Bernadette Roberts et al. v. Elizabeth Van Why et al. (2011)

MEMORANDUM OF DECISION FOR SUMMARY JUDGMENT MOTION # 156

In this homeowners insurance case, the third-party defendant, Travelers Indemnity Company of America, has moved for summary judgment on the grounds that the insured's claims for personal liability coverage are not covered by the policy.

FACTS

On June 4, 2008, the plaintiffs filed a four-count complaint against the defendant and third-party plaintiff, Elizabeth Van Why, among others, and filed a third revised complaint on October 26, 2009, which is the operative complaint, for, inter alia, breach of contract in the sale of real estate (property) from Van Why to the plaintiffs and for vandalism to the property.¹  The third revised complaint alleges that Van Why contracted to sell the property to the plaintiffs for $189,900, and full payment was presented to Van Why on October 31, 2002 (closing date).   The plaintiffs were not immediately given the keys to the property because Van Why had several personal items to remove from the property.   The plaintiffs were given the keys and access to the property on November 4, 2002, when they were advised that the property had been vandalized.   The plaintiffs allege that Van Why is contractually liable for the repairs as the damage occurred while the property was in her possession and the contract required her to deliver the property in the same condition as it was on the date of the contract.   In the alternative, they allege that Van Why negligently or willfully caused the property damage.

Van Why's third-party complaint, filed on August 8, 2008, against Travelers Indemnity Company of America (Travelers) alleges the following facts.   Van Why sold the property to the plaintiffs on October 31, 2002.   Van Why retained a key to the property to remove her furniture and left the property on November 3, 2002, at 12:10 pm.   At some point thereafter, the property was vandalized and the property's kitchen and bathrooms sustained extensive damage.   The property was insured under a homeowner's policy with Travelers at the subject time, policy number 0M6001–041225667–633–3 (policy), and the policy was cancelled on November 8, 2002.   The insurance policy covered vandalism, and she has put forth claims under the policy for coverage, indemnification and for Travelers to provide a defense in the underlying action, but Travelers refused to do so, which, Van Why alleges, is a breach its obligations under the contract.

On September 2, 2008, Travelers filed an answer and special defenses.   Its special defenses assert that the claim is excluded because, inter alia:  (1) it was an expected or intended loss;  (2) the policy does not cover personal liability for property damage to property owned by the insured;  (3) the policy does not cover personal liability for property damage to property that is rented to, occupied, used or in the care of the insured and (4) the policy was cancelled on either November 2, 2002, or November 8, 2002.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact.  Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).   To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact.  Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Cummings & Lockwood v. Gray, 26 Conn.App. 293, 297, 600 A.2d 1040 (1991).

Travelers argues that there is no genuine issue of material fact that coverage is excluded and it is entitled to judgment as a matter of law.   It argues that it does not have a duty to defend or indemnify Van Why because the loss is excluded under the policy.   First, it points to the personal liability coverage exclusion for property damage that is expected or intended by the insured.   It relies on the plaintiffs' complaint, which alleges that the property was in Van Why's possession and that she wilfully caused the property damage.   Next, it points to the personal liability exclusion for property damage to property owned, used or in the control of an insured.   As the plaintiffs' complaint alleges that Van Why was in control and possession of the property at the time of the alleged vandalism, it argues that the claim is excluded.   As evidence, it submitted the affidavit of James Miele, in which he states that the attached policy is a true and certified copy, that the policy was in effect from August 14, 2002 through November 8, 2002, and provides the relevant exclusions.²  It also provided a copy of the full homeowners policy.

Van Why argues that there are material facts in dispute that render the case inappropriate for summary judgment.   First, she argues that it is disputed whether the property damage was caused by her, and points to her answer to the plaintiffs' complaint, in which she denied that allegation.   In support of her argument, she submitted an affidavit wherein she states that the house was vandalized after the closing date but prior to November 4, 2002, by unknown persons, and denies having any connection to or responsibility for the vandalism.

