Opinion
CV156024492S
12-11-2017
David PREKA et al. v. VERMONT MUTUAL INSURANCE COMPANY
UNPUBLISHED OPINION
Caption Date: December 8, 2017
OPINION
Cole-Chu, J.
On February 16, 2016, the plaintiffs, David Preka and Jody Preka, filed a four-count amended complaint (complaint) against the defendant, Vermont Mutual Insurance Company. This action arises out of a contract for homeowner’s insurance entered into by the parties. The plaintiffs allege breach of the insurance contract in count one; breach of the implied covenant of good faith and fair dealing in count two; violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), in count three; and unjust enrichment in count four. The defendant seeks summary judgment on all four counts. On November 30, 2016, the defendant filed a memorandum of law (memorandum in support) and several exhibits in support of its motion. On April 28, 2017, the plaintiffs filed a memorandum of law in opposition to the motion (memorandum in opposition) with exhibits, to which the defendant filed a reply and additional exhibits on May 5, 2017. The motion was argued and submitted on May 8, 2017. The court granted the motion by summary ruling on November 30, 2017, to be followed by this memorandum of decision. The court apologizes for the delay in ruling.
The defendant filed its memorandum and exhibits without an actual motion. On March 1, 2017, the defendant filed its motion for summary judgment.
FACTS
In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the nonmoving party. Heisinger v. Cleary, 323 Conn. 765, 776, 150 A.3d 1136 (2016). Statements that are merely conclusions are not evidence. Stuart v. Freiberg, 316 Conn. 809, 828-29, 116 A.3d 1195 (2015). Viewing the parties’ submissions in this light, the basic facts are as follows.
The plaintiffs suffered certain losses of personal property, including cash, in a burglary at their residence on December 1, 2014. The plaintiffs had, and had paid for, a homeowner’s insurance policy (policy) issued by the defendant. That policy provided that, among the insureds’ duties in the event of a loss, the defendant could require them to submit to examination under oath concerning their claimed losses. The plaintiffs made a claim for losses due to the burglary. The defendant scheduled, and gave notice to the plaintiffs of, their examinations under oath, to be conducted on March 31, 2015. The plaintiffs, by their attorney, told the defendant that they would not attend the examination, and they did not attend. On April 5, 2015, the defendant denied the plaintiffs’ claim because of their refusal to submit to the examination under oath.
DISCUSSION
Practice Book § 17-49 provides that summary judgment must be rendered if the pleadings, affidavits and any other proof submitted demonstrate 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. Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach on the basis of the evidence. Rieffel v. Johnston -Foote, 165 Conn.App. 391, 404, 139 A.3d 729 (citing Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 [1995]), cert. denied, 322 Conn. 904, 138 A.3d 289 (2016). Another way to view the standard for granting a motion for summary judgment is that the court must find that all the evidence needed to make the required findings is before the court and that, without weighing the credibility of any of that evidence, the movant is entitled to judgment. See Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); Kopacz v. Day Kimball Hospital of Windham City, Inc., 64 Conn.App. 263, 267, 779 A.2d 862 (2001).
In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist; however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists. State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). The court views the evidence in the light most favorable to the nonmoving party. Id. In ruling on the present motion, the court’s function is to determine whether any issues of material fact exist, not to decide any such issues. Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012).
I
BREACH OF CONTRACT
The defendant moves for summary judgment on the breach of contract claim in count one on the ground that the plaintiffs breached a material condition of their policy by failing to submit to an examination under oath and thereby forfeited their coverage. As the defendant correctly notes, generally, an insured’s compliance with a cooperation provision (or a more specific examination under oath provision) in an insurance policy is a condition the breach of which discharges the insurer’s duty to pay out for covered claims; O’Leary v. Lumbermen ’s Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979); Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, 116 Conn.App. 417, 432, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009); and provides the insurer an absolute defense to an action on the policy. Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, 142 Conn.App. 390, 408, 70 A.3d 74, cert. denied, 309 Conn. 909, 68 A.3d 662 (2013). For the insurer’s duty to be discharged, however, the insured’s noncompliance must be substantial or material; a policy condition is not broken by a failure of the insured in an immaterial or unsubstantial matter. Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 133, 302 A.2d 284 (1972); Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 433. In other words, the insured is held to a standard of substantial compliance rather than strict compliance.
