Linda Garre v. Peerless Ins. Co. (2013)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, # 114

I

ISSUE

Whether to grant summary judgment to the defendant on the grounds that there is no coverage for the claimed damage to the plaintiff's property under the defendant's homeowner's policy.

II

FACTS

This action arises from the denial of homeowner's insurance coverage by the defendant, Peerless Insurance Company, for roof damage at the home of the plaintiff, Linda Garre.   The plaintiff has made the following relevant assertions.

The defendant provided a homeowner's insurance policy to the plaintiff (the policy).   The policy covered the plaintiff's single-family home in Woodbury (the property).   The policy provided coverage for direct, physical loss to the property under specified circumstances.

On February 28, 2011, the property suffered a direct, physical loss, including the collapse of the roof, ceiling, water damage and damage to personal property.   The plaintiff reported the loss to her agent, who then notified the defendant.   The defendant then sent a claims personnel to the property to inspect it and adjust the loss.   The defendant did not request any proof of loss or estimate of damage, in violation of the policy.   On November 17, 2011, the defendant, relying on inapplicable policy exclusions, issued a letter denying coverage.   The defendant breached the policy by failing to properly investigate and evaluate the claim, improperly delaying evaluation of the claim and improperly denying the claim.

The plaintiff, who is currently self-represented,¹ filed the two-count operative complaint on July 19, 2013.   In count one, the plaintiff alleges breach of contract.   In count two, the plaintiff asks the court for a declaratory judgment that there is coverage under the policy for the claimed damage.

On February 19, 2013, the defendant moved for summary judgment on the ground that there is no coverage under the policy for the claimed damage to the property.   The defendant filed a supporting memorandum and attached:  (1) a certified copy of the policy;  (2) a copy of a denial of coverage letter, dated November 17, 2011;  (3) a report by Carl Cianci, dated November 7, 2012;  (4) Cianci's affidavit, dated February 13, 2013;  (5) photographs of the property, purportedly taken by Tracy Violette on October 21, 2011.   The plaintiff has not responded to the motion for summary judgment.   This matter was submitted on the papers on July 15, 2013.

III

DISCUSSION

“Practice Book § 17–49 provides that summary 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.   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.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 168–69, 947 A.2d 291 (2008).  “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant argues that there is no genuine issue of material fact that policy does not cover the claimed damage because:  (1) the policy does not cover damage caused by wear and tear, deterioration of the roof and leakage;  (2) the policy does not cover damage caused by neglect;  (3) the policy does not cover damage caused by faulty, inadequate or defective repairs or maintenance;  and (4) the plaintiff failed to give timely notice of the claimed ice damming.   The plaintiff has not replied to the defendant's arguments.

“Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction ․ The determinative question is the intent of the parties, that is, what coverage the ․ [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy ․ 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 ․ However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted ․ [T]his rule of construction favorable to the insured extends to exclusion clauses ․

“Put differently, [a]lthough policy exclusions are strictly construed in favor of the insured the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ The interpretation of an insurance policy is based on the intent of the parties, that is, the coverage that the insured expected to receive coupled with the coverage that the insurer expected to provide, as expressed by the language of the entire policy ․ The words of the policy are given their natural and ordinary meaning, and any ambiguity is resolved in favor of the insured ․ The court must conclude that the language should be construed in favor of the insured unless it has a high degree of certainty that the policy language clearly and unambiguously excludes the claim.”  (Citation omitted;  internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 795–96, 967 A.2d 1 (2009).

A

Wear and Tear, Deterioration of the Roof and Leakage

The policy, which is attached to the defendant's memorandum, provides that the policy does not cover “[w]ear and tear, marring, deterioration ․ [s]ettling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings ․ [or][c]onstant or repeated seepage or leakage of water or the presence or condensation of humidity, moisture or vapor, over a period of weeks, months or years unless such seepage or leakage of water or the presence or condensation of humidity, moisture or vapor and the resulting damage is unknown to all ‘insureds' and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure.”   The defendant argues that “[t]here can be no dispute that the water infiltration at the [p]roperty has taken place over the course of many years, and is due to wear and tear, deterioration and/or cracking of the roof.”

