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MICHAEL KLING v. HARTFORD CASUALTY
INSURANCE COMPANY
(AC 44292)
Bright, C. J., and Cradle and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages from the defendant insurance com-
pany for, inter alia, breach of contract, claiming that the defendant had
a duty to defend C, doing business as E Co., under a business liability
insurance policy it had issued to C, and that its failure to do so left the
defendant liable to the plaintiff for damages the plaintiff suffered due
to C’s and E Co.’s negligence. The plaintiff sustained injuries when a
trailer that was attached to a pickup truck driven by C, transporting
large kettle corn equipment owned by E Co., dislodged from the pickup
truck and struck the plaintiff. After the incident occurred, the plaintiff
brought a personal injury action against C and E Co., seeking to recover
damages for his injuries. At the time of the incident, C was insured
under the business liability insurance policy issued by the defendant.
The defendant, however, declined to defend C, citing a provision that
excluded coverage for bodily injuries that arose out of the use of an
‘‘auto.’’ C did not appear or otherwise defend the personal injury action,
and the plaintiff obtained a default judgment against C and E Co. There-
after, the plaintiff brought the present action against the defendant
pursuant to the applicable statute (§ 38a-321). The defendant filed a
motion for summary judgment, arguing that, on the basis of a provision
in the policy that excluded coverage for injuries arising out of the
operation of an ‘‘auto,’’ it was entitled to a declaration that the policy
did not provide liability coverage for the injuries sustained by the plain-
tiff. While that motion was pending, the case proceeded to a bench trial
on the breach of contract count based on a stipulated record. The trial
court rendered judgment for the defendant on that count, finding that
the defendant did not have a duty to defend C or E Co. because the
policy’s auto exclusion applied and, thus, precluded coverage for the
plaintiff’s injuries. The trial court also dismissed the remaining two
counts of the plaintiff’s complaint, concluding that the plaintiff did not
have standing to bring either count in light of the court’s conclusion
that the plaintiff did not have privity of contract with the defendant and
there was no statutory or common-law basis to support the plaintiff’s
allegations under either count. On the plaintiff’s appeal to this court,
held that the trial court did not err in determining that the defendant
did not have a duty to defend C and E Co., that court having correctly
concluded that all of the injuries that the plaintiff sustained were
excluded from coverage under the provision in the business liability
insurance policy applicable to injuries arising out of the use of an auto:
the auto exclusion in C’s insurance policy plainly and unambiguously
precluded coverage for the plaintiff’s injuries as the injuries that he
sustained arose out of C’s act of driving his truck and trailer on public
roads and, therefore, arose out of the use of an auto; moreover, although
negligence unrelated to the use of an auto, namely, the claim that the
trailer and kettle corn equipment were disconnected from C’s truck due
to his failure to properly secure the trailer to the truck and/or his failure
to properly maintain the hitch on the truck to which the trailer was
attached, may have contributed to the plaintiff’s injuries, those injuries
nonetheless arose out of the use of an auto because the plaintiff would
not have been injured without C’s use of the truck and trailer.
Argued November 17, 2021—officially released April 12, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven, and tried
to the court, S. Richards, J., as to count one of the
complaint in accordance with the parties’ stipulation;
thereafter, the court, S. Richards, J., granted the defen-
dant’s motion to dismiss the remaining counts of the
complaint; judgment for the defendant, from which the
plaintiff appealed to this court. Affirmed.
Leann Riether, for the appellant (plaintiff).
Daniel J. Raccuia, for the appellee (defendant).
Opinion
BRIGHT, C. J. The plaintiff, Michael Kling, appeals
from the judgment of the trial court in favor of the
defendant, Hartford Casualty Insurance Company.1 On
appeal, the plaintiff claims that the court erred in con-
cluding that the defendant did not owe a duty to defend
its insured, Newton Carroll doing business as Elm City
Kettle Corn Company (Elm City), in connection with
injuries that the plaintiff suffered as a result of Carroll’s
and Elm City’s negligence. We affirm the judgment of
the trial court.