Conduct on the part of the insured that does not strictly comply with a given policy provision will be regarded as an immaterial or unsubstantial failure where the conduct is of such a nature as to not be included within the fair intendment of the requirements of that provision. Arton v. Liberty Mutual Ins. Co., supra, 163 Conn. 133-34; Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 116 Conn.App. 433. Ordinarily, whether a party to a contract substantially complied with, or materially breached, the contract is a question of fact for the fact-finder, to be decided in light of the particular facts and circumstances of the case. Pack 2000, Inc. v. Cushman, 311 Conn. 662, 685, 89 A.3d 869 (2014); O’Leary v. Lumbermen’s Mutual Casualty Co., supra, 178 Conn. 38-39. In some circumstances, however, the issue of whether certain facts amount to a breach of contract is a mixed question of law and fact- and sometimes it is wholly a question of law. See Stevens v. Pierpont, 42 Conn. 360, 361-62 (1875). An issue that ordinarily presents a question of fact may become a question of law when the mind of a fair and reasonable factfinder could reach only one conclusion; see, e.g., Grenier v. Commissioner of Transportation, 306 Conn. 523, 558, 51 A.3d 367 (2012) (issue of proximate causation); or where the undisputed subordinate facts require such conclusion as a matter of law. See, e.g., Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 171, 117 A.3d 876 (appellate courts may draw factual conclusions if subordinate facts found by trial court make such conclusions inevitable as matter of law), certs. denied, 318 Conn. 902, 122 A.3d 631, 123 A.3d 882 (2015). Thus, an insurer’s motion for summary judgment does not necessarily fail merely because it involves a question of substantial compliance. Indeed, our Appellate Court has on several occasions upheld the granting of such a motion. See, e.g., Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 433-34 (rejecting insured’s claim that its cooperation with insurer’s investigation satisfied substantial compliance standard where it was undisputed that insured failed to provide insurer with requested information that trial court properly deemed to be material to investigation); Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 147, 822 A.2d 341 (2003) (concluding that, as matter of law, insureds’ failure to appear for examination under oath was breach of material condition of policy and insurer was thus justified in denying their claim).
In the present case, there is no genuine dispute as to any of the relevant, subsidiary facts, namely, the existence of a policy condition requiring the plaintiffs submit to examination under oath at the defendant’s election, the defendant’s election to examine the plaintiffs under oath, and the plaintiffs’ failure to appear for the scheduled examinations.
To establish the existence of the particular policy condition at issue, the defendant submitted a copy of the insurance policy in effect at the time of the alleged burglary. , Section one of the policy addresses coverage for real and personal property and thus governed the plaintiffs’ underlying insurance claim. In the subsection entitled " SECTION I- CONDITIONS, " the policy enumerates the plaintiffs’ " [d]uties [a]fter [l]oss, " one of which was to " [s]ubmit to examination under oath" " [a]s often as [the defendant] reasonably require[d]." The policy also provides, in the same subsection: " No action can be brought unless the policy provisions have been complied with ..." The import of the foregoing provisions is plain and unambiguous: the plaintiffs were required under the policy to submit to examination under oath when requested by the defendant, and their compliance with this requirement was a condition to their right to bring an action under the policy. Indeed, this language is substantially similar to the policy language that the Appellate Court in Double G.G. Leasing, LLC, recognized as creating a condition to coverage. See Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 116 Conn.App. 427-28, 432-34. There can therefore be no dispute as to the existence of an examination under oath requirement in the plaintiffs’ policy.
Unless otherwise stated, each document to which reference is made in this memorandum of decision is an exhibit submitted on the present motion.
At oral argument, the plaintiffs argued that the partial policy copy attached to the defendant’s initial memorandum in support raised a question of fact as to whether the policy in effect at the time of the burglary included the essential " [d]uties [of the insured a]fter [l]oss" condition. Although it is true that the date on the excerpt of the policy was different from the date on the full policy submitted with the defendant’s reply brief (and that the same officer of the defendant testified, by affidavit, that both the excerpt and what the court finds to be the full copy of the policy were true copies), the court finds this claim to be immaterial. There is no dispute that the policy existed; and the plaintiffs do not claim that the partial copy attached to the defendant’s memorandum in support was actually a different policy or that the copy attached to the defendant’s reply was not, despite its 2017 date (which the court finds to be an automated print date), a true copy of the subject policy. There is nothing in the record indicating otherwise. Although the burden of a party seeking summary judgment is heavy, relief will not be denied for an obvious, insubstantial, corrected error in the evidence. The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012) (" [w]hether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard").
There is likewise no genuine dispute as to the defendant’s invocation of its right to examine the plaintiffs under oath, nor as to the plaintiffs’ subsequent failure to appear for such examinations. By letter dated March 13, 2015, the defendant’s attorney requested that the plaintiffs appear to be examined under oath on March 31, 2015, and that they bring along certain documentation. Although there is no evidence as to when or by what means this letter was sent to the plaintiffs, it is clear that the plaintiffs received it in advance of the scheduled examinations, as their attorney subsequently made reference to the letter in March 18, 2015, correspondence with the defendant’s attorney. The defendant having thus effectively communicated its election to conduct examinations of the plaintiffs under oath, the plaintiffs, in turn, were required to appear for these examinations. As the plaintiffs testified at their respective depositions, however, they did not appear.
In their memorandum in opposition, the plaintiffs argue that they nevertheless substantially complied with the policy. More specifically, the plaintiffs assert that, after the burglary, they: (1) immediately contacted the police; (2) notified the defendant of the loss; (3) allowed the defendant to conduct an inspection of the premises; (4) provided recorded statements to the defendant’s representative regarding the loss; (5) completed a theft questionnaire; (6) submitted certain documentation related to some of the stolen property; and (7) subsequently provided some supplemental information. Even assuming there is evidence in the record to support these assertions, the plaintiffs’ argument still fails.
