Russell Wentland et al. v. American Equity Insurance Company

The dispositive issue in this appeal is
whether the defendant insurer had a duty to defend
certain actions brought against its insureds alleging
injuries resulting from the insureds' service of alcohol,
where the insurance policy contained a clause excluding
claims for which the insureds may be liable by
reason of ‘‘causing or contributing to the intoxication
of any person . . . .'' The plaintiffs appeal1 from the
judgment of the trial court, granting the defendant's
motions for summary judgment and denying the plaintiffs'
cross motions for summary judgment. The plaintiffs
claim that the trial court improperly granted the
defendant's motions for summary judgment because
the underlying complaints did not allege that the injuries
resulted from ‘‘intoxication,'' but merely from the ‘‘consumption
of alcohol,'' thereby falling outside of the policy's
liquor liability exclusion. We reverse the judgment
of the trial court.

The plaintiffs, Kimberly Bleau, Amanda Kiszka, and
Russell Wentland, the administrator of the estate of the
decedent, Marci L. Wentland,2 who are assignees of the
insureds of the defendant, American Equity Insurance
Company, brought these consolidated actions against
the defendant for breach of its duty to defend and to
indemnify its insureds, and accordingly, for declaratory
judgments that the defendant had a duty to defend
and to indemnify. The defendant moved for summary
judgment, claiming that it had no duty to defend any
of the actions. The plaintiffs also moved for summary
judgment, claiming the contrary. The trial court granted
the defendant's motions, denied the plaintiffs' motions,
and rendered judgment for the defendant accordingly.

The procedural history of these cases is as follows.

The plaintiffs each brought a separate action, which
were later consolidated, against Seneco Corporation
and Antonio Senese3 (Seneco), for damages sustained
as a result of an automobile accident. The complaints
alleged, among other things, that Seneco negligently
had furnished alcohol to the driver of an automobile,
who was less than twenty-one years of age. Seneco
notified its insurer, the defendant, of the claim, but the
defendant refused to defend the action on the basis of
a liquor liability exclusion in Seneco's policy. Subsequently,
the parties stipulated to a judgment in favor
of the plaintiffs, whereby it was agreed that satisfaction
of that judgment would be sought against the defendant.
The plaintiffs then each commenced a separate
action, which were also later consolidated, against the
defendant, claiming that the defendant had breached
its duties to defend and to indemnify Seneco. The parties
filed cross motions for summary judgment; the
plaintiffs claimed that the defendant had breached its
duty to defend and, consequently, its duty to indemnify,
and the defendant claimed, to the contrary, that it had
no duty to defend the underlying actions. On the basis
of the liquor liability exclusion in Seneco's policy, the
trial court held that the defendant had no duty to defend.

Accordingly, the trial court granted the defendant's
motions, denied the plaintiffs' motions, and rendered
judgment for the defendant.

For the purposes of this appeal, the following facts,
as alleged in the plaintiffs' complaints, are undisputed.
On March 15, 1997, Bleau, Darlene Rodriguez and the
decedent, who were all less than twenty-one years of
age, went to a bar called ‘‘The Stadium'' in Bristol.

The Stadium, which was owned by Seneco, consisted
essentially of two areas: a regular bar area where adult
patrons could purchase alcoholic beverages; and a
‘‘juice bar'' for patrons less than twenty-one years of
age. In addition, The Stadium contained several common
areas, including a dance floor and a billiards room,
which were used by both adult and minor patrons.

Adults who intended to purchase alcoholic beverages
were required to wear paper wristbands to distinguish
them from minors.

While at The Stadium that evening, Rodriguez consumed
alcoholic beverages that had been provided to
her by adult patrons of the bar. Subsequently, as Rodriguez
was driving home during the early morning hours
of March 16, 1997, with Bleau and the decedent as
passengers, she lost control of her vehicle and collided
head-on with a vehicle operated by Kiszka. As a result
of the collision, Bleau, Kiszka and the decedent were
injured, with the decedent's injuries being fatal.

Bleau, Kiszka, and Wentland, as administrator of the
decedent's estate, each brought a separate action
against Seneco, claiming, among other things, that Seneco
was negligent because it had failed to prevent Rodriguez
from consuming alcohol.4 The complaints, which
were alike in all material respects, alleged that Rodriquez
had lost control of her vehicle as a result of her
‘‘consumption of alcohol'' at The Stadium.5

Following the commencement of the underlying
actions, Seneco forwarded copies of the complaints to
the defendant, requesting a defense under its commercial
general liability insurance coverage. Seneco's insurance
policy provided that the defendant ‘‘will pay those
sums that the insured becomes legally obligated to pay
as damages because of ‘bodily injury' or ‘property damage'
. . . [and] defend any ‘suit' seeking those damages.''

