Hartford Fire Insurance Company v. Scott Warner et al (2010)

MEMORANDUM OF DECISION

The instant matter is before the court on a writ of audita querela.   The writ “was devised ․ to be used after the controversy (querela -quarrel) has been determined (audita -heard).”  2 E. Stephenson, Connecticut Civil Procedure (3d Ed.2002) § 201, p. 440.  “It occasionally happens that subsequent to judgment matters arise which make execution [of the judgment] inequitable.”  Id., 439.  “The ancient writ of audita querela has been defined as a ‘writ issued to afford a remedy to a defendant against whom a judgment had been rendered, but who had new matters in defense ․ arising, or at least raisable for the first time, after judgment.”  Ames v. Sears, Roebuck & Co., 206 Conn. 16, 20 (1988).

“ ‘Audita querela is a remedy granted in favor of one against whom execution has issued on a judgment, the enforcement of which would be contrary to justice because of (1) matters arising subsequent to its rendition, or (2) prior existing defenses that were not available to the judgment debtor in the original action, or (3) the judgment creditor's fraudulent conduct or circumstances over which the judgment debtor had no control.’  Oakland Heights Mobile Park, Inc. v. Simon, 40 Conn.App. 30, 32, 668 A.2d 737 (1995).   ‘The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which would cause discharge of a judgment debtor ․ A writ of audita querela depends upon a showing of new matter in defense ․ arising, or at least raisable for the first time, after judgment ․ Its use is most common in summary process judgments.’  (Citation omitted;  internal quotation marks omitted.)   First National Bank of Chicago, Trustee v. Jansson, Superior Court, Housing Session, judicial district of Fairfield, Docket No. SPBR 95 0830174 (July 21, 1996, Tierney, J.).  ‘Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense ․ that he had the opportunity to raise before the entry of judgment against him ․ No authority suggest[s] that the writ of audita querela was ever available to present issues which were presented before the entry of the judgment attacked by the writ.’  (Citation omitted;  internal quotation marks omitted.)  Ames v. Sears, Roebuck & Co., supra, 206 Conn. 20.”   National Mortgage Corp. v. Doe, Superior Court, judicial district of Tolland, Docket No. CV 04 0083714 (July 24, 2006, Peck, J.).

“Audita querela is an extraordinary remedy arising in equity to prevent the unconscionable use of a lawful judgment because of matters arising subsequent to the judgment.   Westfarms Associates v. Kathy-John's Inc., [Superior Court, judicial district of New Britain, Docket No. SPH 85 1130901 [ (March 17, 1986, Goldstein, J.) ] ․” (Citation omitted.)   Lee v. Connor, Superior Court, judicial district of Waterbury, Docket No. SPWA 89 0507283 (October 18, 1990, Vertefeuille, J.) [2 Conn. L. Rptr. 716].

The plaintiff, Hartford Fire Insurance Company, originally brought this subrogation action to recoup the $47,101 that it paid out on a claim by its insured, landlord Dana Taylor, on June 24, 2002.   Judgment in this case first entered in favor of the defendants in 2003.  Hartford Fire Ins. Co. v. Warner, Superior Court, judicial district of Windham at Putnam, Docket No. CV 02 0068363 (December 18, 2003, Cosgrove, J.) [36 Conn. L. Rptr. 215] (Warner I ).   The trial court found the following facts:  “On December 5, 2000, the defendant Linda Warner occupied # 2 North Walnut Street, Wauregan, Connecticut pursuant to the terms of a lease with Dana Taylor.   At that time, the landlord was covered by a fire insurance policy by the plaintiff, Hartford Insurance Company.   The policy granted the plaintiff subrogation rights from its insured.   On December 5, 2000, a fire occurred on the leased premises.   The fire was accidental in nature and was caused by the conduct of defendant Scott Warner, a nephew of Linda Warner ¹ .  As a result of the fire, the plaintiff paid Dana Taylor the property damages in the amount of $43,951 and for loss of rental income in the amount of $3,150.”   In rendering judgment in favor of the defendants, the trial court reasoned that, pursuant to DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002) (DiLullo ), in order for subrogation to apply, there must be an express agreement between the tenant and landlord.   Id. The court found there was no specific agreement that the plaintiff would have a right of subrogation against the defendant Linda Warner.  Id.