The particular policy condition forming the basis of the defendant’s motion for summary judgment on count one is the requirement that the plaintiffs " [s]ubmit to examination under oath, while not in the presence of any other ‘insured’ and sign the same." That the plaintiffs notified the police and the defendant of the loss, allowed the defendant to inspect the premises, and furnished the defendant with certain documentation cannot be deemed evidence of substantial compliance with this provision, for the plaintiffs were already required to do these things pursuant to other provisions in the policy, which provisions were separate and distinct from the examination under oath requirement here at issue. That the plaintiffs also gave recorded statements to the defendant likewise cannot constitute substantial compliance. Although our appellate courts have not addressed the issue, it is widely recognized among other jurisdictions that prior, recorded interviews with the insurance company are not equivalent to an examination under oath and therefore cannot constitute substantial compliance with an examination under oath provision. See, e.g., Lewis v. State Farm Fire & Casualty Co., United States Court of Appeals, Docket No. 99-6162 (6th Cir. December 5, 2000); Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944, 946 n.3 (11th Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990); Goldman v. State Farm Fire General Ins. Co., 660 So.2d 300, 305 (Fla.App. 1995), cert. denied, 670 So.2d 938 (Fla. 1996); Watson v. National Surety Corp., 468 N.W.2d 448, 451-52 (Iowa 1991); Spears v. Tennessee Farmers Mutual Ins. Co., 300 S.W.3d 671, 681-82 (Tenn.App. 2009); Downie v. State Farm Fire & Casualty Co., 84 Wash.App. 577, 583-84, 929 P.2d 484, cert. denied, 132 Wash.2d 1003 , 939 P.2d 215 (1997), overruled in part on other grounds by Staples v. Allstate Ins. Co., 176 Wash.2d 404, 295 P.3d 201 (2013). This is true even where the insured states at the end of the interview that he or she truthfully answered the questions asked. Watson v. National Surety Corp., supra, 451-52; Spears v. Tennessee Farmers Mutual Ins. Co., supra, 682; see, e.g., Downie v. State Farm Fire & Casualty Co., supra, 583, 585 (submitting to two recorded statements did not constitute substantial compliance with examination under oath requirement in policy notwithstanding fact that each statement noted that it was true and correct to best of insured’s knowledge). In short, the plaintiffs cannot create a triable issue of material fact regarding substantial compliance with an essential policy condition by showing what other policy conditions they fulfilled.
In addition to the examination under oath provision, the policy further provides in relevant part: " In case of a loss to covered property, you must see that the following are done:
Whereas a recorded statement is an oral statement given by an insured to the insurer’s representative who records it on a tape recorder, an examination under oath is an examination conducted by the insurer of the insured who is placed under oath and whose answers are transcribed by a stenographer. Lorenzo-Martinez v. Safety Ins. Co., 58 Mass.App. 359, 365 n.5, 790 N.E.2d 692 (2003).
The undisputed facts admit of only one conclusion of law: the plaintiffs materially breached the policy’s examination under oath provision. Under the explicit terms of the policy- the insurance contract- the defendant had the right to compel the plaintiffs to submit to examination under oath. It is therefore clear that the plaintiffs’ refusal to appear for the scheduled examinations constituted a material breach of that contract as a matter of law. See Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 147 (as matter of law, insureds’ failure to submit to examination under oath breached material policy condition and justified denial of claim); Pervis v. State Farm Fire & Casualty Co., supra, 901 F.2d 946 (summary judgment for insurer upheld for breach of insurance contract under which insurer had right to compel insured to testify and insured refused); Standard Mutual Ins. Co. v. Boyd, 452 N.E.2d 1074, 1079 (Ind.App. 1983) (same); Ellis v. Safety Ins. Co., 41 Mass.App. 630, 638-39, 672 N.E.2d 979 (1996) (insured’s failure to comply with condition in insurance contract requiring examination under oath constituted substantial breach of contract as matter of law). As such, the defendant was justified in declining the plaintiffs’ claim for insurance coverage. Taricani v. Nationwide Mutual Ins. Co., supra, 147.
As with contractual conditions in general, the nonoccurrence of a condition in an insurance policy may be excused, thereby leaving intact the insurer’s obligations under the policy. O’Leary v. Lumbermen’s Mutual Casualty Co., supra, 178 Conn. 38; Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, supra, 142 Conn.App. 408; 2 Restatement (Second), Contracts § 225(2) (1981) (" [u]nless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur" [emphasis added]). A failure of condition may be excused on a variety of grounds. For example, it may be excused where the insurer waives or is estopped from enforcing the condition; O’Leary v. Lumbermen’s Mutual Casualty Co., supra; Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, supra; 2 Restatement (Second), supra, § 225, comment (b), p. 166; the insurer repudiates the conditional duty or manifests an inability to perform it; 2 Restatement (Second), supra, § 225, comment (b), p. 166; or the insurer prevents or hinders the condition’s occurrence through a breach of the duty of good faith and fair dealing. Id., comment (b), p. 166. Thus, summary judgment for the insurer is inappropriate if the insured shows that there is a triable issue of material fact as to whether there was a valid excuse for the failure of condition. See Monteiro v. American Home Assurance Co., 177 Conn. 281, 286-87, 416 A.2d 1189 (1979) (affirming summary judgment in favor of insurers where it was undisputed that insured failed to bring suit within one year of alleged loss as required by insurance policy and excuse presented by plaintiffs was not legally cognizable); Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 152 (affirming grant of summary judgment in favor of insurer, in part because insureds’ failure, without valid excuse, to appear for examinations under oath breached insurance contract as matter of law).