The following facts, which are undisputed, and proce-
dural history are relevant to our resolution of this
appeal. On the morning of July 13, 2012, the plaintiff
was walking north on the sidewalk along Orchard Street
in New Haven. At the same time, Carroll was driving a
pickup truck that was towing a trailer north on Orchard
Street. Attached to the inside of the trailer was equip-
ment that Carroll used to make kettle corn. As Carroll
was driving past where the plaintiff was walking, the
trailer detached from the truck, catapulted over a curb,
and struck the plaintiff, pinning him to the ground. The
plaintiff suffered several injuries including a fractured
right femur, a fractured right elbow, and meniscal tears
in his right knee.
In May, 2014, the plaintiff brought a personal injury
action against Carroll and Elm City, alleging that Car-
roll’s negligence in operating his truck and trailer—
specifically, Carroll’s failure to ensure that the trailer
was securely attached to the truck—had caused the
plaintiff ‘‘severe personal and painful injuries.’’ See
Kling v. Elm City Kettle Corn Co., LLC, Superior Court,
judicial district of New Haven, Docket No. CV-14-
6047194-S. At the time of the accident, Carroll and Elm
City were insured under a business liability policy that
had been issued by the defendant, which provided cov-
erage for ‘‘sums that the insured becomes legally obli-
gated to pay as damages because of ‘bodily injury
. . . .’ ’’ The policy also stated that the defendant had
‘‘the right and duty to defend the insured against any
‘suit’ seeking those damages.’’ The defendant declined
to defend Carroll, citing a provision in the policy that
excluded coverage for bodily injuries that arose out of
the use of an automobile. Carroll did not appear or
otherwise defend the personal injury action, and the
plaintiff obtained a default judgment against him and
Elm City for $495,843.57.
The plaintiff then filed this action against the defen-
dant pursuant to General Statutes § 38a-321,2 alleging
in the operative complaint breach of contract (count
one), breach of the implied covenant of good faith and
fair dealing (count two), and negligent infliction of emo-
tional distress (count three). The underlying premise
of the plaintiff’s claims was that the defendant had a
duty to defend Carroll and Elm City under the business
liability policy and that its failure to do so left the
defendant liable to the plaintiff for the damages he
suffered due to Carroll’s and Elm City’s negligence. In
its answer to the plaintiff’s complaint, the defendant,
inter alia, alleged in its second special defense that the
plaintiff’s claims were barred by the language of the
business liability policy, in particular the language that
excludes coverage for injuries resulting from the opera-
tion of an ‘‘auto.’’
The defendant then moved for summary judgment
on all three counts based on the alleged auto exclusion.
The court denied the defendant’s motion for summary
judgment after finding that the language of the insur-
ance policy was ambiguous. The defendant then filed
a motion to dismiss counts two and three on the basis
that the plaintiff lacked standing to assert those claims
because § 38a-321 only permits a direct action by a
plaintiff for breach of contract. While that motion was
pending, the case proceeded to a bench trial on count
one based on a stipulated record. In count one, the
plaintiff specifically alleged that the defendant had
breached its contract of insurance when it failed to
defend Carroll and Elm City in the plaintiff’s personal
injury action.
Thereafter, the court issued its memorandum of deci-
sion, wherein it rendered judgment for the defendant
on count one, after finding that the defendant had no
duty to defend Carroll and Elm City because the policy’s
auto exclusion applied, thus precluding coverage for
the plaintiff’s injuries. The court also dismissed counts
two and three of the plaintiff’s complaint after conclud-
ing that the plaintiff did not have standing to bring
either count in light of the court’s conclusion that the
plaintiff did not have privity of contract with the defen-
dant and that there was no statutory or common-law
basis to support the plaintiff’s allegations under either
count. The plaintiff then filed a motion to reargue/recon-
sider, which the court denied. This appeal followed,
challenging both the judgment rendered after the trial
on count one and the dismissal of counts two and three.
Additional facts will be set forth as necessary.
The parties agree, as do we, that if the court’s contrac-
tual analysis regarding the duty to defend is correct
then the plaintiff cannot succeed on any of his three
counts. Consequently, we address that issue first. We
begin by setting forth the applicable standard of review
and principles of law that guide our analysis. Our stan-
dard of review for interpreting insurance policies is
well settled. ‘‘The construction of an insurance policy
presents a question of law that we review de novo.’’