The Appellate Court reversed the trial court in Hartford Fire Ins. Co. v. Warner, 91 Conn.App. 685, 881 A.2d 1065, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005) (Warner II ), finding that the lease provision regarding liability was broad enough to alert the defendants that they would be responsible for paying back the insurer.   Ms. Warner's petition to the Supreme Court was denied.  Hartford Fire Ins. Co. v. Warner, 276 Conn. 919, 888 A.2d 88 (2005).   The plaintiff was then granted its motion for judgment after remand, and for order of weekly payments against Ms. Warner.   She had no insurance.   The payments were ordered in the amount of $35 per week on December 9, 2008, to commence on January 6, 2009.

On December 11, 2008, Ms. Warner filed her application for a writ of audita querela ² that the judgment for the plaintiff entered after remand should be reversed on the basis of Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 901 A.2d 1 (2006) (Vaszil II ).   It is the Vaszil II decision, issued after the Appellate Court's reversal in Warner II of the trial court decision, that forms the basis for Ms. Warner's claim for extraordinary relief by way of the writ of audita querela.

The plaintiff filed its objection to Ms. Warner's application on December 15, 2008, arguing that the facts of Vaszil II are distinguishable from the present case, and that Warner II is still the appropriate law to apply to this case.   The matter was heard on the short calendar on March 1, 2010.

A review of the leading cases addressing subrogation in the context of a lease agreement is required to rule on Ms. Warner's motion.   The bright line rule in DiLullo, upon which the trial court initially rendered judgment in favor of the defendants, is that “in the absence of an express agreement between the parties covering the question, there is no right of subrogation on the part of a landlord's fire insurer against a tenant of the landlord's premises.”   DiLullo v. Joseph, supra, 259 Conn. 850-51.   The court in DiLullo used as the basis for its decision an economic waste reasoning, stating that “[o]ur decision is founded, in large part, upon the principle that subrogation, as an equitable doctrine, invokes matters of policy and fairness ․ One such policy implicated by the issue presently before us is that disfavoring economic waste ․ This strong public policy convinces us that it would be inappropriate to create a default rule that allocates to the tenant the responsibility of maintaining sufficient insurance to cover a claim for subrogation by his landlord's insurer.   Such a rule would create a strong incentive for every tenant to carry liability insurance in an amount necessary to compensate for the value, or perhaps even the replacement cost, of the entire building, irrespective of the portion of the building occupied by the tenant.   That is precisely the same value or replacement cost insured by the landlord under his fire insurance policy.   Thus, although the two forms of insurance would be different, the economic interest insured would be the same.   This duplication of insurance would, in our view, constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants.”  (Citations omitted.)  Id., 853-54.

The court in DiLullo found that “[t]here was no agreement between the parties, either in the lease or otherwise, that the defendant would insure the premises for fire or other casualty, although Michael DiLullo [the landlord] requested the defendant to carry liability insurance on his business contents and, at the time of the entering of the lease, the defendant provided the DiLullos with evidence of such insurance.   The defendant and the DiLullos never discussed the possibility that they would provide insurance coverage for each other, and there was no agreement that the DiLullos would relieve the defendant of liability arising from his own negligence.”  DiLullo v. Joseph, supra, 259 Conn. 849.

In DiLullo, the lease in question had expired, and the loss occurred during a period of time when the parties were engaged in a month-to-month tenancy with no lease provisions in place regarding insurance or subrogation.  DiLullo v. Joseph, supra, 259 Conn. 849.   The court adopted the rationale of Judge Keeton and Professor Widiss that “in most instances, neither landlords nor tenants ordinarily expect that the landlord's insurer would be proceeding against the tenant, unless expert counseling to that effect had forewarned them.”  Id., 853-55.   As Justice Borden clearly stated, “the dispositive issue in this appeal is whether, in the absence of a specific agreement covering the question, a fire insurer of leased premises has a right of subrogation against a tenant for negligently causing a fire.   We conclude that no right of subrogation exists and, accordingly, we affirm the judgment of the trial court.”  Id., 848.