In the present case, the plaintiffs appear to espouse the excuse of repudiation. In their memorandum in opposition, they argue that the defendant breached its duty to cooperate with them and that, therefore, under the doctrine of anticipatory repudiation, they were justified in suspending performance of their contractual duties. As a preliminary matter, the court notes that, in view of the particular conduct alleged, the plaintiffs’ reliance upon the doctrine of anticipatory repudiation is misplaced. Under that doctrine, a party’s definite and unequivocal manifestation of intent not to render a promised performance at the contractually agreed-upon time constitutes an anticipatory breach of that promise, which discharges any remaining duties of the nonbreaching party. Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 157 Conn.App. 161. Here, however, the plaintiffs do not contend that the defendant repudiated its conditional duty to pay covered claims or that the defendant manifested an inability to pay such claims. Rather, the plaintiffs assert that the defendant failed to cooperate with them in the lead-up to the scheduled examinations, which the plaintiffs seem to suggest was done to discourage them from appearing for the examinations so that the defendant could in turn use their nonappearance as a pretext to deny their claim. Such excuse is more properly construed as prevention or hindrance rather than repudiation. Even when properly framed, however, this excuse fails because there is nothing in the record to indicate that the defendant breached its duty to cooperate with the plaintiffs.
Under the prevention doctrine, a party to a contract who prevents or hinders the occurrence of a condition precedent to his or her promise to perform is not relieved of that obligation. Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 176, 84 A.3d 840 (2014), citing 2 Restatement (Second), supra, § 245. Thus, where the party’s hindrance contributes materially to the nonoccurrence of the condition, the nonoccurrence is excused, and the party’s duty ceases to be subject to that condition. See 2 Restatement (Second), supra, § 245. This principle is a specific application of the covenant of good faith and fair dealing that is implicit in every contract; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra (citing 2 Restatement [Second], supra, § 245, comment [a], p. 258); which is essentially a rule of contract construction designed to fulfill the parties’ reasonable expectations of performance. Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 399 n.11, 142 A.3d 227 (2016). Hence, where one party’s duty is subject to a condition, that party’s implied duty to act in good faith may require some cooperation on that party’s part, either by refraining from conduct that will prevent or hinder the occurrence of the condition or by taking action to enable its occurrence. See 2 Restatement (Second), supra, § 245, comment (a), p. 258.
Section 245 of the Restatement (Second) of Contracts provides: " Where a party’s breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused."
In the context of insurance contracts, such implied duty to cooperate is widely recognized. As the plaintiffs correctly note, where the insured’s right to recover under the insurance contract is conditioned on his or her cooperation with the insurer’s investigation, the insurer has a reciprocal duty to cooperate with the insured. Imperiali v. Pica, 338 Mass. 494, 498-99, 156 N.E.2d 44 (1959). The insurer’s duty to cooperate, however, is more narrowly circumscribed than that of the insured. Whereas a cooperation clause in an insurance contract generally requires the insured to disclose information reasonably requested by the insurer in the course of its investigation into the insured’s claim; Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, supra, 142 Conn.App. 408; the insurer’s reciprocal duty is limited to exercising reasonable diligence and good faith in obtaining the insured’s cooperation. Imperiali v. Pica, supra, 498-99; American Guarantee & Liability Ins. Co. v. Chandler Mfg. Co., 467 N.W.2d 226, 229 (Iowa 1991); Ogunsuada v. General Accident Ins. Co. of America, 695 A.2d 996, 1000 (R.I. 1997); see Arton v. Liberty Mutual Ins. Co., supra, 163 Conn. 135 (noting that insurer is required to make diligent search and inquiry to determine insured’s whereabouts). To fulfill its duty, the insurer must in good faith employ methods reasonably calculated to locate the insured and to apprise the insured that the insurer is requesting its assistance. Continental Casualty Co. v. Jacksonville, 550 F.Supp.2d 1312, 1339 (M.D.Fla. 2007), aff’d., 283 Fed.Appx. 686 (11th Cir. 2008); Carpenter v. Superior Court, 101 Ariz. 565, 570, 422 P.2d 129 (1966). Thus, an insurer breaches its duty to cooperate where its efforts in locating a purportedly disappeared insured are merely perfunctory and minimal; see, e.g., Shelter Mutual Ins. Co. v. Page, 316 Ark. 623, 629, 873 S.W.2d 534 (1994) (holding that insurer was not diligent in attempting to locate insured where there was no evidence that insurer did anything other than try to call insured at his previous address or drive by his former house); or where the insurer’s request for cooperation is untimely or inadequate. See, e.g., Harris v. Phoenix Ins. Co., 35 Conn. 310, 313 (1868) (noting that insureds’ claimed lack of notice could have excused their subsequent failure to submit to examination under oath had insurer not used due diligence to notify them that it was requiring such examination). The insurer’s implied duty of good faith and fair dealing, from which its duty to cooperate arises, requires this result essentially as a matter of public policy- i.e., giving, and requiring of, parties to an insurance contract what they reasonably expected. See Geysen v. Securitas Security Services USA, Inc., supra.
In the present case, the plaintiffs do not assert that the defendant failed to diligently inquire into their whereabouts or to provide them with timely, adequate notice of the examinations under oath. It is undisputed that the plaintiffs received notice of the defendant’s initial request, and then of the defendant’s requirement, that they appear (separately) for examinations under oath. The basis for the plaintiffs’ breach of duty to cooperate excuse is their assertion that the defendant failed to offer them an interpreter and refused to disclose, ahead of the scheduled examinations, the factual basis for its reservation of rights and the scope of its ongoing investigation. As a matter of law, this conduct is not a breach of the defendant’s duty to cooperate.