The defendant, however, refused to defend
Seneco because of a liquor liability exclusion in Seneco's
policy. That exclusion provided in relevant part:

‘‘This insurance does not apply to . . . ‘[b]odily injury'
or ‘property damage' for which any insured may be held
liable by reason of: (1) Causing or contributing to the
intoxication of any person; (2) The furnishing of alcoholic
beverages to a person under the legal drinking
age or under the influence of alcohol; or (3) Any statute,
ordinance or regulation relating to the sale, gift, distribution
or use of alcoholic beverages.''

Subsequently, the trial court, Shortall, J., approved
stipulated judgments in favor of the plaintiffs against
Seneco.6 The stipulations released all claims against
Seneco, providing that satisfaction of the judgments
would be sought only against the defendant. In addition,
Seneco assigned to the plaintiffs all the tort and contract
rights that it may have had against the defendant.

Following Seneco's declaration of bankruptcy, the
plaintiffs each brought a separate action against the
defendant, which subsequently were consolidated. The
matter was subsequently heard on cross motions for
summary judgment. The defendant argued that it had
no duty to defend because the alleged negligent acts
were not covered by Seneco's policy. According to the
defendant, the ‘‘unambiguous language'' of the policy's
liquor liability exclusion barred ‘‘coverage for incidents
related to Seneco's sale or service of alcohol.'' The
plaintiffs argued, to the contrary, that the allegations
in the complaints fell outside the exclusion, particularly
their claim that Seneco had failed to warn the minors of
the consequences of accepting alcohol. The trial court,
Berger, J., denied the plaintiffs' motions for summary
judgment, granted the defendant's motion for summary
judgment, and rendered judgment in favor of the defendant.

Additional facts will be presented as necessary.
On appeal to this court, the plaintiffs claim that the
trial court improperly granted the defendant's motion
for summary judgment because the allegations in the
complaints fell outside of the liquor liability exclusion.
Specifically, the plaintiffs argue that the language
‘‘[c]ausing or contributing to the intoxication of any
person,'' which was contained in the exclusion, encompasses
something more than merely being under the
influence of alcohol, and operates to preclude coverage
only if the injuries resulted from a person's ‘‘intoxication,''
not merely a person's ‘‘consumption of alcohol.''

In that regard, the plaintiffs contend, because the complaints
alleged that the plaintiffs' injuries resulted from
Rodriguez' ‘‘consumption of alcohol,'' as opposed to
her ‘‘intoxication,'' the language of the exclusion did
not operate to bar the duty to defend, and the defendant,
therefore, breached its duty to defend the insureds in
the present case.7 The defendant argues for a broader
reading of the exclusion, namely, that the exclusion
operates to preclude the duty to defend for any claims
related to the insureds' sale or service of alcohol. In
that regard, the defendant claims that it did not have a
duty to defend the insureds because all of the plaintiffs'
underlying claims were dependent upon the insureds'
sale or service of alcohol. We agree with the plaintiffs,
but we remand the case for consideration of other
issues discussed herein.

Construction of a policy of insurance presents a question
of law, over which our review is de novo. Security
Ins. Co. of Hartford v. Lumbermens Mutual Casualty
Co., 264 Conn. 688, 700–701, 826 A.2d 107 (2003). ‘‘It is
beyond dispute that an 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 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 [that] bring the injury within
the coverage.'' (Citation omitted; internal quotation
marks omitted.) Flint v. Universal Machine Co., 238
Conn. 637, 646, 679 A.2d 929 (1996). ‘‘If an allegation
of the complaint falls even possibly within the coverage,
then the [insurer] must defend the insured.'' (Internal
quotation marks omitted.) Moore v. Continental Casualty
Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000).

Accordingly, an insurer's duty to defend its insured is
triggered without regard to the merits of its duty to
indemnify. See, e.g., QSP, Inc. v. Aetna Casualty &
Surety Co., 256 Conn. 343, 352, 773 A.2d 906 (2001)
(insurer has duty to defend even if pleadings indicate
that claim may be meritless).