Warzecha v. USAA Casualty Ins. Co., 206 Conn. App.
188, 191, 259 A.3d 1251 (2021). When construing an
insurance policy, ‘‘we look at the [policy] as a whole,
consider all relevant portions together and, if possible,
give operative effect to every provision in order to reach
a reasonable overall result.’’ (Internal quotation marks
omitted.) Israel v. State Farm Mutual Automobile Ins.
Co., 259 Conn. 503, 509, 789 A.2d 974 (2002). ‘‘Insurance
policies are interpreted based on the same rules that
govern the interpretation of contracts. . . . In accor-
dance with those rules, [t]he determinative question is
the intent of the parties . . . . If the terms of the policy
are clear and unambiguous, then the language, from
which the intention of the parties is to be deduced,
must be accorded its natural and ordinary meaning.
. . . In determining whether the terms of an insurance
policy are clear and unambiguous, [a] court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms. . . . As with
contracts generally, a provision in an insurance policy
is ambiguous when it is reasonably susceptible to more
than one reading. . . . Under those circumstances, any
ambiguity in the terms of an insurance policy must be
construed in favor of the insured . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Warzecha v.
USAA Casualty Ins. Co., supra, 191–92.
An insurer’s duty to defend ‘‘is determined by refer-
ence to the allegations contained in the [underlying]
complaint.’’ (Internal quotation marks omitted.)
DaCruz v. State Farm Fire & Casualty Co., 268 Conn.
675, 687, 846 A.2d 849 (2004). The duty to defend ‘‘does
not depend on whether the injured party will success-
fully maintain a cause of action against the insured but
on whether [the complaint] stated facts which bring the
injury within the coverage.’’ (Internal quotation marks
omitted.) Security Ins. Co. of Hartford v. Lumbermens
Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107
(2003). ‘‘If an allegation of the complaint falls even
possibly within the coverage, then the insurance com-
pany must defend the insured.’’ (Internal quotation
marks omitted.) Moore v. Continental Casualty Co.,
252 Conn. 405, 409, 746 A.2d 1252 (2000). That being
said, an insurer ‘‘has a duty to defend only if the underly-
ing complaint reasonably alleges an injury that is cov-
ered by the policy.’’ (Emphasis in original.) Misiti, LLC
v. Travelers Property Casualty Co. of America, 308
Conn. 146, 156, 61 A.3d 485 (2013). ‘‘[W]e will not predi-
cate the duty to defend on a reading of the complaint
that is . . . conceivable but tortured and unreason-
able.’’ (Internal quotation marks omitted.) Id. There is
also no duty to defend ‘‘if the complaint alleges a liability
which the policy does not cover . . . .’’ (Internal quota-
tion marks omitted.) Id.
The plaintiff claims that the defendant has a duty to
defend because (1) the policy language is ambiguous
and, thus, must be construed in favor of providing cover-
age and (2) the allegations in the plaintiff’s complaint
have a clear possibility of falling within the coverage
provided under the policy.3 On the basis of our review
of the policy language and the plaintiff’s complaint, we
are not persuaded.
We begin with the relevant language of the plaintiff’s
complaint in the personal injury action on which he
relies for his claim of coverage:
‘‘2. On [July 13, 2012, at approximately 9:25 a.m.,
Carroll] was the operator of a 2012 Dodge truck . . .
which vehicle was towing a trailer with large kettle
corn equipment affixed . . . and was traveling north
on Orchard Street . . . .
‘‘4. [W]hile said vehicle was being operated by [Car-
roll], said trailer with large kettle corn equipment
owned by [Elm City] dislodged from the truck, cata-
pulted over the curb striking the plaintiff and pinning
the plaintiff thereby causing the plaintiff severe per-
sonal and painful injuries as hereinafter more particu-
larly set forth. . . .
‘‘6. Said collision of debris and the resulting injuries,
damages, and losses to the plaintiff were caused by the
carelessness and negligence of [Carroll doing business
as Elm City] in one or more of the following ways . . .