In their memorandum in opposition, the plaintiffs appear to claim that, after they had refused to appear for the scheduled examinations, the defendant was required to do more to secure their cooperation before they could be deemed in breach of the insurance contract. There is no merit to this claim. If the plaintiffs had offered to submit to such examination at a later time, their initial failure to appear might be excused. See Brizuela v. Calfarm Ins. Co., 116 Cal.App.4th 578, 588, 10 Cal.Rptr.3d 661 (2004), cert. denied, Supreme Court of California, Docket No. S124073 (June 9, 2004). There is no evidence that the plaintiffs did so in this case. In any event, neither the policy nor the law required the defendant to renew its demand to examine the plaintiffs. See Pervis v. State Farm Fire & Casualty Co., supra, 901 F.2d 948.
The plaintiffs’ memorandum in opposition states that they objected to the potential scope of the defendant’s examination chiefly out of concern that the requested disclosure of their bank records would constitute an invasion of privacy. Such concerns do not excuse refusal to submit to an examination required by their policy, let alone raise a triable issue of fact as to whether the defendant breached any duty to the plaintiffs under the policy.
Generally, the contractual condition of submitting to an examination under oath is not itself conditioned on examination of the insurer by the insured, let alone on the insured’s satisfaction with the outcome of such an examination of the insurer. Specifically, in view of the particular information that the plaintiffs requested, no reasonable fact-finder could conclude that the defendant’s duty to cooperate extended so far as to require it to acquiesce to the request. The purpose of an examination under oath provision is to protect the insurer’s interests; it gives the insurer an opportunity to obtain the information needed to verify the basis for the insured’s claim and decide whether and upon what ground to contest the claim and to protect itself from unsound or fraudulent claims. See Anton v. Liberty Mutual Ins. Co., supra, 163 Conn. 134; Staples v. Allstate Ins. Co., supra, 176 Wash.2d 411; Ansul, Inc. v. Employers Ins. Co. of Wausau, 345 Wis.2d 373, 392, 826 N.W.2d 110 (Wis.App. 2012). In other words, it aids the insurer in distinguishing noncovered, exaggerated, and fraudulent claims from covered, accurate, and honest ones. Lester v. Allstate Property & Casualty Ins. Co., 743 F.3d 469, 470 (6th Cir. 2014). Permitting the insured to condition his examination, where the policy calls for one, on disclosure of what the insurer knows would plainly undermine the purpose of obtaining the insured’s unvarnished testimony as to what he knows and what he does not know. At best, knowing what the insurer’s investigation has- correctly or not- revealed would likely taint the insured’s perception of the facts. At worst, it would invite and enable tailoring of the insured’s testimony. See Lester v. Allstate Property & Casualty Ins. Co., supra, 470. An insured thus cannot justifiably expect its insurer to share information in its investigative files before examining the insured, and the insurer has no implied contractual duty to do so. See id. (insured’s failure to appear for examination was not excused by insurer’s refusal to give access to its investigative files beforehand).
Nor could any reasonable factfinder conclude from the undisputed facts in the present case that the defendant breached its duty to cooperate by failing to offer the plaintiffs the services of an interpreter. Although the plaintiffs assert that the defendant had known " that there was the possibility of a language barrier" before the scheduled examinations under oath, there is nothing in the record to suggest that either of the plaintiffs actually needed or requested an interpreter for the examinations scheduled by the defendant. By letter dated March 30, 2015, the plaintiffs’ attorney informed the defendant’s attorney that " the examination under oath will not be going forward tomorrow." The only reason given for the plaintiffs’ refusal to appear was their claim that the defendant had breached the policy by failing to provide " the factual good faith basis as to why [their] claim [was] still under investigation and why there [was] a reservation of rights." It was not until after the plaintiffs had failed to appear for the examinations and the plaintiffs’ claim had been denied that the plaintiffs gave any indication to the defendant that they had expected the defendant to provide an interpreter. By definition, cooperation is a joint effort. A party cannot be found to have failed to cooperate unless he knows, or is charged by law with knowing, the reasonable requirements of his duty to cooperate. See State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. 32, 38, 166 So.2d 872 (1964); Carpenter v. Superior Court, supra, 101 Ariz. 569; Hansen v. Barmore, 779 P.2d 1360, 1364 (Colo.App. 1989). Hence, even assuming that an insurer’s implied duty to cooperate may in certain circumstances require it to provide the insured with an interpreter at an examination under oath, the insurer’s duty to provide such interpreter cannot arise until the insured actually requests one. In the present case, there is no material question of fact that the plaintiffs had not requested an interpreter before the scheduled examinations, and, consequently, the defendant was under no duty to do so.
An April 7, 2015 letter from the plaintiffs’ attorney to the defendant’s attorney states, in part, " [k]nowing that there was a potential language barrier and my clients were claiming discrimination, please forward the name and dialect of the translator or interpreter retained to assist with the ... examination under oath scheduled for March 31, 2015."
In sum, although the defendant had an implied duty to cooperate with the plaintiffs to secure their appearance at the scheduled examinations, that duty did not require the defendant to provide an interpreter which the plaintiffs never requested or to disclose before the examination, let alone as a condition of it, the results of its investigation or why the defendant reserved its rights to deny the claim. The plaintiffs’ excuse for not submitting to examination under oath based on the defendant’s failure to cooperate fails as a matter of law.