‘‘Although policy exclusions are strictly construed in
favor of the insured . . . the mere fact that the parties
advance different interpretations of the language in
question does not necessitate a conclusion that the
language is ambiguous.'' (Citation omitted; internal quotation
marks omitted.) Moore v. Continental Casualty
Co., supra, 252 Conn. 409. The interpretation of an insurance
policy is based on the intent of the parties, that
is, the coverage that the insured expected to receive
coupled with the coverage that the insurer expected to
provide, as expressed by the language of the entire
policy. QSP, Inc. v. Aetna Casualty&Surety Co., supra,
256 Conn. 351–52; Springdale Donuts, Inc. v. Aetna
Casualty & Surety Co. of Illinois, 247 Conn. 801, 805–
806, 724 A.2d 1117 (1999). The words of the policy
are given their natural and ordinary meaning, and any
ambiguity is resolved in favor of the insured. QSP, Inc.
v. Aetna Casualty & Surety Co., supra, 351–52; Springdale
Donuts, Inc. v. Aetna Casualty & Surety Co. of
Illinois, supra, 805–806.

Applying those principles to the facts of the present
case, and to the policy language at issue, we conclude
that: (1) the trial court determined that the part of
the liquor liability exclusion that precluded the duty to
defend was the language regarding the ‘‘intoxication of
any person''; (2) that language was not unambiguously
applicable to the pleadings of the injured parties in their
underlying complaints; and (3) therefore, the defendant
had a duty to defend against the injured parties' complaints
against its insureds. In this regard, it is not neces-
sary for us to decide definitively what the word
‘‘intoxication'' means as used in the policy. It suffices
to conclude, as we do, that the word is sufficiently
ambiguous that, when read in light of the injured parties'
complaints, the duty to defend was triggered.

We first turn to a brief discussion regarding the basis
of the trial court's decision in the present case. Relying
on cases that had interpreted similar liquor liability
exclusions, the trial court held that, ‘‘because the ‘allegations
of alcohol' are integral to and inseparable from
the allegations of negligence, the liquor liability exclusion
applies as a matter of law.'' Although the trial court
did not specifically state which provision formed the
basis of its ruling, it reasoned that ‘‘the allegations of
negligence are inseparable from the fact that Seneco
either caused or contributed to the intoxication of
Rodriguez.'' (Emphasis added.) In addition, the trial
court referenced the language ‘‘caus[ing] or contribut[-
ing] to the intoxication of Rodriguez''; (emphasis
added); four times in the concluding paragraph of its
memorandum of decision, but did not reference the
language from either subsections (2) or (3) of the liquor
liability exclusion.8 Thus, we read the trial court's decision
as resting on subsection (1) of the exclusion. Put
another way, because the trial court determined that
subsection (1) was sufficient to trigger the liquor liability
exclusion, it did not explicitly discuss the applicability
of subsections (2) or (3) of the exclusion in its
memorandum of decision. Moreover, that is primarily
how the parties have briefed and approached this
appeal. We ordinarily decide appeals on the basis in
which it was decided in the trial court, and briefed and
argued in this court. See, e.g., Burnham v. Karl & Gelb,
P.C., 252 Conn. 153, 170–71, 745 A.2d 178 (2000). Thus,
we confine our discussion herein to the applicability
of subsection (1) of the liquor liability exclusion, and
we express no opinion as to the applicability of subsections
(2) or (3).

The language of the policy concerning coverage in
the present case provided in relevant part that the defendant
‘‘will pay those sums that the insured becomes
legally obligated to pay as damages because of ‘bodily
injury' or ‘property damage' . . . [and] defend any ‘suit'
seeking those damages.'' The policy also contained a
liquor liability exclusion, which provided in relevant
part: ‘‘This insurance does not apply to . . . ‘[b]odily
injury' or ‘property damage' for which any insured may
be held liable by reason of: (1) Causing or contributing
to the intoxication of any person; (2) The furnishing of
alcoholic beverages to a person under the legal drinking
age or under the influence of alcohol; or (3) Any statute,
ordinance or regulation relating to the sale, gift, distribution
or use of alcoholic beverages.''

The critical dispute between the parties is whether,
under the facts alleged in the underlying complaints,
the liquor liability exclusion precluded the defendant's
duty to defend. In addition, the parties agree, at least
as it relates to the defendant's duty to defend, that
subsection (3) of the exclusion, which refers to ‘‘[a]ny
statute, ordinance or regulation relating to'' alcohol, is
not relevant to this appeal.

