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COMMUNITY RENEWAL TEAM, INC. v. UNITED STATES LIABILITY INSURANCE COMPANY ET AL. (AC 31317)
Bishop, Beach and Borden, Js. Argued February 14--officially released April 19, 2011

(Appeal from Superior Court, judicial district of New Britain, Pittman, J.) Thomas R. Gerarde, with whom, on the brief, was Jeffrey E. Potter, for the appellant (substitute plaintiff). Kathleen Morrison Grover, with whom was P. Jo Anne Burgh, for the appellee (named defendant).

Opinion

BORDEN, J. This appeal involves a dispute between two insurance companies--the substitute plaintiff, Arrowood Indemnity Company (Arrowood), and the named defendant, United States Liability Insurance Company1--over the duty to defend under a liability insurance policy. The sole issue of the appeal is whether the trial court properly rendered summary judgment in favor of the defendant in relation to a liability insurance policy that it had issued to the named plaintiff, Community Renewal Team, Inc. (Community).2 The trial court ruled that the defendant had no duty to defend against a certain claim made against Community that Arrowood had paid. We affirm the judgment of the trial court. The procedural background is as follows. Michelle Roman, an employee of Community, brought an action against the city of Bristol in connection with certain injuries she sustained on July 2, 2003, during an event sponsored by Community at a certain Pine Lake Challenge Course operated by the city. The defendant had issued a liability policy to Community for certain coverage of the event. Community notified the defendant of Roman's claim, and the defendant declined to defend or to indemnify Community. Ultimately, Arrowood, the city's liability carrier; see footnote 2 of this opinion; settled Roman's claim for $700,000. Thereafter, Community brought this action against the defendant for breach of the defendant's obligations under its policy. Arrowood entered the action as a substitute plaintiff; see footnote 2 of this opinion; and filed an amended complaint against the defendant on a theory of equitable subrogation because it had paid the claim to Roman that, it alleged, the defendant should have paid. Arrowood filed a motion for summary judgment, claiming that the defendant had breached its duty to defend the Roman lawsuit. The defendant filed a cross motion for summary judgment, claiming that it had no duty to defend that lawsuit. The court granted the defendant's motion and denied Arrowood's motion, and rendered judgment in favor of the defendant. This appeal followed. The dispute between the parties revolves solely around an exclusion in the defendant's policy for participation in athletic activity. Specifically, the exclusion, titled ``Exclusion--Athletic Activity or Sports Participants,'' provides: ``This insurance does not apply to `bodily injury' to any person practicing, instructing or participating in any physical training, sport, athletic activity or contest whether on a formal or informal basis.'' (Emphasis added.) Arrowood claims that the trial court improperly concluded that the defendant had no duty to defend against Roman's lawsuit because the language of the exclusion is ambiguous and there was, therefore, a possibility of

coverage. We disagree. The parties agree, as do we, that our scope of review on the trial court's ruling on their cross motions for summary judgment is plenary. See Clinch v. GeneraliU.S. Branch, 110 Conn. App. 29, 34, 954 A.2d 223 (2008), aff'd, 293 Conn. 774, 980 A.2d 313 (2009). Furthermore, the law on an insurer's duty to defend is well settled. ``[A]n 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 [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. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. . . . Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. . . . On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend. . . . Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398

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Connecticut Law