Next, she argues that she did not own the property at the time that the damage occurred, as the property was transferred by warranty deed on October 31, 2002, to the plaintiffs, which made the plaintiffs the official owners of the property at the time of the damage.   Thus, who actually owned the property is a material fact in dispute.   She also argues that it is possible that other keys to the property existed and it is disputed whether the damage may have been caused by others with access to the property, such as the real estate agent, who is also a defendant in the underlying lawsuit.   In support of her argument, she points to her affidavit, wherein she states that she was the owner of the property until October 31, 2002, when she conveyed the property to the plaintiffs by warranty deed in exchange for $189,900, and she ceased to own the property on that date.   She states that the property was insured by Travelers at the time of the loss.   She states that she did not own or occupy the property after October 31, 2002.

When a policy of insurance explicitly excludes from its coverage the conduct alleged in a complaint brought against the insured, the court may properly determine, at summary judgment, whether the insurer has a duty to defend the insured against the allegations of that complaint.  Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 397–98, 757 A.2d 1074 (2000).  “The question of whether an insurer has a duty to defend its insured is purely a question of law”;  id., 395;  and “[i]t is the function of the court to construe the provisions of the contract of insurance.”  Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979).   Generally, insurance “policy exclusions are strictly construed in favor of the insured ․” Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000).  “It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy ․ The policy words must be accorded their natural and ordinary meaning ․” (Internal quotation marks omitted.)  Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399.

“The question whether the defendant had a duty to defend the action brought ․ depends on whether the complaint in that action stated facts which appeared to bring [the] claimed injury within the policy coverage.”   Missionaries of the Co. of Mary, Inc. v. The Aetna Casualty & Surety Company, 155 Conn. 104, 110, 230 A.2d 21 (1967).  “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 which bring the injury within the coverage.   If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured's ultimate liability ․ It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint ․ Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend.”  (Citation omitted;  internal quotation marks omitted.)  Flint v. Universal Machine Co., 238 Conn. 637, 646–47, 679 A.2d 929 (1996).  “On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend.”  Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 517, 123 A.2d 755 (1956).

“[T]he essence of liability insurance is to provide coverage for legal liability that one might incur to others, and an insured always has an interest in protecting against this liability.”   R. Jerry & D. Richmond, Understanding Insurance Law (4th Ed.2007) § 44, p. 301.   Personal liability coverage for property damage is generally covered by a homeowners policy, subject to various conditions and exclusions.   See R. Jerry & D. Richmond, supra, § 65, p. 513.   Personal liability coverage “provides protection when the insured is away from the [insured premises]” and for activities that occur on the insured premises.  Id.

The policy states that it provides insurance coverage for damage to the insured's dwelling, which is the residence premises, and the insured's personal property.   It also provides personal liability coverage “when a claim is made or suit is brought against any insured for damages because of ․ property damage caused by an occurrence to which this coverage applies ․” Travelers Homeowners Policy, Section II, Coverage E, Personal Liability p. 14.   “Occurrence” is defined as “an accident ․ which results, during the policy period, in:  bodily injury or ․ property damage.”  Id., p. 1. “Property damage” is defined in the policy as “physical injury to, destruction of, or loss of use of tangible property.”  Id. Such coverage provides (a) indemnification, where Travelers will “pay up to out limit of liability for damages for which the insured is legally liable” and (b) a defense to the action, where Travelers “provide[s] a defense at our cost by counsel of our choice, even if the suit is groundless, false or fraudulent.”  Id., p. 14.   The policy excludes personal liability coverage for certain types of claims, for instance:  “Personal Liability [coverage] ․ do[es] not apply to ․ property damage ․ which is expected or intended by the insured ․” Policy, Section II(1) p. 15.   It also excludes personal liability coverage for “property damage to property owned by any insured ․ [or property damage] to property rented to, occupied or used by or in the care of any insured.”   Id., p. 16.