Subsection (1) of the exclusion operates to bar coverage
in circumstances in which an insured may be liable
by reason of its ‘‘[c]ausing or contributing to the intoxication
of any person . . . .'' The applicability of that
language to the present case rests on the meaning of
the term ‘‘intoxication.'' As the ensuing discussion indicates,
the word ‘‘intoxication'' has various meanings in
our law, depending on the context in which it is used.

The common thread of these meanings, however, is
that it does not necessarily mean being impaired by, or
under the influence of, alcohol to any degree.

In defining ‘‘intoxication,'' the parties focus on Sanders
v. Officers Club of Connecticut, Inc., 196 Conn. 341,
349, 493 A.2d 184 (1985), but they come to different
conclusions as to whether its definition triggers the
liquor liability exclusion in the present case. In Sanders,
we laid out the elements that a plaintiff was required
to prove in order to prevail under our Dram Shop Act;
General Statutes § 30-102; which permits a civil action
against a person who sells alcoholic liquor to an intoxicated
person. Sanders v. Officers Club of Connecticut,
Inc., supra, 349. In order to establish sufficiently that
a person was intoxicated under § 30-102, we stated: ‘‘To
be intoxicated is something more than to be merely
under the influence of, or affected to some extent by,
liquor. Intoxication means an abnormal mental or physical
condition due to the influence of intoxicating
liquors, a visible excitation of the passions and impairment
of the judgment, or a derangement or impairment
of physical functions and energies. When it is apparent
that a person is under the influence of liquor, when his
manner is unusual or abnormal and is reflected in his
walk or conversation, when his ordinary judgment or
common sense are disturbed or his usual will power
temporarily suspended, when these or similar symptoms
result from the use of liquor and are manifest, a
person may be found to be intoxicated. He need not
be ‘dead-drunk.' It is enough if by the use of intoxicating
liquor he is so affected in his acts or conduct that the
public or parties coming in contact with him can readily
see and know this is so.'' Id., 349–50. On the basis of
this definition of intoxication, and keeping in mind that
any ambiguity ought to be resolved in favor of the
insured, we conclude that the complaints in the present
case did not necessarily allege that the plaintiffs' injuries
were the result of Seneco's ‘‘[c]ausing or contributing
to the intoxication of any person . . . .'' (Emphasis
added.) Accordingly, subsection (1) of the liquor liability
exclusion did not relieve the defendant of its duty
to defend the insureds in the present case.

The first sentence of the definition in Sanders v.
Officers Club of Connecticut, Inc., supra, 196 Conn.
349, states that intoxication is ‘‘something more'' than
merely being affected by alcoholic liquor. This is a plain
indication that there may be levels of inebriation that
are less severe than intoxication. Indeed, common
sense dictates that one's behavior will be influenced to
differing degrees depending on what, and how much,
alcoholic liquor one had consumed. Similarly, alcoholic
liquor may tend to affect some persons differently than
it does others, depending on a number of factors, for
instance, a person's body weight, a person's tolerance
to alcohol, and what other food or beverages, if any, a
person has consumed within the same time frame. Thus,
under our definition in Sanders, it is possible to be
‘‘affected to some extent by'' alcoholic liquor, without
being ‘‘intoxicated.'' Id.

By the same token, in another context, we have interpreted
the Sanders formulation to imply that being
‘‘under the influence of intoxicating alcohol'' is something
less than being ‘‘intoxicated.'' State v. Lonergan,
213 Conn. 74, 92 n.11, 566 A.2d 677 (1989), cert. denied,
496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990),
overruled on other grounds, State v. Alvarez, 257 Conn.
782, 794, 778 A.2d 938 (2001). In Lonergan, the defendant
was charged with driving under the influence of
intoxicating liquor in violation of General Statutes § 14-
227a, and manslaughter in the second degree with a
motor vehicle in violation of General Statutes § 53a-
56b. Id., 76. At the time of the incident in question, in
order to convict a defendant under § 53a-56b, the state
was required to prove that the victim's death was the
result of the defendant's ‘‘ ‘intoxication' ''; id., 76–77 n.2;
whereas, under § 14-227a, the state was required to
prove merely that the defendant was ‘‘ ‘under the influence
of intoxicating liquor . . . .' '' Id., 76 n.1. In differentiating
between ‘‘under the influence of intoxicating
liquor'' and ‘‘intoxication,'' we reasoned that, although
‘‘it is possible to be under the influence of intoxicating
alcohol while not being intoxicated, it is impossible to
be intoxicated while not, at the same time, be[ing] under
the influence of alcohol.'' (Internal quotation marks
omitted.) Id., 92 n.11; Sanders v. Officers Club of Connecticut,
Inc., supra, 196 Conn. 349–50. Although § 53a-
56b no longer requires the state to prove that the defendant
had been ‘‘intoxicated,'' but only that he had been
‘‘under the influence of intoxicating liquor'';9 see Public
Acts 1985, No. 85-147, § 1; our reading of the Sanders
formulation in Lonergan reinforces the notion that
intoxication may be ‘‘something more'' than merely
being under the influence of alcoholic liquor. Sanders
v. Officers Club of Connecticut, Inc., supra, 349.