The defendant has attached a November 7, 2012 report and a February 13, 2013 affidavit by Carl Ciani, a consulting structural engineer, in support of its position.   Ciani's statements were based upon a November 1, 2012 visual examination of the property.   In the report, Ciani opined:  “the claimed damage is not due to ice damming or a sudden event ․ The damage was caused, in our opinion, by long term water infiltration, a lack of mitigation of additional damage and lack of maintenance.”   In his affidavit, Ciani averred:  “it is not possible to determine to any degree of probability, what if any, water damage occurred as the result of the claimed ice damming event on February 28, 2011.”   The defendant has also submitted multiple photographs of the property.

“The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact ․” (Internal quotation marks omitted.)  Carter v. Carter, 8 Conn.App. 356, 358, 512 A.2d 979 (1986).  “In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert's expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness.   It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them ․

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered ․ including expert testimony, and can construe such evidence in a manner different from the parties' assertions.”  (Internal quotation marks omitted.)  State v. Alvarado, 62 Conn.App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).  “[T]he trial court is not required to accept uncontradicted expert testimony.   The court might reject it entirely as not worthy of belief or find that the [expert] opinion was based on subordinate facts that were not proven.”  (Internal quotation marks omitted.)  Simard v. Commissioner of Motor Vehicles, 62 Conn.App. 690, 696, 772 A.2d 1137 (2001).  “[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Curley v. Kaiser, 112 Conn.App. 213, 220, 962 A.2d 167 (2009).

The plaintiff has not replied to the defendant's motion.   However, the court is aware that “[w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In the present case, the court finds that the defendant has failed to establish that there is no genuine issue that the claimed damage was not caused by a direct, physical loss covered under the policy.

Ciani's report and affidavit are based entirely upon a visual inspection of the property that occurred over twenty months after the claimed property damage.   While Ciani's observations may be useful to the fact finder, this court cannot grant summary judgment based upon visual observations of roof damage that occurred nearly two years after the alleged loss.   Likewise, this court cannot grant summary judgment based upon photographs that are attached to Ciani's report and those purportedly taken by Tracy Violette on October 21, 2011.   Examination and cross examination concerning the photographs would clearly be necessary and helpful to the court.   Therefore, there are genuine issues of fact as to whether the claimed property damage was caused by wear and tear, deterioration of the roof or leakage so as to be excluded from coverage under the policy.

B

Neglect

The policy that is attached to the defendant's memorandum provides that the policy does not cover “[n]eglect, meaning neglect of the ‘insured’ to use all reasonable means to save and preserve property at and after the time of a loss.”   The defendant argues that “it is clear that the plaintiff failed to take any steps to mitigate any damage caused by the alleged ice damming event of February 28, 2011.”   The defendant again relies upon Ciani's report and affidavit.   Ciani averred “[t]hat the interior of the residence is in a state of disrepair with no signs of effectively mitigating additional damage and no effort to repair previous on-going damage.”

In part IIIA of this decision, the court recognized that Ciani's report and affidavit were not sufficient to establish that there is no issue of fact that the claimed damage constituted wear and tear, deterioration and leakage, which is not covered by the policy.   The defendant likewise relies upon Ciani's statements to establish that the claimed damage resulted from neglect of the property.   The court therefore finds that the defendant has failed to meet its burden of showing that no genuine issue of fact exists as to whether the property was neglected as to be excluded from coverage.

Although “the trier of fact can disbelieve any or all of the evidence proffered ․ including expert testimony, and can construe such evidence in a manner different from the parties' assertions”;  (internal quotation marks omitted) State v. Alvarado, supra, 62 Conn.App. 112;  this court is not sitting as a trier of fact when considering a motion for summary judgment.   Moreover, this court cannot grant summary judgment based upon the photographs that the defendant provided, which were purportedly taken during periods eight months and twenty months after the alleged loss.   Examination and cross examination concerning the photographs would clearly be necessary and helpful to the court.   Accordingly, there are genuine issues of fact as to whether the claimed damage is excluded from coverage under the policy because the property has been neglected.