The plaintiffs claim one more excuse: that the defendant has not established, as a matter of law, that it was prejudiced by their failure to appear for the scheduled examinations. In some circumstances, the nonoccurrence of a condition may be excused if enforcing the condition would result in a disproportionate forfeiture. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413, 538 A.2d 219 (1988), overruled in part on other grounds by Arrowood Indemnity Co. v. King, 304 Conn. 179, 39 A.3d 712 (2012); 2 Restatement (Second), supra, § 225, comment (b), p. 166. For example, where an insured delays, even unreasonably delays, in giving its insurer notice of an event triggering insurance coverage, the nonoccurence of the condition of timely notice may be excused if the insurer suffered no material prejudice. Aetna Casualty & Surety Co. v. Murphy, supra, 417-18. Our Appellate Court has extended this principle to the circumstances similar to those in this case. See Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 142-43, 149-50 (extending rule announced in Murphy to case involving cooperation clause where insureds were delayed for eight months in cooperating with their insurer’s demand for examinations under oath). Although, in Taricani, the court affirmed the trial court’s grant of summary judgment for the insurer, it noted that the insureds would have had a viable claim for coverage if they had been able to establish that their delay in presenting themselves for the examinations did not result in any prejudice to the insurer. Id., 152.
Originally, under Murphy, the burden was on the insured to establish the lack of prejudice excuse. See Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 419-20. The Supreme Court has since overruled Murphy in this respect and now requires that the insurer prove that it was prejudiced. See Arrowood Indemnity Co. v. King, supra, 304 Conn. 204.
In Murphy and Taricani, the insureds merely delayed fulfilling a policy condition; they did not refuse to perform the condition. As the Appellate Court subsequently recognized in Palkimas v. State Farm Fire & Casualty Co., 150 Conn.App. 655, 91 A.3d 532, cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014), this distinction is material. In Palkimas, the insured never submitted the proof of loss required under his policy. For that reason, the insurer denied coverage. Id., 656-57. The insured then commenced an action against the insurer, alleging that the insurer breached the policy by denying coverage. Id., 657. The trial court granted the insurer’s motion for summary judgment on the ground that the insured had failed to satisfy a condition precedent of the policy, concluding that the insurer was not required to establish prejudice in light of the insured’s complete failure to submit the proof of loss. Id., 658. On appeal, the insured argued that there was a genuine dispute of material fact as to whether the insurer had been prejudiced. Id., 658-59. The Appellate Court affirmed the trial court judgment, holding that an insurer is not required to prove prejudice where the insured completely failed to file a proof of loss. Id., 659-60. The court emphasized that its decision turned on the distinction between a delay in filing a proof of loss and failure to file a proof loss, and it rejected the insured’s claim that three Connecticut Supreme Court decisions concerning delayed filing of notice of claim or proof of loss should be extended to excuse failure to file. Id., 659-60. Palkimas requires a similar result in the present case.
As a preliminary matter, the court notes that, although the present action involves a different policy condition- submitting to an examination under oath instead of filing a proof of loss- nothing in Palkimas makes this a material distinction. In Taricani, the Appellate Court applied the principle announced in Murphy - which involved a notice of claim condition- to an examination under oath provision, noting that both provisions are intended to afford the insurer a fair opportunity to investigate claims. Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 149. The provision at issue in Palkimas - a proof of loss requirement is likewise intended to facilitate the investigation of the insurer. Chauser v. Niagara Fire Ins. Co., 123 Conn. 413, 423, 196 A. 137 (1937). The court discerns no reason why the distinction discussed in Palkimas, between a delay in compliance with a policy condition and a total failure to comply, should not be applied to an examination under oath condition- and the plaintiffs have offered no reason. Thus, the only question that remains with respect to count one is whether there is any genuine, factual dispute regarding the nature of the plaintiffs’ noncompliance with the examination under oath condition.
As previously discussed, the evidence establishes that: (1) the defendant notified the plaintiffs of the scheduled examinations under oath; (2) the plaintiffs then informed the defendant by letter that they would not appear for the scheduled examinations; and (3) the plaintiffs indeed did not appear. The March 30, 2015, letter from the plaintiffs’ attorney did indicate that they might submit to examination. But the suggestion of their willingness to be examined was conditioned on the defendant disclosing information that it was not required to disclose. The plaintiffs had no right to impose such conditions before complying with their duty to submit to the examinations. Their refusal to comply until their unjustified demands were met has the legal effect of complete refusal to satisfy a condition precedent to coverage. See Morris v. Economy Fire & Casualty Co., 848 N.E.2d 663, 666-67 (Ind. 2006) (insureds breached insurance contract as matter of law by refusing to submit to examination under oath until insurer gave them copies of their previous statements, as contract did not provide that insureds could impose such conditions before complying with duties under policy); National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 518 (7th Cir. 2008) (principle in Morris v. Economy Fire & Casualty Co. casts doubt on legal basis for insured to condition his participation in examination under oath upon explanation of scope, subject matter, and length of examination).
The March 30, 2015 letter stated, in part, " until [the defendant] provides the factual good faith basis as to why [the plaintiffs’] claim is still under investigation and why there is a reservation of rights, there is no obligation on the part of the insured to participate in an examination under oath ..."
