude that there is no disputed material fact for a jury to resolve.
21
The procedural posture in Misti is distinguishable from the present
case. In Misti, the parties ‘‘stipulated to a number of undisputed facts
regarding the circumstances surrounding [the victim’s] injuries . . . .’’
Misti, LLC v. Travelers Property Casualty Co. of America, supra, 308 Conn.
162. In the present case, the parties have not stipulated to any facts underly-
ing Kinman’s injury.