In his memorandum of decision in this case (Warner I ), Judge Cosgrove relied upon the “bright line” test espoused in DiLullo that in the absence of an express agreement between the parties covering the question, there is no right of subrogation on the part of the landlord's fire insurer against a tenant of the landlords.

In Warner I, Ms. Warner entered into a written lease for a portion of the duplex premises with the plaintiff's insured, Dana Taylor.   The lease contained a standard form provision:  “Landlord is not liable for loss, expense or damage to any person or property unless it is due to landlord's negligence.   Tenant must pay for damages suffered and money spent by landlord relating to any claim arising from any act or neglect of the Tenant.   Tenant is responsible for all acts of Tenant's family, employees, guests and invitees.”  Hartford Fire Ins. Co. v. Warner, 91 Conn.App. 685, 686-87 (2005).   There was no express provision in the lease requiring the tenant to obtain insurance or warning her regarding subrogation.   The Appellate Court, in examining the issues, relied on the “expectations of the parties” that equitable subrogation would apply.   Id., 692.   It found that, “by the terms of the lease, it was plainly within the contemplation of the defendant that she would be liable for damages caused by her acts and those of her guests.”  Id., 693.

The court in Warner II also relied on Wasko v. Manella, 269 Conn. 527, 849 A.2d 777 (2004) (Wasko ), a case in which the Supreme Court refused to extend the holding in DiLullo to a social houseguest, “finding, instead, that a right of subrogation exists when a social houseguest negligently causes a fire that damages a host's insured property.”  Hartford Fire Ins. Co. v. Warner, supra, 91 Conn.App. 690-91.   While it is clear that Wasko's rationale would apply to Scott Warner as a social houseguest, it would not apply to Ms. Warner as a tenant.   This distinction was clearly and succinctly made by Justice Berdon in his dissent in Warner II. Id., 694-98.

It is of some interest to note that two months prior to the decision in Warner II being published, the Appellate Court issued its decision in Middlesex Mutual Assurance Co. v. Vaszil, 89 Conn.App. 482 (2005), on June 7, 2005 (Vaszil I ).

In Vaszil I, the defendant, Brian Vaszil, was a student at the University of Connecticut.  Middlesex Mutual Assurance Co. v. Vaszil, supra, 89 Conn.App. 484.   He occupied one unit of an apartment building at Hunting Heights (Hunting) in Storrs, pursuant to a written lease with the owners, Hunting Lodge Partners, LLC. Id. Robert Vaszil, Brian's father, co-signed the lease as a guarantor.  Id. On December 8, 2001, the apartment building was damaged in a fire caused by Brian Vaszil's negligence.  Id., 485.   This action was filed by the insurer who had paid for the damages which occurred as against Brian and Robert Vaszil.  Id. “The lease between Hunting and the defendants required that the tenant not damage the apartment, repair any damage prior to leaving the building and reimburse Hunting for any amount expended to fix damage.   The lease did not contain the word subrogation or a specific provision stating that Hunting's insurer had a right of subrogation.”  Id., 484-85.   The trial court entered summary judgment in favor of the defendants as the lease failed to create an express agreement between the parties that the tenant agreed to assume the obligation of insurance and subrogation.  Id., 485.   The plaintiff appealed, and the Appellate Court explained that “[t]he right of subrogation exists when the language of the lease clearly notifies the tenant of his liability for damage he causes” and DiLullo did not “require language specifically indicating the right of subrogation” in the lease.   Id., 488.   The court went on to rely on principles of equitable subrogation.   The court distinguished DiLullo and relied upon Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 371, 672 A.2d 939 (1996), that “the goal of equitable subrogation is to avoid injustice by requiring payment from the party that occasioned the harm.”  Id., 490.  Vaszil I cited to Warner I in a footnote listing a number of Superior Court cases that, in its opinion, erroneously held that DiLullo requires language specifically indicating the right of subrogation.  Id., 488.  Warner II, however, did not mention Vaszil I, which was released three months prior.   While the plaintiff here points to the fact that Warner II was not reversed by the Supreme Court, its holding is on all fours with Vaszil I, which was reversed by the Supreme Court Vaszil II. This court, therefore, will rely on Vaszil II which has reaffirmed the prior decision and rule from DiLullo, requiring that an express provision be set forth in the lease obligating the tenant to be the landlord's insurer.   Equitable subrogation will not provide a viable substitute theory of liability.