Also in the motor vehicle context, General Statutes
(Rev. to 1997) § 14-227a, which was in effect at the time
of the alleged negligent conduct in the present case,
differentiated between driving ‘‘under the influence of
intoxicating liquor''; General Statutes (Rev. to 1997)
§ 14-227a (a); and driving ‘‘while impaired.''10 General
Statutes (Rev. to 1997) § 14-227a (b). The offense of
driving ‘‘under the influence of intoxicating liquor''
required, among other things, that the offender be fined
not less than $500, be imprisoned not more than six
months, and have his or her driving privileges suspended
for one year; General Statutes (Rev. to 1997)
§ 14-227a (h) (1); whereas the offense of driving ‘‘while
impaired'' was only an infraction. General Statutes (Rev.
to 1997) § 14-227a (i). The legislature's recognition of
the offense of driving while impaired, which carried a
lesser penalty than did driving under the influence of
intoxicating liquor, further informs us that our law recognizes
lesser degrees of inebriation, some of which
may not properly be characterized as intoxication.

Having concluded that there may be lesser degrees
of inebriation that do not necessarily constitute ‘‘intoxication,''
at least as this court and our legislature have
defined the term, we turn to the plaintiffs' allegations
against Seneco in the present case. Bleau's complaint
stated: ‘‘Said consumption of alcoholic beverages by
Rodriguez at the . . . Stadium caused her driving ability
to become impaired.'' Kiszka's complaint stated:

‘‘Rodriguez' consumption of alcohol at The Stadium
caused her to be unable to properly control her vehicle
. . . .'' Finally, Wentland's complaint stated: ‘‘Rodriguez'
consumption of alcohol at The Stadium caused
her to be unable to control her vehicle . . . .'' Thus,
for all material purposes, the underlying complaints
against Seneco alleged that Rodriguez' consumption of
alcohol caused her to be unable to control her vehicle,
or caused her driving ability to become impaired.
The complaints did not allege that Rodriguez was
intoxicated, or that she displayed any behavior11 that
would establish, as a matter of law, that she was intoxicated.
Because the ‘‘allegation[s] of the complaint[s]
[fell] even possibly within the coverage''; (internal quotation
marks omitted) Moore v. Continental Casualty
Co., supra, 252 Conn. 409; the defendant had a duty to
defend the insureds, at least with regard to subsection
(1) of the liquor liability exclusion. The plaintiffs also
point out that the defendant had the means to insert a
broader liquor liability exclusion known as an ‘‘absolute
liquor'' exclusion, which states that ‘‘the policy does
not provide coverage for bodily injuries arising out of
or in connection with the manufacturing, selling, distributing,
serving, or furnishing of any alcoholic beverages.''
Bagley v. Monticello Ins. Co., Massachusetts Superior
Court, Docket No. 95296D (October 16, 1998); see also
Holmes v. Edison, Docket No. CIV 00-1707 LCS/KBMACE
(D.N.M. 2001) (policy provided that ‘‘[t]his insurance
does not apply to . . . [b]odily injury . . . for
which any insured . . . may be held liable as a result
of the consumption of any alcoholic beverages''); but
see Monticello Ins. v. Mike's Speedway Lounge, Inc.,
949 F. Sup. 694, 702 (S.D. Ind. 1996) (policy with ‘‘absolute
liquor'' exclusion provided ‘‘only illusory coverage''
under Indiana law).

