Injuries to Neighbor by Insured Barred by Exclusion in HO's Policy for Injury Caused by Violation of Penal Law

 

In Wilderman v. Powers, 110 Conn.App. 819 (Conn.App., 2008), the defendant and third party plaintiff, Gregory Powers, appealed the summary judgment rendered by the trial court in favor of the third party defendant, Cambridge Mutual Fire Insurance Company. Powers claimed that the court improperly 1) considered evidence that had not been authenticated and would not have been admissible at trial and 2) concluded that no genuine issue of material fact existed as to whether the injuries alleged by the plaintiffs, Lisa and Scott Wilderman, were caused by criminal acts committed by him. The plaintiffs had brought a complaint against Powers asserting negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium.

 

The Wildermans lived next door to Powers and his wife. On the evening of August 5, 2004, Powers entered the Wildermans' property, approached a bathroom window and attempted to photograph Lisa while she was partially unclothed. Startled upon detecting the presence of someone outside the bathroom window with a camera, Lisa notified the police, who arrested Powers while in possession of a camera. The police subsequently executed a search warrant at Powers' residence and they found photographs, videotapes, and computer equipment depicting a partially-clothed Lisa, as well as a telescope that had been focused on the plaintiffs' residence.

 

The Wildermans contended that Lisa suffered severe emotional shock, distress, depression and anxiety as a result of Powers' actions. Lisa further alleged that Powers “knew or should have known that his conduct … involved an unreasonable risk of causing emotional distress and harm to her which might result in illness or bodily injury.” Lisa Wilderman further alleged that as a result of Powers' conduct she suffered emotional distress, anxiety, fear and depression, and that she expended money for medical care and treatment, including counseling and therapy, and that the plaintiffs were forced to sell their home for a reduced price in order to facilitate their ability to move out of the neighborhood. Lisa further alleged that Powers either intended to inflict the emotional distress upon her, or knew or should have known that the emotional distress and suffering incurred by her was the likely result of his conduct. Scott Wilderman alleged that as a result of Powers' conduct he suffered the loss of consortium of his spouse.

 

Powers admitted that he approached the plaintiffs' bathroom window on August, 5, 2004, attempted to photograph Lisa, and subsequently was arrested with a camera in his possession. He also admitted that police seized photographs, videotapes, computer equipment and a telescope from his residence. He denied the allegations that he negligently or intentionally caused Lisa to suffer emotional distress or related harm and denied that he caused the plaintiffs to incur any damages.

 

Powers filed a complaint against Cambridge Mutual Fire Insurance Company, asserting that he was an insured under an insurance policy issued by them. Additionally, Powers said that the Wildermans had commenced an action against him, alleging that he had violated their rights to privacy and had caused emotional distress and other damages. He asserted that he duly notified Cambridge of the incident and the action brought by the Wildermans, but that contrary to his rights under the policy, Cambridge had refused to defend the action, to reimburse him for counsel fees, to satisfy any judgment that may be rendered against him, or to assume any responsibility for the action. He sought damages related to this alleged violation of his rights under the policy.

 

Cambridge said that Powers was not entitled to coverage because his conduct fell within the expected or intended exclusion of coverage for bodily injury or property damage and within the exclusion of coverage for injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured.

 

Powers and Cambridge both filed motions for summary judgment. In support of his motion, Powers submitted his affidavit concerning the events in question as well as the insurance policy at issue. In support of its motion, Cambridge submitted the second amended complaint filed by the Wildermans, the insurance policy at issue, the arrest report concerning Powers, a transcript of proceedings in the trial at the time of Powers' sentencing for disorderly conduct, and excerpts from Powers' deposition testimony.

 

The trial court granted Cambridge's motion for summary judgment, noting that Powers claimed that coverage existed by virtue of an endorsement to Cambridge 's policy. The court concluded that coverage did not exist for three reasons. First, no genuine issue of material fact existed as to the fact that Powers engaged in intentional, rather than negligent, conduct and that the injuries claimed were the natural result of his conduct; thus, the exclusion for injury that is expected or intended by the insured applied. Second, the court concluded that although the endorsement extended coverage to bodily injury, which the endorsement defined to encompass invasion of privacy, the Wildermans' complaint did not allege invasion of privacy but other torts; accordingly, the court concluded, as a matter of law, that the complaint did not give rise to any of Cambridge 's duties under the policy. Finally, the court concluded that the exception in the policy for injuries caused by violation of penal laws or ordinances was applicable; therefore, there was no genuine issue of material fact as to whether Powers engaged in the conduct alleged and whether such conduct was criminal in nature.

 

Powers appealed, claiming that the court improperly relied on documents submitted by Cambridge in support of its motion for summary judgment. The appeals court stated that its review of the record revealed that at the summary judgment hearing, Powers did not object to the admissibility of the documentary evidence submitted by Cambridge . Powers' objection did not encompass a claim that the documentary evidence was inadmissible for the reasons now claimed on appeal. Rather, his objection was limited to the ground that Cambridge did not submit an affidavit in support of its motion.

 

Powers also claimed that the court improperly concluded that no genuine issue of material fact existed as to whether the injuries alleged by the plaintiffs were caused by criminal acts he committed. The court disagreed, noting that the insured had been arrested for committing the acts, had pleaded guilty to disorderly conduct as a result, and had admitted that he was criminally liable for all of the crimes for which he was arrested, not merely the disorderly conduct charge.

 

Therefore, the court affirmed the judgment of the trial court, concluding that the lower court properly rendered judgment in favor of Cambridge .