‘‘c. in that he secured the truck camp trailer improp-
erly to prevent equipment to fall on the roadway, posing
a risk to the plaintiff . . . .
‘‘f. in that the fastening equipment on the trailer hitch
was in a broken condition and the defendant failed to
inspect the trailer to observe the broken and loose
condition of the trailer hitch; [and]
‘‘g. in that [Carroll] failed to adequately secure a safety
chain to secure the trailer in the event that the hitch/
fastening equipment became dislodged.’’
The plaintiff argues that these allegations fall within
the coverage of the business liability insurance policy
issued by the defendant which provides liability cover-
age, including a legal defense, for any lawsuits seeking
damages ‘‘because of ‘bodily injury’ . . . to which this
insurance applies.’’ The defendant agrees that there
would be coverage for the plaintiff’s injuries if it were
not for the policy’s exclusions, principally the auto
exclusion. Under that exclusion, the policy does not
provide coverage or a duty to defend for ‘‘ ‘bodily injury’
. . . arising out of the ownership, maintenance, use
or entrustment to others of any . . . auto . . . owned
or operated by . . . any insured.’’ (Emphasis added.)
‘‘Auto’’ is defined under the policy as ‘‘a land motor
vehicle, trailer or semi-trailer designed for travel on
public roads, including any attached machinery or
equipment.’’
The defendant argues that the language of the exclu-
sion is plain and unambiguous as applied to the plain-
tiff’s claim. In particular, it argues that there is no ques-
tion that the plaintiff’s injuries, as alleged, arose out of
Carroll’s operation of an auto owned by Elm City. The
defendant further argues that the definition of auto in
the exclusion includes not only the truck Carroll was
driving, but also the trailer attached thereto and the
kettle corn equipment attached to the trailer. Conse-
quently, the defendant argues that the claim clearly is
excluded from coverage, and that the defendant owed
no duty to defend Carroll and Elm City in the personal
injury action.
Connecticut courts have had previous occasions to
interpret the phrase ‘‘arising out of,’’ as the phrase is
used in auto exclusions in insurance policies and consis-
tently have held that the phrase broadly applies to pre-
clude coverage for claims whenever a plaintiff’s injuries
are related—even slightly—to the use of an automobile.
See New London County Mutual Ins. Co. v. Nantes,
303 Conn. 737, 753–54, 36 A.3d 224 (2012); Hogle v.
Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975).
For example, in Hogle, our Supreme Court concluded
that a homeowners insurance policy did not provide
coverage for injuries that a passenger in a car sustained
when the driver’s dog jumped from the rear seat into
the front seat, causing the driver to crash the car and
injure the passenger. Hogle v. Hogle, supra, 167 Conn.
578–79. The policy in Hogle included an auto exclusion,
which stated that ‘‘coverage does not apply to the opera-
tion . . . of . . . automobiles . . . while away from’’
the insured’s home. (Internal quotation marks omitted.)
Id., 576. In interpreting that exclusion, the court broadly
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 the 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.’’ (Internal quota-
tion marks omitted.) Id., 577. Accordingly, because the
driver’s use of a car was in some way connected ‘‘with
the accident or the creation of a condition that caused
the accident,’’ there was no coverage for the passenger’s
injuries under the auto exclusion, and the insurer thus
did not have a duty to defend. Id., 578.
Similarly, in Nantes, our Supreme Court determined
that a homeowners insurance policy did not provide
coverage for injuries that houseguests suffered from
carbon monoxide poisoning that was caused by the
homeowner leaving her car running overnight in an
attached garage. New London County Mutual Ins. Co.
v. Nantes, supra, 303 Conn. 759. That policy also con-
tained an auto exclusion, which stated that coverage
‘‘do[es] not apply to bodily injury or property damage
. . . [a]rising out of . . . [t]he . . . use . . . of
motor vehicles . . . .’’ (Internal quotation marks omit-
ted.) Id., 741. On the basis of this exclusion, and the
court’s earlier holding in Hogle, the court in Nantes
likewise concluded that, because the guests’ injuries
‘‘had [their] origins in, grew out of, flowed from, or
[were] incident to’’ the homeowner’s use of a car, the
insurer had no duty to defend. (Internal quotation marks
omitted.) Id., 759.