The Vaszil II court examined specific lease provisions, finding that the “provisions and the reasonable inferences drawn there-from are far from an express agreement between the landlord and tenant that the landlord's insurer has a right to subrogation for losses paid to its insured and, indeed, they compel a contrary conclusion.”  Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 39.

The court first examined the following lease provision:  “8. DAMAGE TO APARTMENT.   You will not have to pay rent for any time that your use and enjoyment of the [a]partment is substantially affected because the [a]partment or the building is damaged by fire or other casualty.   However, you will pay rent if you caused the damage or destruction or if you continue to occupy any portion of the [a]partment.   Your rent shall be reduced by the decrease in the fair rental value of the [a]partment.   If any part of the [a]partment or building is damaged by fire or other casualty, we shall have the right to cancel this lease ․” Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 31.   The court determined that “although the lease informs the defendants that they may not damage any part of the apartment and that they will be responsible for rent in the event they damage the apartment ․ these terms suggest that, if a tenant causes any such damage, then he or she would be liable to pay only the party to whom rent is owed, namely, the landlord, and would be liable only for rent and nothing else.”  (Emphasis added.)  Id., 38.

Additionally, the court examined the following two provisions:  “11.   REMOVAL OF PROPERTY.   When this lease ends, you will leave the [a]partment and remove all your property and the property of others and leave the [a]partment in good and clean condition and repair any damage caused by yourself or others ․ 16.   SECURITY DEPOSIT ․ If you are in default under this lease, we may use the security deposit to pay the rent or other money you owe us under this lease ․” Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 31-32.   The court found that, “although the lease gave notice to a tenant of his or her duty to repair damage to the apartment and that, in case of a tenant's default, the landlord reserved the right to keep the security deposit to pay for rent or other money owed under the lease, these provisions strongly suggest that a tenant's liability would be limited to the amount of his or her security deposit.”  (Emphasis added.)  Id., 38.

The court also examined the lease's default provision, which stated:  “If you do not do any of the things you promise to do under this lease, you will pay us the amount that we pay to do the things that you did not do ․” Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 32.   The court found that this provision, “when read in conjunction with the sole insurance provision implying that the landlord has procured insurance, suggests that the landlord will not have to ‘pay’ anything should a tenant cause damage to the property in derogation of the lease ․ Accordingly, the plaintiff's reliance on these various disparate provisions or any combination thereof to create an express agreement allowing the right to subrogation by the landlord's insurer fails.”   Id., 38-39.

The court in Vaszil II found that, altogether, “[t]he lease ․ does not remotely inform the defendants that they would be liable to their landlord's insurer for any casualty fire damages to the landlord's building.   It informs them neither of the need to insure only their apartment, nor of the need to obtain insurance in an amount sufficient to cover the value of the entire multiunit apartment building.   Rather, the only mention of insurance in the lease is the provision prohibiting tenants from bringing anything into their apartment that would cause the landlord's insurance rates to increase.   This provision, however, implies that the landlord has procured casualty and property insurance and, by operation of the principle inclusio unius est exclusio alterius, suggests that only the landlord is expected to carry insurance.   Therefore, the lease in the present case not only fails to put a tenant on notice that the landlord's insurer has a right of subrogation for any loss benefits paid, it also neglects to put a tenant on notice that he or she should obtain insurance coverage for a catastrophic loss, in other words, a loss extending beyond the tenant's individual apartment.”  Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 37-38.

Ms. Warner argues that Vaszil II clarified DiLullo by stating that unless the lease specifically warns the tenant of the possibility of subrogation, then there is no subrogation, and the facts of Vaszil II and the present case are similar.   Therefore, it would be inequitable and contrary to law, as decided in DiLullo and clarified in Vaszil II, to enforce the judgment previously rendered in this case.   She maintains that Warner II's reasoning is incorrect and should be overruled.   The plaintiff disagrees, arguing that the lease provision put Ms. Warner on notice that she would be responsible for any damage caused by her or her houseguests, which includes her nephew, the defendant Scott Warner, and that the facts of the present case and Vaszil II are distinguishable.