Viewing the evidence in the light most favorable to the nonmovant, Travelers has failed to sustain its burden that no genuine issue of material fact exists as to whether she intentionally caused the vandalism to the property.   It is undisputed that the policy was in effect at the time of the loss, and it covers property damage for an “occurrence,” which is defined as an accident.   The definition of this term has been described as “an event that is unintended from the perspective of the insured,” marked by “a lack of intention or necessity, often opposed to design,” or a “sudden event or change occurring without intent or volition ․ and producing an unfortunate result.”  (Internal quotation marks omitted.)  Vermont Mutual Ins. Co. v. Walukiewicz, 290 Conn. 582, 594, 966 A.2d 672 (2009).   The plaintiffs' complaint alleges that Van Why is liable for the property damage under several different theories of liability:  (1) contractual;  (2) negligence and (3) intentional conduct.

While Travelers relies on the plaintiffs' allegations, which allege that the property damage to the house was caused either negligently, or in the alternative willfully, by Van Why, Travelers fails to confront the allegation that she may have negligently caused the property damage, not intentionally or expectantly.   While Travelers emphasizes the allegations in the amended complaint that allege intentional acts, this reading ignores the complaint as a whole.³  Further, Van Why presented evidence to the court that she did not negligently, intentionally or expectantly cause the property damage.   Travelers' conclusory claims to the contrary are unavailing as they are mere assertions of fact which cannot properly refute evidence before the court.   See Byrne v. Burke, 112 Conn.App. 262, 267–68, 962 A.2d 825, cert. denied, 290 Conn. 932, 966 A.2d 235 (2009).   The duty to defend is triggered when the allegations provide a cause of action that is covered under the policy, and negligent or unintentional property damage is covered under the policy.   Therefore, the plaintiffs' complaint alleges facts that bring the claim within coverage of the policy, and thus a duty to defend exists.   Additionally, there is a genuine issue of material fact as to whether the property damage was negligently or intentionally caused by Van Why. Accordingly, Travelers' motion for summary judgment is denied on this ground.

With regard to Travelers' second argument, viewing the evidence in the most favorable to the nonmovant, a genuine issue of material fact exists.   Travelers argues that the exclusion applies to defeat personal liability coverage for property that is owned, occupied by, in the care of or used by an insured, and relies on the plaintiffs' allegations that Van Why retained possession of the property at the time of the loss.   Van Why presented evidence in her affidavit that a warranty deed on the property was effectuated on October 31, 2002, and ownership of the property was transferred to the plaintiff's on that date.   The plaintiffs' complaint also alleges that the closing occurred on that date.   “Delivery of a deed coupled with intent by the grantor to pass title is necessary for a valid conveyance ․ The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee ․ Both elements involve questions of fact for the trier of fact.”  (Citations omitted;  internal quotation marks omitted.)  McCook v. Coutu, 31 Conn.App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993).   Her affidavit additionally disputes that she resided in or occupied the property at the time of the damage.   Thus, a genuine issue of material fact exists as to whether the property was owned or occupied, used or in the care of the plaintiffs or Van Why at the time of the loss, as there are genuine issues of fact exist that are dispositive as to whether the Travelers' policy provides coverage.   Travelers' motion for summary judgment is denied on this ground.

CONCLUSION

For the foregoing reasons, Travelers' motion for summary judgment is denied.

Domnarski, J.

FOOTNOTES

FN1. The property is located at 28 Colebrook Street, Hartford, Connecticut..  FN1. The property is located at 28 Colebrook Street, Hartford, Connecticut.

FN2. James Miele is an employee at Travelers..  FN2. James Miele is an employee at Travelers.

FN3. A review of the plaintiffs' third revised complaint does not support Travelers' argument, as Connecticut Practice Book § 10–25 allows a plaintiff to plead alternative claims, which the plaintiffs have so done in this instance by alleging both intentional or negligent acts..  FN3. A review of the plaintiffs' third revised complaint does not support Travelers' argument, as Connecticut Practice Book § 10–25 allows a plaintiff to plead alternative claims, which the plaintiffs have so done in this instance by alleging both intentional or negligent acts.

Domnarski, Edward S., J.