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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 company 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. Thereafter, 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 plaintiff. 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 defendant’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 concluding 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 procedural 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 equipment 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 Carroll’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 coverage for ‘‘sums that the insured becomes legally obligated 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 defendant 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 emotional 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 operation 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 insurance 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 decision, 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 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 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/reconsider, 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 contractual 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 standard 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 accordance 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 omitted; internal quotation marks omitted.) Warzecha v.

USAA Casualty Ins. Co., supra, 191–92.

An insurer’s duty to defend ‘‘is determined by reference 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 successfully 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 company 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 underlying complaint reasonably alleges an injury that is covered 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 predicate the duty to defend on a reading of the complaint

that is . . . conceivable but tortured and unreasonable.’’ (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 quotation 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 coverage 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 [Carroll], said trailer with large kettle corn equipment

owned by [Elm City] dislodged from the truck, catapulted over the curb striking the plaintiff and pinning

the plaintiff thereby causing the plaintiff severe personal and painful injuries as hereinafter more particularly 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 improperly 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 coverage, 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 exclusion is plain and unambiguous as applied to the plaintiff’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. Consequently, 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 consistently have held that the phrase broadly applies to preclude 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 operation . . . 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 quotation 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 contained 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 omitted.) 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 insurance 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 necessarily 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 ambiguous. In Nash Street, LLC v. Main Street America Assurance 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 uncertainty arises when it is unclear from the face of the

complaint whether an alleged injury occurred in a manner 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.’’ (Citations 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, therefore, 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 maintained 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 precluded 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 rendered . . . 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 ‘proximate 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 exclusion.’’).

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. Consequently, 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 nonauto related acts of negligence that may have also contributed 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 exclusion 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 equipment, 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 equipment 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 certainly fall within that definition of ‘‘auto,’’ meaning that

the auto exclusion applies to bar coverage for any injuries that arose out of the use of that trailer and equipment.

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 transportation of ‘mobile equipment’ by an ‘auto’ owned or operated 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 insurance 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 plaintiff’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 plaintiff, 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 precludes 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 interpretation 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 unambiguously precludes coverage for the plaintiff’s injuries.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 defendant 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 convinced that the view of the law previously applied . . . was clearly erroneous 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 reasoning 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.