The lease provision in the present case is markedly different from the provisions in Vaszil II Again, it provides:  “Liability.   Landlord is not liable for a loss, expense or damage to any person or property unless it is due to Landlord's negligence.   Tenant must pay for damages suffered and money spent by Landlord relating to any claims arising from any act or neglect of Tenant.   Tenant is responsible for all acts of Tenant's family, employees, guests and invitees.”  Hartford Fire Ins. Co. v. Warner, supra, 91 Conn.App. 686-87.   As the plaintiff argues, the lease provision in Vaszil II did not alert the tenant that he would have to pay anything beyond the amount of his security deposit in the event of damage to the apartment.   It is quite the opposite case here-Ms.   Warner, the tenant, is put on notice that she will be responsible for her negligent actions unless the landlord is found to be negligent.   She is also alerted that such responsibility will take the form of payment for damages suffered, implying that such damages are not confined to a security deposit.   However, the language “pay for damages suffered and money spent by Landlord” suggests that it is only the out-of-pocket payments made by her landlord for which Ms. Warner would be responsible if negligent.   So if the landlord was forced to make payments as a result of Ms. Warner's negligent actions or the actions of her guests, either because the landlord did not have insurance or because the landlord's claim was denied, only then would Ms. Warner have to pay.   A subrogation claim by an insurance company, however, is one to recoup losses as a result of payments made by the insurer.³  Nowhere in the provision, however, does the word “insurer” appear, and the provision fails to specifically inform Ms. Warner that she would have to pay an insurer under any circumstances.   The lease stops short of telling Ms. Warner to whom, other than the landlord, she could be liable for damages.   While the provision does not rule out the possibility that she might need to purchase sufficient insurance coverage to protect herself in the case of negligence, it fails to specifically inform her of that need.   Furthermore, as the court in Vaszil II stated, “the lease in the present case does not contain the word subrogation or any other express language indicating that the plaintiff, as the landlord's insurer, had the right to proceed against the defendants for damage negligently caused to [the landord's] property.”  Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 36.

At the very least, the lease provision is ambiguous on the issue of subrogation.   As the court in Vaszil II explained, ambiguity is not enough to deem the agreement express for purposes of subrogation.   The court cited to the DiLullo dissent, “drawing on our well established principles of contract interpretation;  see Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998) (contract is ambiguous if agreement on its face is reasonably susceptible of more than one interpretation);  Rund v. Melillo, 63 Conn.App. 216, 220, 772 A.2d 774 (2001) (“[c]ontract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion” [internal quotation marks omitted] );  Judge Dranginis, in her dissent, then pointed to various provisions in the lease demonstrating such ambiguity.”  Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 36-37.   While the lease provision here is certainly more specific than the provisions in Vaszil II, and potentially could be construed as broad enough to cover a claim for subrogation, the provision is susceptible of more than one interpretation.

The court in Vaszil II provided further reasoning that lends support for a conclusion that the lease provision in the present case is not specific enough to allow for reimbursement through subrogation.   The court stated that “[i]n DiLullo v. Joseph ․ we embraced the leading case for the proposition that there is no right of subrogation against a tenant by a landlord's insurer in the absence of a specific agreement to the contrary ․ The possibility that a lessor's insurer may proceed against a lessee almost certainly is not within the expectations of most landlords and tenants unless they have been forewarned by expert counseling.   When lease provisions are either silent or ambiguous in this regard-and especially when a lessor's insurance policy is also silent or ambiguous-courts should adopt a rule against allowing the lessor's insurer to proceed against the tenant ․ DiLullo v. Joseph, supra, [259 Conn.] 852.”   (Citations omitted;  internal quotation marks omitted.)  Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 37-38.   It should be noted that the insurance policy between the plaintiff and the landlord in this case contains the following unambiguous provision addressing subrogation:  “10.   Subrogation.  You may waive in writing before a loss of all rights of recovery against any person.   If not waived, we may require an assignment of rights of recovery for a loss to the extent that payment is made by us.   If an assignment is sought, the person insured shall sign and deliver all related papers and cooperate with us in any reasonable manner.”  Hartford Fire his.  Co. v. Warner, supra, 91 Conn.App. 687.   Nevertheless, the lease itself still fails to address subrogation so as to properly notify Ms. Warner of her potential liability.