As alleged in the underlying complaint, the plaintiff’s
injuries resulted from Carroll’s operation of a truck and
trailer on the public roads of New Haven. Specifically,
the plaintiff was injured when the trailer transporting
the attached kettle corn equipment detached from the
truck and struck him. The auto exclusion in the insur-
ance policy issued by the defendant unambiguously
precludes coverage for injuries that arise out of the
use of an auto. The policy also unambiguously defines
‘‘auto’’ to include ‘‘land motor vehicles’’ (such as
trucks), trailers, and any equipment that is attached to
said trailers. Under the plain language of the policy, it
is indisputable that the plaintiff’s injuries arose out of
the use of an auto: but for Carroll’s use of a truck,
an auto, to transport a trailer containing kettle corn
equipment, a second auto, the plaintiff never would
have been struck by the trailer and, consequently, would
not have been injured. Therefore, those injuries are
connected with, have their origins in, grew out of,
flowed from, or were incident to Carroll’s use of two
autos. See Hogle v. Hogle, supra, 167 Conn. 577. As
such, because the plaintiff’s injuries were related to,
and thus arose out of, Carroll’s use of an auto, there is no
coverage for those injuries under the insurance policy.
Given our conclusion that the auto exclusion clearly
precludes coverage for the plaintiff’s injuries, we neces-
sarily reject the plaintiff’s claim that the language of
the policy is ambiguous. The plaintiff claims that both
factual and legal uncertainty exist with regard to
whether the defendant has a duty to defend, and that
such uncertainty is enough to make the policy ambigu-
ous. In Nash Street, LLC v. Main Street America Assur-
ance Co., 337 Conn. 1, 10–11, 251 A.3d 600 (2020), our
Supreme Court explained how factual and/or legal
uncertainty can create ambiguity in an insurance policy
and thus give rise to a duty to defend: ‘‘Factual uncer-
tainty arises when it is unclear from the face of the
complaint whether an alleged injury occurred in a man-
ner that is covered by the policy. . . . Legal uncertainty
arises when it is unclear how a court might interpret
the policy language at issue, and, as a result, it is unclear
whether the alleged injury falls within coverage.’’ (Cita-
tions omitted.)
The plaintiff argues that there is factual uncertainty
because the complaint in the personal injury action
included allegations that the trailer and kettle corn
equipment became disconnected from Carroll’s truck
due to his failure to properly secure the trailer to the
truck and/or due to his failure to properly maintain the
hitch on the truck to which the trailer was attached.
Thus, according to the plaintiff, his injuries were due
to Carroll’s negligence before he ever began operating
the truck to which the trailer was attached and, thus,
did not arise out of the use of an auto. He argues that,
at the very least, the allegations of his personal injury
complaint raised the possibility of coverage and, there-
fore, triggered the defendant’s duty to defend. We are
not persuaded.
We initially note that the word ‘‘maintenance’’ is never
used in the plaintiff’s complaint and that the plaintiff
conceded as much at oral argument before this court.
In addition, the auto exclusion applies not only to bodily
injuries arising out of the operation of an auto, but also
to those arising out of the ownership, maintenance, and
use of an auto. The exclusion defines ‘‘use’’ as including
‘‘ ‘loading or unloading.’ ’’ Thus, even construing the
allegations of the plaintiff’s personal injury complaint
as alleging negligence in how Carroll and Elm City main-
tained the truck or trailer or how they connected the
two, the claims are excluded from coverage by the plain
language of the policy.
