Marcus Bordiere v. UTICA (2011)

MEMORALNDUM OF DECISION

The plaintiff, Marcus Bordiere, is the landlord of various houses in the city of New Britain.   On or subsequent to January 1, 2008 he was the owner of a two-level, two-family house known as 236 Clinton Street, New Britain, Connecticut, which he rented out to the public.   The plaintiff brings this action against the defendant Utica First Insurance Company alleging water damage to the real property at 336 Clinton Street when water pipes froze and burst leaking large quantities of water throughout the house.

The defendant, Utica First Insurance Company, denies liability under its policy on the property claiming the policy has a specific exception of liability set out in the insurance policy on the said property.

The Court finds the following facts which resulted in the damages to the said property and the resulting liability being incurred.

The plaintiff was the owner of various parcels of real estate and buildings improved with living spaces available to be rented out to the public.

One such parcel and building was a two-level, two-family house with the 2nd story rented out and which had the 1st story vacant.   This vacancy was in effect at the time involved herein and had been for approximately eighteen months prior to the incident resulting in the damages claimed by the plaintiff under its insurance policy with the defendant.

The second level was rented to and occupied by Josephine Almedina who was visiting her mother in New Jersey at the time the plaintiff's property suffered water damage when water pipes froze in her 2nd floor apartment.

Ms. Almedina visited with her mother for approximately eleven (11) days.

The plaintiff brought this action claiming the defendant issued an insurance policy covering the damages resulting when the water pipes froze and burst.

The defendant denies coverage for these damages based upon a clause in the policy under the Perils Section Page 2, Peril 16, which denies coverage while the residence is vacant and unoccupied (including temporary absence).   Unless insured has used reasonable care to:

a.  Maintain heat in the building;  or

b. Empty the system.

The tenant, Almedina, did not notify the plaintiff, Bordiere, that she was visiting with her mother, nor that the heat to the apartment was turned down.   Thus, it was not reasonable for the plaintiff to be aware of the need to check the heat in her apartment.

Further, the tenancy required the tenant to supply the heat to the apartment and the tenant was aware of this responsibility and she provided the heat for her apartment.

The first floor apartment below that of Ms. Almedina was vacant and had been vacant for approximately eighteen months before and during the herein freezing incident.   None of the pipes containing water had previously frozen in either apartment during this winter season so Bordiere was not aware that freezing and bursting of the pipes might occur.

The evidence presented was that the pipes that froze and burst were under the floor of Almedina's apartment and above the ceiling of the 1st floor apartment.   That, when the second floor apartment was heated sufficient heat reached the pipes under the floor of the upper apartment to keep the pipes from freezing even though the lower apartment was not heated.   Thus, the freezing and bursting of the pipes and resulting damage to the building were caused by the lack of sufficient heat in the 2nd floor apartment;  which, in turn, resulted because the 2nd floor tenant, Almedina, turned down the heat in her apartment while she visited with her mother for about eleven days.

The plaintiff-landlord, Bordiere, was not informed of her action in reducing the heat nor that she went to visit her mother.   Additionally, the tenant was responsible for maintaining heat in the apartment and failed to do so.

Further, the vacant 1st floor apartment was under control of and was the responsibility of the plaintiff/landlord.   However, the evidence presented at the trial was that the pipes that burst, which damaged the plaintiff's property were in the 2nd floor apartment and controlled by the 2nd floor tenant.   The 1st floor apartment's pipes did not burst even though it was not heated.

It is possible that had the first floor apartment been heated the 2nd floor pipes may not have burst even without heat in the second floor apartment, however, it was not the responsibility of the landlord to anticipate that the 2nd floor tenant might go visiting and not keep her apartment heated sufficiently to protect the water pipes.

Thus, the plaintiff's actions or inactions were not connected to the lack of heat that burst the water pipes and resulted in the damages to his building.   Nor, did the plaintiff violate any of the defendant's insurance policy terms that terminated the liability of the defendant under its insurance policy for the damages suffered by the plaintiff's property insured by the defendant.

Therefore, the court finds that the defendant's insurance policy was in effect and covered the plaintiff's building for the damages resulting from the pipes that burst in the 2nd floor apartment.

Further, the court finds that the damages resulting to the plaintiff from the burst pipes amount to $64,453.82.

Therefore, Judgment is to enter for the plaintiff Marcus Bordiere on his complaint and against the defendant, Utica First Insurance Company in the sum of $64,453.82 together with court costs.

Kremski, J.T.R.

Kremski, Julius J., J.T.R.