The plaintiff argues that there is no limitation in the lease language of what Ms. Warner would be responsible for, and that the Appellate Court in Warner II found that the lease provision put her on notice, and common sense guided her that she would be responsible for damage caused by her guests.   As discussed above, the court in Warner II addressed the issue of the reasonable expectation of landlords and tenants, upon which it hinged its decision.   The court relied on the Supreme Court's reasoning in Wasko, stating that “social houseguests ‘do not proceed with the same lack of expectations regarding personal responsibility for negligent conduct as do tenants.”  Hartford Fire Ins. Co. v. Warner, supra, 91 Conn.App. 692.  “Put another way, we believe that most social guests fully expect to be held liable for their negligent conduct in another's home-whether that conduct constitutes breaking the television, causing physical injury, or burning the house down.   Unlike tenants, social guests have not signed a contract with the host, they have not paid the host any set amount of money for rent, and, accordingly, they do not have the same expectations regarding insurance coverage for the property as do tenants.   In sum, the equitable concerns that led this court to preclude subrogation in the context of landlord and tenant simply are not present in the context of houseguest and host.’  Wasko v. Manella, supra, 269 Conn. 547.   While at first blush this language would appear to support the defendant's position because the defendant is a tenant, it would appear the proper focus should be on the expectations of the parties and not on their particular relationship.   Here, the agreement between the parties belies any claim by the defendant that she did not expect to be held accountable for her negligent acts or those of her houseguest ․ Thus, by the terms of the lease it was plainly within the contemplation of the defendant that she would be liable for damages caused by her acts and those of her guests.”  Id., 692-93.

However, Warner II's analogy to a social guest in Wasko, while not without merit, and clearly the law before Vaszil II came down, does not fall in line with Vaszil II's clarification.  Vaszil II makes it clear that the focus is not to be, as the court in Warner II reasoned, on the expectation of the parties alone, but also on the actual language of the agreement.   So while Ms. Warner may have expected to be liable for the actions of her nephew, the defendant Scott Warner, it cannot be said that the lease informs her to expect that she could be liable for anything other than the landlord's out-of-pocket payments.

The plaintiff further argues that the present case also differs from Vaszil II in that concerns of economic waste are not present here, specifically, that “the idea of procuring insurance that will cover a number of other properties is just not a concern in this particular set of facts.”   The court in DiLullo focused on the duplication of insurance, stating that it would “constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants.”  DiLullo v. Joseph, supra, 259 Conn. 854.   The court in Warner II found that “unlike DiLullo, the public policy against economic waste is not reasonably implicated.   Rather, in this instance, the court was faced with a duplex residence, not a multitenant building.   At most, the realization of a right of subrogation may cause the existence of two insurance policies on the same property, admittedly an overlap but not palpably wasteful as in DiLullo.”  Hartford Ins. Co. v. Warner, supra, 91 Conn.App. 691-92.   The court in Vaszil II did not specifically address the issue of two residential units versus multiple residential units.   And while it is true that the economic waste is less pronounced than in the case of a multiple-unit building, there is still economic waste present in the case of a duplex building, because there is more than one unit.   This fact, combined with Vaszil II 's requirement of a specific agreement between the landlord and tenant, militates toward a finding that the plaintiff here has no right of subrogation.   It would appear that in any landlord-tenant agreement that the price of the landlord's insurance coverage is factored into the rent which is charged.   In this case, the facts reveal that there was no insurance procured by Ms. Warner, and therefore, economic waste is not present.

While the Supreme Court in Vaszil II does not specifically overrule Warner II by name, it does so by its language and reasoning by reiterating DiLullo, and by requiring specific language in the lease agreement stating that the insurer had the right to proceed against the tenant to recoup damages it may have paid out as a result of the tenant's negligence.   As in Vaszil II, the liability provision in the present case does not create “an express agreement between the landlord and the tenant that the landlord's insurer has a right to subrogation for losses paid to its insured ․” Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 39.

