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Springdale Donuts Inc. v. Aetna Casualty and Surety Co.3/2/1999
injury, i.e., mental anguish." The claims stated in the underlying complaints for mental anxiety and distress of mind clearly are claims based upon "mental injury." Consequently, those claims are within the penumbra of exclusion 3 (c). Therefore, the plaintiff's umbrella policy did not provide coverage for the underlying claims and, consequently, the defendants had no duty to defend the plaintiff under the umbrella policy.
The judgment is affirmed.
In this opinion BORDEN, NORCOTT and MCDONALD, Js., concurred.
BERDON, J., Dissenting. Although I disagree with much of the majority opinion, I will limit my Discussion to the majority's rejection of the plaintiff's claim that one of the defendant insurers was obligated to defend under a policy covering personal injuries "arising out of . . . ral . . . publication of material that slanders . . . a person . . . ral . . . publication of material that violates a person's right of privacy." The majority claims that that defendant had no duty to defend because the underlying complaints brought against the plaintiff did not properly allege publication of the relevant statements. This is simply wrong.
The majority acknowledges, as it must, that " he 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 complaint, stated facts which bring the injury within the coverage." (Emphasis added; internal quotation marks omitted.) Instead, it is the possibility of ultimate coverage that triggers the duty to defend. See West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990) (" f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured" [emphasis in original; internal quotation marks omitted]); West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986) (same); Schwartz v. Stevenson, 37 Conn. App. 581, 585, 657 A.2d 244 (1995) (same); see also Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 753 (2d Cir. 1949) (" hen . . . the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it" [emphasis added]); Schurgast v. Schumann, 156 Conn. 471, 489, 242 A.2d 695 (1968) ("whether [insurer] had a duty to defend the . . . action . . . depends on whether the complaint in that action stated facts which appear to bring . . . claim of damage within the policy coverage" [emphasis added]); Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967) (same).
It is therefore of no moment that neither of the underlying complaints brought against the plaintiff by two of its former employees expressly alleged the element of publication; a very high probability of publication is implicit in both pleadings. According to each of the underlying complaints, the "obscene, lewd and lascivious remarks requests" were sufficiently "frequent" and "repeated" that they "create a sexually harassing workplace." At a bare minimum, it is possible that at least some of these remarks and requests were made in the presence of third parties -- either fellow employees or patrons of the shop where the statements were made. As Judge Learned Hand put it (in an opinion from which we have recently quoted with approval ), "we should resolve the doubt in favor of the insured." Lee v. Aetna Casualty & Surety Co., supra, 178 F.2d 752.
In my view, the majority's procrustean reading of the underlying complaints allows the defendant insurer to escape its contractual obligation to defend.
Accordingly, I Dissent.
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