LLC v. Middlesex Mutual Assurance Company (2014)

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Entry # 106)

The defendant's motion for summary judgment having been heard, it is hereby found that genuine issues as to material facts exist.   The defendant is relying on an exclusion in the applicable insurance policy, which provides that the defendant will not pay for a loss caused by:  “Water.  (1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether wind driven or not.”

The law is clear that, “[w]here recovery under a policy turns on the interpretation of an exclusionary clause, the insurer bears the burden of demonstrating that the loss is excluded under the express terms of the policy.”  Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990).  (See also, Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992).   Based upon the submissions of the parties, the defendant has not established that the damage to the wall in question was caused by an excluded event.   There remains a question of fact as to whether there was actually a flood that caused, either alone or concurrent with another event, the damage to the wall in question.   Moreover, it is apparent that the wall was damaged when a tree struck it.   It is unclear whether the tree was caused to inflict said damage by an excluded event, i.e. a flood, waves, tidal action, etc.

The defendant's motion is, therefore, DENIED.  Practice Book §§ 17–44 through 17–51, Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010);  Martinelli v. Fusi, 290 Conn. 347, 354–55, 963 A.2d 640 (2009).

Frechette, J.

Frechette, Matthew E., J.