C

Faulty, Inadequate or Defective Repairs or Maintenance

The defendant argues that Ciani's report and affidavit, as well as the photographs attached to Ciani's report and photographs purportedly taken by Tracy Violette on October 21, 2011, demonstrate that the cause of the water infiltration is a defective condition of the plaintiff's roof, which predated the alleged ice damming event of February 28, 2011.   According to the defendant, the claimed damage is excluded from coverage pursuant to the policy provision that provides that the policy does not cover:  “Faulty, inadequate or defective ․ [d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction ․ Materials used in repair, construction, renovation or remodeling, or ․ Maintenance.”   The defendant relies upon Ciani's affidavit and report, as well as the photographs included in Ciani's report.

In parts IIIA and IIIB of this decision, this court concluded that the defendant, relying upon Ciani's report and affidavit, had not met its burden of demonstrating that there is no material fact that the claimed damage was covered under other provisions of the policy.   Likewise, the court cannot find, based upon Ciani's statements and attached photographs, that the defendant has met its burden of demonstrating that there is no material fact that the claimed damage is not covered by the policy because the damage was caused by faulty, inadequate or defective repairs or maintenance.

D

Late Notice

The defendant finally argues that the plaintiff allegedly provided late notice to the defendant and that “the breach of the [p]olicy conditions negates coverage for the alleged loss.”   According to the defendant, the plaintiff “did not report the loss to Peerless until August 28, 2011, six months after the alleged date of loss.”

The policy includes a condition that the insured “give prompt notice” to the defendant's agent in case of a loss to the property.  “Connecticut requires two conditions to be satisfied before an insurer's duties can be discharged pursuant to the notice provision of a policy:  (1) an unexcused, unreasonable delay in notification by the insured;  and (2) resulting material prejudice to the insurer.”  (Internal quotation marks omitted.)  Arrowood Indemnity Co. v. King, 304 Conn. 179, 198, 39 A.3d 712 (2012).   Our Supreme Court has held that an insured's failure to give prompt notice to the insurer of an insurable claim as required by the insurance policy does not result in an unconditional discharge of an insurer's liability under its insurance contract.  Aetna Casualty & Surety Co v. Murphy, 206 Conn. 409, 417–18, 538 A.2d 219 (1988), overruled on other grounds by Arrowood Indemnity Co. v. King, supra, 304 Conn. 179.   Recently, in Arrowood Indemnity Co. v. King, supra, our Supreme Court held “that the insurer bears the burden of proving, by a preponderance of evidence, that it has been prejudiced by the insured's failure to comply with a notice provision” to discharge its liability under a claim.  Id., 201.

In the present case, the defendant has attached no exhibits demonstrating that it was prejudiced by the plaintiff's alleged failure to provide prompt notice.²  The defendant's mere assertion that “the property was not protected in any way from further damage between the date of the alleged loss and the date it was reported to Peerless six months later,” is not sufficient to demonstrate that there is no issue of material fact that it has been prejudiced.   Therefore, the defendant has not met its burden of proving that there is no genuine issue of fact that it has been prejudiced by the plaintiff's purported failure to comply with the policy's notice provision.

IV

CONCLUSION

The defendant's motion for summary judgment is hereby denied.

Zemetis, J.

FOOTNOTES

FN1. The plaintiff was represented by counsel when the amended complaint was filed..  FN1. The plaintiff was represented by counsel when the amended complaint was filed.

FN2. The only evidence presented by the defendant that supports its claim that the plaintiff notified it of the damage six months after the alleged direct, physical loss, is the denial of coverage letter, where it lists the “D/O/L” as August 28, 2011.   At this juncture, the court need not decide when the plaintiff actually provided notice to the defendant because, under Arrowood Indemnity Co. v. King, supra, 304 Conn. 179, even if the plaintiff did not comply with the notice provision of an insurance policy, the defendant must still prove that it was prejudiced by the late notice..  FN2. The only evidence presented by the defendant that supports its claim that the plaintiff notified it of the damage six months after the alleged direct, physical loss, is the denial of coverage letter, where it lists the “D/O/L” as August 28, 2011.   At this juncture, the court need not decide when the plaintiff actually provided notice to the defendant because, under Arrowood Indemnity Co. v. King, supra, 304 Conn. 179, even if the plaintiff did not comply with the notice provision of an insurance policy, the defendant must still prove that it was prejudiced by the late notice.

Zemetis, Terence A., J.