The plaintiff argues in the alternative that Ms. Warner waited over two years to contest the plaintiff's judgment, and this inaction amounts to laches.

“Laches is an equitable defense that consists of two elements.   First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ․ The mere lapse of time does not constitute laches ․ unless it results in prejudice to the defendant ․ as where, for example, the defendant is led to change his position with respect to the matter in question.”  (Internal quotation marks omitted.)  Cifaldi v. Cifaldi, 118 Conn.App. 325, 334-35, 983 A.2d 293 (2009).  “A determination that a plaintiff has been guilty of laches is one of fact for the trier ․” (Internal quotation marks omitted.)  Riscica v. Riscica, 101 Conn.App. 199, 208, 921 A.2d 633 (2007).  “The burden is on the party alleging laches to establish that defense.”  (Internal quotation marks omitted.)  Jarvis v. Lieder, 117 Conn.App. 129, 149, 978 A.2d 106 (2009).

“Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period ․ It is an equitable defense allowed at the discretion of the trial court in cases brought in equity.”  (Emphasis in original internal quotation marks omitted.)  Florian v. Lenge, 91 Conn.App. 268, 282, 880 A.2d 895 (2005).

The plaintiff cannot be said to have suffered prejudice merely by the passage of time and by Ms. Warner's waiting over two years to contest the plaintiff's judgment in this matter, and, therefore, the doctrine of laches will not bar Ms. Warner's application.

While all of the cases cited discuss economic waste, public policy and the interplay of lease agreements and insurance policies, the fact of the matter is that Ms. Warner had no insurance and under Warner II, she is in the unenviable position of having a judgment against her for $47,101, payable via order of $35 per week.   Certainly “economic waste” is not a factor here.   The requirements for a writ of audita querela have been met.   The enforcement of this judgment would be contrary to justice in light of the Supreme Court holding in Vaszil II, which arose subsequent to the rendition of the holding in Warner II. I believe that the rules of stare decisis require me to GRANT the defendant Linda Warner's motion for a writ of audita querela and to VACATE the judgment entered against her in this case.   The judgment stands, however, as to the defendant Scott Warner.   See also Allstate Ins. Co. v. Palumbo, 109 Conn.App. 731, 952 A.2d 1235 (2008), regarding the liability of a social guest.

SO ORDERED.

THE COURT,

Riley, J.

FOOTNOTES

FN1. Scott Warner was not a lessee under the lease and has never appeared in this matter.   His status would appear to be that of a social guest.   He was defaulted for failure to appear.   The judgment sought to be vacated here is as to Linda Warner only..  FN1. Scott Warner was not a lessee under the lease and has never appeared in this matter.   His status would appear to be that of a social guest.   He was defaulted for failure to appear.   The judgment sought to be vacated here is as to Linda Warner only.

FN2. Ms Warner files this motion without defendant Scott Warner..  FN2. Ms Warner files this motion without defendant Scott Warner.

FN3. “In its simplest form, subrogation allows a party who has paid a debt to step into the shoes of another ․, to assume his or her legal rights against a third party to prevent that party's unjust enrichment ․ In that way, an insurance company, for example, can be substituted for the insured in an action against a third party tortfeasor.   The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer.   The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim.”  (Citation omitted;  internal quotation marks omitted.)  Wasko v. Manella, 74 Conn.App. 32, 35-36, 811 A.2d 727 (2002), rev'd, 269 Conn. 527, 849 A.2d 777 (2004)..  FN3. “In its simplest form, subrogation allows a party who has paid a debt to step into the shoes of another ․, to assume his or her legal rights against a third party to prevent that party's unjust enrichment ․ In that way, an insurance company, for example, can be substituted for the insured in an action against a third party tortfeasor.   The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer.   The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim.”  (Citation omitted;  internal quotation marks omitted.)  Wasko v. Manella, 74 Conn.App. 32, 35-36, 811 A.2d 727 (2002), rev'd, 269 Conn. 527, 849 A.2d 777 (2004).

Riley, Michael E., J.