Opinion
CV166026303S
01-03-2018
QUANTUM OF MYSTIC, LLC v. STATE FARM FIRE & CASUALTY CO.
UNPUBLISHED OPINION
OPINION
Calmar, J.
This is a breach of contract claim alleging that the defendant insurance company failed to pay an amount due under a policy after certain property was damaged by water. The defendant moves for summary judgment on the one-count complaint on the ground that there is no genuine issue of material fact that the alleged water loss suffered by the plaintiff is excluded by the insurance policy, more specifically by the policy’s vacancy exclusion provision. The vacancy provision provides that the defendant is not responsible for water damage if the property is vacant for sixty consecutive days prior to the incident.
At the outset, it is important to note the errors which have occurred and affected the outcome of this case. First, the plaintiff did not timely respond to the defendant’s request for admissions. Notice of the request for admissions was filed on May 17, 2017. The next day, the plaintiff, confusingly and incorrectly, filed for an extension of time to respond to requests for production. This was never ruled on. Had the plaintiff filed a proper extension of time to answer the request for admissions, it would have been permitted to file answers until July 17, 2017. However, the plaintiff did not do so. The defendant filed its motion for summary judgment on July 24, 2017. The plaintiff has still not responded to the request for admissions. Second, the affidavits attached to the memorandum in opposition by the plaintiff were deficient. Only one of the three affidavits was signed and attested. The plaintiff’s attorney stated at oral argument that he showed the defendant’s attorney the full, signed affidavits. He failed, however, to submit these to the court. The one affidavit that was properly signed and notarized contradicts facts which the plaintiff already admitted, and contradicts its own interrogatory responses and document production. Finally, the plaintiff filed its opposition more than forty-five days after the filing of the motion for summary judgment pursuant to Practice Book § 17-45(b).
On July 19, 2017, the plaintiff, Quantum of Mystic, LLC (Quantum), filed a one-count revised amended complaint (operative complaint) against the defendant, State Farm Fire and Casualty Company (State Farm). The operative complaint alleges the following facts. The plaintiff owns commercial property located at 4 Hendel Drive in Mystic, Connecticut (the property). The plaintiff purchased an insurance policy from State Farm for the property, which was in force on February 27, 2015, when the property was damaged by water. The water loss is covered under the terms of the policy but State Farm has failed to adequately review and investigate the claim, has refused to pay for the damage, and has acted with willful disregard for the rights of the plaintiff in the settlement of this loss. Because of this, the plaintiff has suffered, and continues to suffer, direct monetary loss.
For clarity, the court provides the procedural background regarding the complaint. The original complaint was filed on February 29, 2016, and was composed of three counts alleging breach of contract, breach of the duty of good faith and fair dealing, and Connecticut Unfair Insurance Practices Act (CUIPA). On May 18, 2017, the plaintiff submitted an amended complaint alleging only breach of contract against State Farm. On May 22, 2017, the defendant filed a request to revise the amended complaint, and on July 19, 2017, the plaintiff filed the operative complaint.
On July 24, 2017, the defendant filed its motion for summary judgment and a memorandum of law in support with exhibits. The plaintiff filed an untimely memorandum in opposition on September 22, 2017. The defendant filed a reply memorandum on October 5, 2017. The matter was heard at short calendar on October 10, 2017.
The defendant also filed a motion to strike the affidavits attached to the plaintiff’s objection to the defendant’s motion for summary judgment.
DISCUSSION
" [S]ummary 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.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). " [I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016). " A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings ... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn.App. 450, 456, 83 A.3d 664 (2014), aff’d, 317 Conn. 46, 115 A.3d 458 (2015).
The defendant moves for entry of summary judgment on the operative complaint because it argues that there is no fact in dispute that the plaintiff’s alleged damages are excluded losses under the policy. The defendant’s position is that the policy expressly excluded water loss in the event that the property was vacant for sixty consecutive days before the loss, and that there is no factual dispute that the property was vacant. Additionally, the defendant argues that the plaintiff has admitted that the property was not under construction or renovation at the time of the loss. The plaintiff counters arguing that there exist genuine issues of material fact that the subject property was not vacant for more than sixty consecutive days prior to the loss.