In conclusion, the defendant was not required to establish prejudice in order to prevail on its motion for summary judgment. Palkimas v. State Farm Fire & Casualty Co., supra. The plaintiffs materially breached their policy by refusing to appear for examination under oath, and they have failed to present a valid excuse for their noncompliance. The defendant is therefore entitled to judgment as a matter of law on the plaintiffs’ breach of contract claim in count one.
II
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Count two of the complaint is based essentially on the allegations in count one and claims breach of the covenant of good faith and fair dealing implied into the subject policy. The plaintiffs allege that the defendant breached this implied covenant by " engag[ing] in conduct that injured the [plaintiffs’] rights to receive" the benefits of the policy coverage they reasonably expected to receive. The only specific conduct alleged is the defendant " denying coverage of [their] claim, when such claim should have been covered under the [p]olicy." The defendant moves for summary judgment on this count on the ground that its denial of the plaintiffs’ insurance claim was justified by the plaintiffs’ failure to appear for the scheduled examinations under oath. The defendant argues that it cannot be held to have breached its duty of good faith and fair dealing by denying a claim for which, given the policy conditions, there is no coverage, and that it is therefore entitled to judgment because, by their material breach of the examination under oath provision, the plaintiffs forfeited coverage. Noting the apparent superfluity of count two (because it claims wrongful denial of the plaintiffs’ claim- the subject of count one), the court agrees.
The covenant of good faith and fair dealing that is implied in every contract requires only that neither party do anything that will injure the right of the other to receive the benefits of the agreement. Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 795, 67 A.3d 961 (2013). Consequently, the covenant is not implicated, let alone breached, by conduct that does not impair contractual rights. Id. Our Supreme Court has thus held that violations of expressed duties are necessary to maintain a bad faith cause of action. Id., 797. In the context of insurance contracts, the duty of good faith and fair dealing is an instrumental duty intended to protect the right of the insured to receive its policy benefits, and, therefore, a bad faith cause of action not tied to duties under the insurance contract must fail as a matter of law. Id., 796-97.
The plaintiffs allege that the conduct of the defendant, as asserted in count one, deprived them of the coverage to which they were entitled under their policy. On the basis of its analysis of count one, the court concludes that the plaintiffs’ unexcused, material breach of the policy’s examination under oath provision relieved the defendant of its obligation to provide coverage. The defendant thus had no duty to cover the plaintiffs’ claimed losses, and, therefore, as a matter of law, its refusal to do so did not breach the covenant of good faith and fair dealing. Accordingly, the defendant is entitled to judgment on count two.
III
VIOLATION OF CUTPA
The basis for the plaintiffs’ CUTPA claim in count three is their allegation that the defendant violated the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. (CUIPA), in handling their insurance claim. The defendant contends that it is entitled to summary judgment on this count, let alone that the defendant so acted pursuant to a general business practice. The court agrees.
Conduct by an insurance company that is related to the business of providing insurance can violate CUTPA only if it violates CUIPA. State v. Acordia, Inc., 310 Conn. 1, 27, 73 A.3d 711 (2013). Thus, unless an insurer’s conduct in the insurance business violates CUIPA (or, hypothetically, some other statute regulating specific conduct in the insurance business), the conduct cannot be found to violate any public policy and cannot be the basis for a violation of CUTPA. Id., 37. Where, as in the present case, the insured’s CUTPA claim is predicated on alleged unfair insurance claim settlement practices in violation of General Statutes § 38a-816(6), the insured is required to prove that the unfair settlement practices were committed or performed " with such frequency as to indicate a general business practice." (Internal quotation marks omitted.) Lees v. Middlesex Ins. Co., 229 Conn. 842, 847-48, 643 A.2d 1282 (1994), quoting General Statutes § 38a-816(6). Proof that the insurer committed two or more unfair claim settlement practices in relation to the same, single insurance claim is not sufficient to satisfy this requirement. Lees v. Middlesex Ins. Co., supra, 848. In other words, allegedly improper conduct of an insurer in the handling of a single insurance claim, without any evidence of misconduct by the insurer in the processing of any other claim, does not rise to the level of a " general business practice" as required by § 38a-816(6). Lees v. Middlesex Ins. Co., supra, 849.
Conduct of an insurer in matters unrelated to the insurance business, such as in the real estate business, is not subject to the State v. Acordia, Inc. limitation as to CUTPA liability.
In the present case, the plaintiffs allege, as the basis for their CUTPA claim, that the defendant violated § 38a-816(6) by " ignoring and/or not complying with [p]olicy provisions, using pretexts for denial of coverage, and handling claims based on socio-economic status and/or national origin." Even if the defendant engaged in such conduct in the handling of the plaintiffs’ claim, there is nothing in the record to suggest that it did so with respect to any other claims, whether it be a prior claim made by the same plaintiffs or a claim made by any of the defendant’s other insureds. Indeed, the record makes it quite clear that the plaintiffs lack any knowledge of what the defendant’s general business practices are. When asked during his deposition whether he knew of any facts or information that suggested that the defendant engages in the types of practices of which the plaintiffs complain as part of its regular business practice, plaintiff David Preka responded, " I don’t know anything about this company." Asked whether he was aware of or had any information about any other policy holders who had been treated similarly by the defendant, Mr. Preka responded, " I have not asked anyone about this ... I have had no reason to inquire about this." Similarly, when asked at her deposition whether she had any knowledge, or any facts or information to suggest, that the defendant engages in unfair practices as part of its general business practice, plaintiff Jody Preka responded, " I don’t know."