Finally, as noted previously in this opinion, our
Supreme Court consistently has interpreted the ‘‘arising
out of’’ language in auto exclusions very broadly. In
both Hogle and Nantes, our Supreme Court concluded
that the auto exclusions in both insurance policies pre-
cluded coverage for the plaintiff’s injuries even though
the underlying complaints in both cases alleged acts of
negligence that occurred independently of the insured’s
use of an automobile. See Hogle v. Hogle, supra, 167
Conn. 578 (‘‘Aetna’s obligation to pay the judgment ren-
dered . . . does not depend on whether it was [the
driver’s] negligent operation of the car, or the activities
of his dog inside the car, which constituted the ‘proxi-
mate cause’ of the accident . . . . Such obligation,
rather, depends in this case on another fact, namely
whether [the driver’s] ‘use’ of his car was connected
with the accident or the creation of a condition that
caused the accident.’’); see also New London County
Mutual Ins. Co. v. Nantes, supra, 303 Conn. 758 (‘‘[I]t is
irrelevant that an arguably covered event—[the host’s]
closing of the garage door—was a contributing cause
of [the guests’] injuries. . . . [T]he fact that [the host’s]
use of her motor vehicle was connected to or created
a condition that caused [the guests’] injuries is enough
to bring [the injuries] within the motor vehicle exclu-
sion.’’).
In the present case, as in those two cases, although
negligence unrelated to the use of an auto may have
contributed to the plaintiff’s injuries, those injuries
nonetheless arose out of the use of an auto because,
again, the plaintiff would not have been injured without
Carroll’s use of two autos: his truck and trailer. Conse-
quently, the role that those autos played in injuring
the plaintiff is enough to exclude those injuries from
coverage under the policy, regardless of any other non-
auto related acts of negligence that may have also con-
tributed to the plaintiff’s injuries. Whatever the specific
cause for the dislodging of the trailer from Carroll’s
truck, there is no question that the plaintiff’s complaint
in the personal injury action alleged that his injuries
arose out of the operation of an auto, the definition of
which includes both the truck and the trailer with its
attached equipment. Consequently, there is no factual
uncertainty as to how the plaintiff’s injuries were
alleged to have occurred.
As to legal uncertainty, the plaintiff argues that the
definition of auto in the policy, to which the auto exclu-
sion applies, states that ‘‘ ‘auto’ does not include ‘mobile
equipment.’ ’’ He argues that, because the kettle corn
equipment that was affixed to the trailer is mobile equip-
ment, there is legal uncertainty as to whether the auto
exclusion applies to injuries caused by any of the kettle
corn equipment that may have struck the plaintiff.4
There are a number of problems with the plaintiff’s
argument. First, the policy has a definition of ‘‘mobile
equipment,’’ which is limited to a specific list of ‘‘land
vehicles.’’ The kettle corn equipment at issue does not
fall under any of the vehicles listed in the mobile equip-
ment definition.
Second, it is clear from the policy language that the
kettle corn equipment attached to the trailer also meets
the definition of auto under the policy’s exclusions. The
insurance policy defines ‘‘auto’’ as including trailers
that are ‘‘designed for travel on public roads, including
any attached machinery or equipment.’’ (Emphasis
added.) The trailer and attached equipment here cer-
tainly fall within that definition of ‘‘auto,’’ meaning that
the auto exclusion applies to bar coverage for any injur-
ies that arose out of the use of that trailer and equip-
ment.
Finally, the plaintiff’s complaint did not allege that
his injuries arose out of the operation of the kettle corn
equipment. The complaint alleged that the plaintiff’s
injuries arose during the transportation of the kettle
corn equipment. The policy explicitly excludes from
coverage bodily injury arising out of ‘‘[t]he transporta-
tion of ‘mobile equipment’ by an ‘auto’ owned or oper-
ated by or rented or loaned to any insured . . . .’’ Thus,
even if the kettle corn equipment was considered
mobile equipment under the policy, the exclusion of
coverage for the transportation of mobile equipment
clearly would apply. Consequently, there is no legal
uncertainty that the defendant had no duty to defend
Carroll and Elm City.
Nevertheless, the plaintiff contends that the policy
language is ambiguous because the various exceptions
in the policy ‘‘essentially foreclose all liability coverage’’
and that such a result cannot be what the parties
intended. We are not persuaded. Even though the insur-
ance policy does not provide coverage for the injuries
alleged in the present case, the policy still provides
valuable coverage. For example, the policy certainly
would provide coverage if, while Carroll was making
and selling kettle corn on the sidewalk, a vat of hot oil
spilled and caused injury to a patron or a passerby.
Thus, just because the policy does not cover the plain-
tiff’s injuries in the present case does not mean that
the policy provides no coverage in other situations.