The defendant argues that the plaintiffs' allegations
fall within our definition of intoxication in Sanders.
In that regard, the defendant points out that Sanders
defines intoxication in a number of ways, for instance,
‘‘an abnormal mental or physical condition due to the
influence of intoxicating liquors,'' or ‘‘a derangement
or impairment of physical functions and energies.''
Sanders v. Officers Club of Connecticut, Inc., supra,
196 Conn. 349. Accordingly, the defendant contends, the
allegations in the underlying complaints, which alleged
that Rodriguez' consumption of alcohol caused ‘‘ ‘her
to be unable to control her vehicle,' '' or ‘‘ ‘caused her
driving ability to become impaired,' '' are essentially
synonymous with, say, an ‘‘ ‘impairment of physical
functions and energies,' '' and, therefore, fall squarely
within the Sanders formulation. We disagree.

Although the definition of intoxication set forth in
Sanders goes on to provide examples that would be
sufficient to support a finding of intoxication, for
instance, ‘‘a derangement or impairment of physical
functions and energies''; id.; these differing examples
cannot not relieve the defendant of its duty to defend.
First, keeping in mind the context in which this court
decided Sanders, these examples do not inform what
constitutes intoxication as a matter of law; rather, they
merely provide illustrations of what will be sufficient
to support the factual finding that a purchaser of alcohol
was intoxicated for purposes of the Dram Shop Act. In
that regard, merely because a trier of fact ultimately
may conclude that the plaintiffs' injuries in the present
case were the result of Rodriguez' ‘‘intoxication,'' it
does not follow that the allegations in the complaint,
for instance, that ‘‘Rodriguez' consumption of alcohol
at The Stadium caused her to be unable to control her
vehicle,'' compel the conclusion that Rodriguez must
have been intoxicated as a matter of law. Because an
insurer's duty to defend is triggered without regard
to the likelihood that it ultimately may be required to
indemnify the insured, the examples in Sanders, setting
forth what may be sufficient to establish intoxication at
trial, cannot relieve the defendant of its duty to defend.12
Second, the additional definitions of intoxication in
Sanders reinforce the notion that intoxication is defined
in a number of ways. As previously discussed, intoxication
has been defined, in one way or another, in both
our statutes and case law. See, e.g., General Statutes
§ 53a-7; Sanders v. Officers Club of Connecticut, Inc.,
supra, 196 Conn. 349. In addition, ‘‘intoxication'' had
been defined as ‘‘the condition of being drunk,'' with
‘‘drunk'' meaning ‘‘having the faculties impaired by alcohol
. . . .'' Merriam-Webster's Collegiate Dictionary
(10th Ed. 1993). Intoxication also has been defined as
a ‘‘diminished ability to act with full mental and physical
capabilities because of alcohol or drug consumption;
drunkenness.'' Black's Law Dictionary (7th Ed. 1997).

All of these varying definitions, however helpful to
the defendant, merely show that intoxication is defined
in a number of ways in a number of contexts. Given
an insurer's broad duty to defend, and keeping in mind
that any ambiguity in the terms ought to be resolved
in favor of the insured; QSP, Inc. v. Aetna Casualty &
Surety Co., supra, 256 Conn. 352; these competing definitions
reinforce our conclusion that subsection (1) of
the liquor liability exclusion did not relieve the defendant
of its duty to defend the insureds in the present
case.

The defendant claims, nevertheless, that the liquor
liability exclusion bars all claims that are dependent
upon the sale or service of alcohol. Relying on cases
from other jurisdictions that have interpreted similar
exclusions; see, e.g., Frost v. David, 673 So. 2d 340, 344
(La. App. 1996); Kelly v. Painter, 202 W. Va. 344, 348,
504 S.E.2d 171 (1998); the defendant argues that all of
the plaintiffs' allegations are dependent upon the sale
or service of alcohol, and, therefore, are not covered
under the policy. We disagree.
Interpreting this exclusion to bar all claims dependent
upon the sale or service of alcohol expands its
reach beyond that which its explicit terms provide, and
would render superfluous the specific language of subsections
(2) and (3) of the liquor liability exclusion. In
addition, the cases from other jurisdictions on which
the defendant relies did not undertake the task of interpreting
the meaning of the term ‘‘intoxication.'' We
therefore decline to adopt such a broad reading of the
liquor liability exclusion in the present case.
Finally, the defendant argues, as an alternate ground
for affirmance, that subsection (2) of the exclusion,
which relates to ‘‘[t]he furnishing of alcoholic beverages
to a person under the legal drinking age,'' barred coverage
in the present case. Because the parties have not
adequately briefed this issue in this court, we decline
to consider this claim. We therefore express no opinion
as to the merits of that question, but instead leave it
for further exploration in the trial court should the
defendant choose to raise it.