Specifically, the plaintiffs allege that the defendant violated several subparagraphs of General Statutes § 38a-816(6), namely, those provisions prohibiting insurers from: " (A) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; (B) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies; (C) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (D) refusing to pay claims without conducting a reasonable investigation based upon all available information ... (F) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; [and] (G) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds ..."
In their memorandum in opposition, the plaintiffs make no argument, nor point to any evidence, regarding the particular unfair practices alleged in their complaint. Rather, they assert, for the first time, that it is the defendant’s general business practice to: (1) fail to give to its insureds copies of their policies and then demand their cooperation; (2) rely on terms that are not actually in the policy; (3) refuse to communicate to its insureds any " red flags" it may have with respect to their insurance claims, despite the fact that doing so would assist it in investigating such claims; and (4) request from insureds specific information about their jewelry, despite knowing that most insureds do not possess such information, and then using that lack of information to punish the insureds. Because the plaintiffs do not plead such facts in support of their CUTPA claim, the court may not properly consider them in determining whether there is any genuine issue of material fact, for the only facts considered at issue for the purposes of summary judgment are those alleged in the pleadings. DeCorso v. Calderaro, 118 Conn.App. 617, 622, 985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010); see, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 93-94 n.9, 30 A.3d 38 (2011) (refusing to address issue of whether certain conduct amounted to prevention of performance where issue was not properly before trial court in its consideration of motion for summary judgment because plaintiff had not alleged such conduct in support of its breach of contract claim), aff’d, supra, 311 Conn. 123.
The plaintiffs’ memorandum in opposition asserts that they were told by one of the defendant’s representatives that there was a " standard procedure" for handling theft claims and by another representative that there were only " guidelines" for handling such claims. The plaintiffs do not explain how such supposed discrepancy is material to any claimed CUIPA violation. The court is not required to address issues, such as this one, that have not been properly presented and briefed. Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
IV
UNJUST ENRICHMENT
Finally, as to the plaintiffs’ unjust enrichment claim in count four, the defendant contends that it is entitled to summary judgment because the plaintiffs may not maintain such a claim in view of the existence of an express insurance contract between them and the defendant. The court agrees.
In their memorandum in opposition, the plaintiffs do not contest the general proposition of law espoused by the defendant that the existence of an express contract precludes a claim of unjust enrichment. Instead, the plaintiffs argue that the particular contract at issue in the present case is void because it was not countersigned by an authorized agent of the defendant and that the invalidity of the contract is the basis for their unjust enrichment claim. The court need not address this argument, as the invalidity of the parties’ insurance contract is not alleged in count four. Indeed, in paragraph four of count four (incorporated from count one), the plaintiffs explicitly allege that the insurance policy was in effect at the time of the burglary at their property. The plaintiffs further allege that the defendant " unjustly denied the [p]laintiffs the full insurance coverage afforded to them under the [p]olicy, and was unjustly enriched." (Emphasis added.) The plaintiffs’ unjust enrichment claim is essentially for the equitable relief of rescission- return of the plaintiffs’ premiums paid to the defendant- because of the defendant’s refusal to pay them the benefits to which they claim they are entitled under the policy. The interpretation of pleadings is always a question of law for the court. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). The invalidity of the contract is not alleged and need not be addressed. See Fisk v. Redding, 164 Conn.App. 647, 652, 138 A.3d 410 (2016) (facts at issue in ruling on motion for summary judgment are those alleged in pleadings); see also Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 132 Conn.App. 100-01 (trial court properly declined to consider whether issue of material fact existed as to whether defendants had breached agreement in bad faith where complaint did not so allege).
Under the doctrine of unjust enrichment, if justice requires that a party be compensated for property or services rendered under a contract and such contract can provide no remedy, then that party is entitled to restitution of the value of what was given. New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451, 970 A.2d 592 (2009). The obligation of the unjustly enriched party to make restitution is implied into the contract as a matter of law. Id., 454 n.25. Parties who have entered into a pertinent, expressed contract are bound by it to the exclusion of allegedly implied contract obligations that are inconsistent with what is stated in the contract. Id., 455; see, e.g., Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999) (employee could not recover from employer in unjust enrichment for its failure to pay him incentive compensation where there was expressed, enforceable employment contract that set terms of his salary and did not provide for such compensation).
In the present case, the plaintiffs’ receipt of benefits under their policy was expressly conditioned on their compliance with the policy’s examination under oath provision. As the court has already concluded, the plaintiffs materially breached this provision, and the defendant was thus entitled to deny the plaintiffs benefits. To permit the plaintiffs to nevertheless recover such benefits under a theory of unjust enrichment would therefore be inconsistent with the parties’ express contract. Consequently, the plaintiffs’ unjust enrichment claim fails as a matter of law.
For the foregoing reasons, the defendant’s motion for summary judgment on all four counts of the plaintiffs’ amended complaint is granted.
a. Give prompt notice to us or our agent;
b. Notify the police in case of loss by theft;
* * *
e. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss ... [and]
f. As often as we reasonably require: Show the damaged property; [and] Provide us with records and documents we request and permit us to make copies ...