Unitrin Preferred Insurance v. Thomas Westlake, et al (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 118)

The plaintiff, Unitrin Preferred Insurance Company (Unitrin), brings this subrogation claim arising from its payment to its insured to losses the insured allegedly sustained as a result of a fire in a neighboring condominium unit.   Before the court is a motion for summary judgment filed by the defendants Thomas Westlake and Thelma Westlake (Westlakes), arguing that subrogation claims advanced by Unitrin are barred by a provision in the applicable condominium declaration disallowing such an action against an owner for injuries when the injured party has been compensated by insurance.   The court finds that the Westlakes have failed to support their argument in favor of summary judgment with sufficient admissible evidence.   Accordingly, the motion for summary judgment is denied.

I

FACTS

The plaintiff commenced the present action by service of process on October 3, 2008, against the defendant Novicky's Fireside, Inc. (Novicky), which is not a party to the present motion, and Thomas Westlake.   On March 16, 2009, the plaintiff amended its complaint and added a claim against Thelma Westlake.   This amended complaint is the operative complaint.   It contains three counts, all of which are nearly identical subrogation claims.¹

In the amended complaint, the plaintiff alleges the following facts:  On February 6, 2007, the plaintiff had an insurance policy with Russell Ayre (insured), who owned and lived in a condominium unit located at 9 Raccoon Ridge, Woodbury, Connecticut (9 Raccoon Ridge), which was part of Woodlake Condominiums.   That same day a fire started in a nearby condominium unit, 8 Raccoon Ridge, which was also part of Woodlake Condominiums.   Thelma Westlake was the owner of 8 Raccoon Ridge and Thomas Westlake resided there.   The fire spread to 9 Raccoon Ridge and destroyed that entire premises as well as all of its contents.   As a result, the plaintiff, under the terms of its policy, was obligated to pay compensation to the insured for his losses and became subrogated to his rights.   The negligence of each of the three defendants with respect to the installation of a fireplace at 8 Raccoon Ridge caused the fire to occur.   The plaintiff seeks money damages.

By way of special defense, the Westlakes allege that the plaintiff's claim is barred by the Woodlake Condominium Consolidation Agreement and Amended and Restated Declaration of Condominium (declaration).²  Specifically, they cite section 16.5 of the declaration, which provides:  “Each Owner shall be deemed to have released and exonerated each other Owner and the Association, and the Association shall be deemed to have released and exonerated each Owner, from any liability other than that based on fraud or criminal acts to the extent to which such liability is satisfied by proceeds of insurance carried by an Owner or by the Association.”

The Westlakes filed their joint motion for summary judgment on June 11, 2009, along with a joint memorandum of law.   The plaintiff filed an objection and a memorandum of law on August 6, 2009.   Thereafter, the parties filed multiple supplemental briefs.   The court heard oral argument on the motion on February 16, 2010.

II

DISCUSSIONAStandard for Summary Judgment

“The law governing summary judgment and the accompanying standard of review are well settled.   Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him [or her] to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his [or her] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․

“It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”  (Internal quotation marks omitted.)  Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94, 960 A.2d 1071 (2008).

The Westlakes have based their motion for summary judgment on their special defense.  “Summary judgment in favor of [a] defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”   (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).   Therefore, if there is no genuine issue of material fact as to the special defense and if such defense bars the plaintiff's claim as a matter of law, the Westlakes will be entitled to summary judgment.

B

Analysis

Legal or equitable subrogation is an equitable right available to an insurer to recover compensation from a tortfeasor for payments made to an insured on account of losses caused by the tortfeasor.  Wasko v. Manella, 269 Conn. 527, 532-33, 849 A.2d 777 (2004).  “[T]he right of [legal or equitable] subrogation is not a matter of contract;  it does not arise from any contractual relationship between the parties, but takes place as a matter of equity, with or without an agreement to that effect ․ The object of [legal or equitable] subrogation is the prevention of injustice.   It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it.”  Id., 532.

“A party advancing properly a claim of equitable subrogation is stepping into the shoes of the party it paid in order to recover the payments that it made ․” (Internal quotation marks omitted.)  Warning Lights & Scaffold Service, Inc. v. O & G Industries, Inc., 102 Conn.App. 267, 275, 925 A.2d 359 (2007).   Thus, “[an] insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses ․ In short, [a] subrogee can obtain no greater rights against a third person than its subrogor had.”  (Citation omitted;  internal quotation marks omitted.)   Wasko v. Manella, 87 Conn.App. 390, 397, 865 A.2d 1223 (2005).

It is undisputed that section 16.5 of the declaration provides:  “Each Owner shall be deemed to have released and exonerated each other Owner and the Association, and the Association shall be deemed to have released and exonerated each Owner, from any liability other than that based on fraud or criminal acts to the extent to which such liability is satisfied by proceeds of insurance carried by an Owner or by the Association.”  (Plaintiff's Memorandum of Law, pp. 4-5.)   If this section would forbid the insured from bringing a claim against the Westlakes, it would also forbid the plaintiff, as subrogee, from bringing the same claim.