We also reject the plaintiff’s argument that the law
of the case doctrine compels us to conclude that the
policy language was ambiguous. According to the plain-
tiff, because the trial court found the policy language
ambiguous when it denied the defendant’s motion for
summary judgment, it could not conclude otherwise at
trial, and we too should conclude that such ambiguity
exists. This assertion, however, ignores the fact that
appellate courts review a lower court’s interpretation
of an insurance policy de novo. Warzecha v. USAA
Casualty Ins. Co., supra, 206 Conn. App. 191. As such,
we are not bound by the trial court’s findings or by the
law of the case that was made during the proceedings
at trial. Danehy v. Danehy, 118 Conn. App. 29, 33 n.5, 982
A.2d 273 (2009) (law of case ‘‘cannot bind an appellate
court, whose function is to determine whether the trial
court correctly applied the law’’). Thus, our conclusion
that the policy’s auto exclusion unambiguously pre-
cludes coverage for the plaintiff’s injuries is unaffected
by the trial court’s prior conclusion that the policy was
ambiguous.5 See id.
In sum, given our Supreme Court’s broad interpreta-
tion of the phrase ‘‘arising out of’’ in both Hogle and
Nantes, we conclude that the auto exclusion in the
business liability policy at issue here plainly and unam-
biguously precludes coverage for the plaintiff’s injur-
ies.6 Accordingly, the defendant did not have a duty to
defend Carroll and Elm City in the personal injury
action.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff named ‘‘The Hartford’’ as the defendant on the
summons, the plaintiff identified the defendant in the complaint as ‘‘Hartford
Casualty Insurance Company,’’ which is the defendant’s correct name.
2
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 or death or damage to
property, 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.’’
3
For the sake of clarity and ease of discussion, we have reordered the
arguments as they are set forth in the plaintiff’s brief.
4
The plaintiff’s fourth amended complaint does not explicitly allege that
he was struck by the kettle corn equipment. Instead, it alleges that while
Carroll was driving his truck the ‘‘trailer with large kettle corn equipment
. . . dislodged from the truck, catapulted over the curb striking the plaintiff
and pinning the plaintiff thereby causing the plaintiff severe personal and
painful injuries . . . .’’ This allegation suggests that the plaintiff was struck
by the trailer and not separately by the kettle corn equipment. Nevertheless,
in considering the plaintiff’s ‘‘mobile equipment’’ argument, we will construe
the allegation broadly as encompassing the possibility that the plaintiff was
struck by the kettle corn equipment.
5
We also note that, given the trial court’s eventual holding that the defen-
dant did not owe a duty to defend, the court itself appears to have rejected
its earlier conclusion that the policy language was ambiguous, which it was
permitted to do. See Knoblaugh v. Marshall, 64 Conn. App. 32, 37, 779 A.2d
218 (‘‘A judge should hesitate to change his own rulings in a case . . . .
Nevertheless, if the case comes before him regularly and he becomes con-
vinced that the view of the law previously applied . . . was clearly errone-
ous and would work a manifest injustice if followed, he may apply his own
judgment.’’ (Internal quotation marks omitted.)), cert. denied, 258 Conn.
916, 782 A.2d 1243 (2001).
6
In his reply brief, the plaintiff attempts to distinguish Nantes and Hogle
by arguing that both cases involved homeowners policies and that this case
involves a business liability policy. The plaintiff does not explain why the
type of policy matters to the analysis and we conclude that it does not. The
same contract interpretation principles apply regardless of the underlying
coverage provided by the policy. Consequently, our Supreme Court’s reason-
ing in those cases is equally applicable in the present case, despite the
difference in the type of policy.
7
Given our conclusion regarding count one, and because the plaintiff
conceded at oral argument before this court that if he loses on count one,
he also loses on counts two and three, we further conclude that the defendant
was entitled to judgment in its favor as to counts two and three.
The plaintiff also claims on appeal that the court erred when it denied
his motion to reargue/reconsider. Because our conclusion that the defendant
did not have a duty to defend is dispositive of the claims raised in the
motion to reargue/reconsider, we need not address this argument.