Feb 8 2017

Connecticut Law Update (February 2017)

Homeowners Insurance – Intentional Act and Physical Abuse Exclusions

General Insurance Company of America v. Okeke, et al, Superior Court of Connecticut, 2016 WL 6395275. In this declaratory judgment action, the court ruled that coverage exclusions for intentional acts and physical abuse in the standard homeowners insurance policy precluded coverage for claims filed against a minor insured and his mother. A minor victim had filed suit against the minor insured for an assault, and including claims against the mother for intentional assault and infliction of emotional distress negligent assault and infliction of emotional distress. Citing past Connecticut appellate decisions, the court noted that the physical abuse exclusion does not require consideration of the abuser’s intent. In addition to the citing the coverage exclusions, the court held that the claims asserted against the minor insured did not give rise to an “occurrence” under the policy. The court ruled that the insurer had no duty to defend or indemnify the minor insured or the mother. Edward N. Storck III estorck@morrisonmahoney.com

Medical Malpractice – Expert Opinion Letter Requirement

Feingold v. Watermark/Alsa II, LLC, Superior Court of Connecticut, 2016 WL 4007568. In this medical malpractice action, the court ruled that an initial intake evaluation at nursing home constituted medical treatment and thus, the Plaintiff’s action was subject to complete dismissal for failing to attach an opinion letter from a medical expert to the Complaint. The Plaintiff alleged that she had suffered injuries from a slip and fall caused by the Defendants’ negligent conduct. The Defendants argued for dismissal on the grounds that the Complaint partially alleged medical malpractice, thus requiring an expert opinion letter pursuant to Connecticut law. Even though the Complaint largely sounded in ordinary negligence, the court found that because the initial admission assessment was required to be performed by a physician pursuant to Connecticut Department of Public Health regulations and specifically included a fall risk evaluation, the Complaint satisfied a three-prong test set forth by the Connecticut Supreme Court so as to constitute an allegation of medical malpractice. The Plaintiff’s Complaint was dismissed in its entirety for failing to attach a medical expert opinion letter commenting on the alleged medical. Kyle W. Deskus kdeskus@morrisonmahoney.com

Legal Malpractice – Expert Testimony Required To Establish Causation

Bozelko v. Papastavros, 323 Conn. 275 (2016). In this legal malpractice action, the Connecticut Supreme Court held that expert testimony was required to establish causation of the legal malpractice claim. In the underlying case, the Defendant had served as the Plaintiff’s defense counsel in a criminal jury trial, which resulted in Plaintiff’s conviction. The trial court in the legal malpractice action granted summary judgment for the Defendant due to the Plaintiff’s failure to disclose an expert witness. The Plaintiff unsuccessfully argued that expert testimony was unnecessary because her claims constituted allegations of gross negligence, a recognized exception to the general rule requiring expert testimony to establish the standard of care in a professional negligence action. The Connecticut Supreme Court ruled that expert testimony is still required as to causation because a determination of what result should have occurred if the attorney had not been negligent usually is beyond the field of ordinary knowledge and experience possessed by a juror. Even if the Defendant had done everything that the Plaintiff now claims she should have done differently over the course of the Plaintiff’s criminal trial, the State’s case might have been strong enough that the Plaintiff still would have been convicted. Kaelah Smith kmsmith@morrisonmahoney.com

Uninsured Motorist Insurance – Determination of Vehicle Occupancy

Puente v. Progressive Northwestern Insurance Co., Superior Court of Connecticut, 2016 WL 6237567. In this uninsured motorist coverage action, the court ruled that the Plaintiff was not “occupying” the covered vehicle within the meaning of the insurance policy. The Plaintiff had been struck by another vehicle immediately after exiting his own vehicle, but while the plaintiff was behind the vehicle and in the travel portion of a parking lot. Citing past Connecticut appellate decisions, the court found in favor of the insurer because the Plaintiff was not in physical contact with the covered vehicle. Connecticut law differs from other jurisdictions that apply a broader “use and proximity” test to determine whether a motorist is “occupying” a vehicle. Joseph R. Ciollo jciollo@morrisonmahoney.com

If you have any questions or would like copies of any of the cases noted above, please feel free to contact this month’s contributors or the editors. If you would like to subscribe to Morrison Mahoney's Connecticut Law Update, e-mail the editors: jmascaro@morrisonmahoney.com, rbystrowski@morrisonmahoney.com or jciollo@morrisonmahoney.com.

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