The Westlakes argue that section 16.5 bars the plaintiff's claim.   They assert that the insured and the Westlakes are all “Owners” as contemplated by that section, and that the plaintiff, as insurer, already compensated the insured for his loss, which was due to negligence and not fraud or criminal acts.   Therefore, they conclude, the plaintiff's claim is barred because section 16.5 would bar the same claim if brought by the insured himself.

The plaintiff argues that section 16.5 of the declaration is inapplicable to its claim against Thomas Westlake because he transferred his ownership interest to Thelma Westlake by quitclaim deed and is thus not an “Owner” as contemplated by that section.   It also argues that such section is inapplicable to its claim against Thelma Westlake as well because her “liability” was not satisfied by the proceeds of insurance, as required, because the plaintiff did not pay compensation to the insured specifically on her behalf.   The plaintiff finally argues that, even if section 16.5 is applicable, it should be deemed to be void against public policy because it prospectively shields tortfeasors from responsibility for their negligent acts whenever injured parties are compensated by insurance.

The Westlakes' argument in favor of summary judgment is based on its interpretation of the language of the declaration itself.   A condominium declaration is a contract and is therefore subject to the normal rules of contract interpretation.  Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005).  “In ascertaining the contractual rights and obligations of the parties, [the court seeks] to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction ․ [The court accords] the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract ․ Where the language is unambiguous, [the court] must give the contract effect according to its terms.”  (Citations omitted.)  Id., 734-35.   Furthermore, it is fundamental that a “contract must be viewed in its entirety, with each provision read in light of the other provisions ․” (Internal quotation marks omitted.)  Id., 735.

Therefore, in order to determine the meaning and effect of section 16.5 and whether such language supports the Westlakes' special defense, the court must be able to consider the language of the entire declaration.   As the plaintiff correctly points out;  (Plaintiff's Memorandum of Law, p. 5);  however, the partial copy of the declaration the Westlakes attached to their memorandum of law as Exhibit A is uncertified.³  In fact, Exhibit A is not authenticated in any way.

“[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․” (Internal quotation marks omitted.)   Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).  “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Accordingly, Exhibit A cannot be considered in support of the Westlakes' motion.⁴

Without a complete and authenticated copy of the declaration, the court cannot, on the basis of the remaining evidence, determine the meaning and effect of section 16.5.   Therefore, the court cannot conclude that section 16.5 bars the plaintiff's claims as a matter of law.

III

CONCLUSION

For the above reasons, the court finds that the Westlakes have failed to demonstrate the absence of a genuine issue of material fact and that section 16.5 of the declaration bars the plaintiff's claims as a matter of law.   Therefore, the motion for summary judgment is denied.   It is so ordered.

GALLAGHER, J.

FOOTNOTES

FN1. There is also a cross claim pending, which was filed on February 6, 2009, wherein the Westlakes allege a claim for negligence against Novicky..  FN1. There is also a cross claim pending, which was filed on February 6, 2009, wherein the Westlakes allege a claim for negligence against Novicky.

FN2. Thomas Westlake asserted this special defense in his answer filed December 23, 2008.   Although he filed the answer prior to the filing of the amended complaint, it applies to the amended complaint pursuant to Practice Book § 10-61.   Thelma Westlake alleged this special defense in her answer filed July 1, 2009..  FN2. Thomas Westlake asserted this special defense in his answer filed December 23, 2008.   Although he filed the answer prior to the filing of the amended complaint, it applies to the amended complaint pursuant to Practice Book § 10-61.   Thelma Westlake alleged this special defense in her answer filed July 1, 2009.

FN3. In their memorandum of law, the Westlakes asserted that they would submit a complete and verified copy of the declaration to the court at oral argument.  (Westlakes' Memorandum of Law, p. 11 n.1.) Oral argument was heard on February 16, 2010, and the Westlakes failed to submit a complete copy on that day or any day thereafter..  FN3. In their memorandum of law, the Westlakes asserted that they would submit a complete and verified copy of the declaration to the court at oral argument.  (Westlakes' Memorandum of Law, p. 11 n.1.) Oral argument was heard on February 16, 2010, and the Westlakes failed to submit a complete copy on that day or any day thereafter.

FN4. Moreover, Exhibit A contains only pages 21 through 23 of the declaration, as well as the table of contents page.   According to the table of contents page, the declaration is more than twenty-six pages long.   Even if Exhibit A were properly authenticated, the court could not construe the language of section 16.5 based on the small portion of the declaration that was actually submitted.   The court would be especially hesitant to analyze section 16.5 in light of the absence of a copy of Article 1, which, according to the table of contents page, is entitled “Definitions.”   If any of the terms in section 16.5 have specified definitions, the court needs to be aware of them in order to construe that section accurately..  FN4. Moreover, Exhibit A contains only pages 21 through 23 of the declaration, as well as the table of contents page.   According to the table of contents page, the declaration is more than twenty-six pages long.   Even if Exhibit A were properly authenticated, the court could not construe the language of section 16.5 based on the small portion of the declaration that was actually submitted.   The court would be especially hesitant to analyze section 16.5 in light of the absence of a copy of Article 1, which, according to the table of contents page, is entitled “Definitions.”   If any of the terms in section 16.5 have specified definitions, the court needs to be aware of them in order to construe that section accurately.

Gallagher, Elizabeth A., J.