In its reply brief, the defendant argues that (1) the plaintiff’s objection is untimely; (2) the plaintiff submitted sham affidavits in direct contradiction to conclusively established and admitted facts; (3) the sham affidavits submitted by the plaintiff allege facts contrary to the plaintiff’s own interrogatory responses and document production; (4) the plaintiff’s objection makes false statements of facts that have previously been conclusively established; and (5) the plaintiff cites to no Connecticut or any other binding legal authority.
" An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract ... In accordance with those principles, [t]he 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 ... Under those circumstances, the policy is to be given effect according to its terms ... When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result ...
" In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms ...... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading ... Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 37-38, 84 A.3d 1167 (2014).
" Deciding the scope of the exclusion clause involves a determination of what coverage the insured expected to receive and what coverage the insurer expected to provide as disclosed by the language of the policy ... The words of the policy must be accorded their natural and ordinary meaning ... [C]ourts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Citations omitted; internal quotation marks omitted.) Kelly v. Americo Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992).
The insurance policy provides in relevant part: " If the building where loss occurs has been vacant for more than [sixty] consecutive days before that loss occurs: (a) [State Farm] will not pay for any loss caused by any of the following even if they are Covered Causes Of Loss: i. Vandalism; ii. Sprinkler leakage, unless you have protected the system against freezing; iii. Building glass breakage; iv. Water damage; v. Theft; or vi. Attempted theft." (Emphasis added.) Def.’s Ex. A. The defendant’s position is that there are established facts before the court that show that the property was vacant for the relevant period of time required by the policy. The defendant specifically points to its request for admissions that it served on the plaintiff, which went unanswered and, in its opinion, are to be taken as admitted.
The defendant also pointed to the plaintiff’s interrogatory responses dated April 6, 2017. The relevant paragraphs from the plaintiff’s interrogatory responses are the following: " 15. Please describe any and all structural changes made to the building located at 4 Hendel Dr., Mystic and/or Stonington, Connecticut subsequent to its purchase of the property and the date(s) when those changes were made. ANSWER: The plaintiff is unaware of any structural changes made to the Property subsequent to its purchase of the Property. To that end, the plaintiff is not in possession of any documentation with regard to any structural changes made to the property subsequent to its purchase of the Property ... 19. As to any and all renovation or construction done by you at the 4 Hendel Dr., Mystic and/or Stonington, Connecticut property, please identify the engineers, architects, contractors, subcontractors and any other laborers that performed work in connection with the renovations and/or construction and please identify any contracts entered into with said engineers, architects, contractors, subcontractors, etc. ANSWER: See answer to Interrogatory # 4 and # 17 ..."
" The request for admissions is an instrument of discovery. Requests for admissions are governed by Practice Book § § 13-22 through 13-25. Section 13-23(a) mandates in relevant part that [e]ach matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter ... The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter ... A party’s response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment ... Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted ..." (Citations omitted; emphasis added; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). See also Filipek v. Burns, 76 Conn.App. 165, 168, 818 A.2d 866 (2003) (" [B]ecause the plaintiff did not respond or object to the requests for admissions, her silence should be deemed an admission of their truth and the statements admitted should be deemed conclusively proven").
In this case, the relevant paragraphs from the request for admissions are as follows: " 8. As of December 28, 2014, no tenant, whether a business entity or otherwise, occupied or conducted business from the subject premises"; " 9. From December 28, 2014 through February 27, 2015 consecutively, no tenant, whether a business entity or otherwise, occupied or conducted business from the subject premises"; " 10. From December 28, 2014, through February 27, 2015 consecutively, no leases were in effect for the subject premises"; " 12. The subject premises was vacant and unoccupied at the time of the water loss alleged by the plaintiff to have occurred on February 27, 2015"; " 14. The subject premise was vacant for the sixty (60) day period preceding February 27, 2015." Def.’s Ex. B.
On May 17, 2017, the defendant filed a notice that it had served the plaintiff with its request for admissions. The next day, the plaintiff filed for an extension of time to respond to the requests for production. This was an incorrect motion and was never ruled on. A thirty-day extension for the first time a plaintiff files for such an extension would be granted, but here, even if the court factors in a thirty-day extension to answer the request for admissions, on top of the regular thirty days, then the plaintiff would have been permitted to file answers until July 17, 2017. The defendant filed its motion for summary judgment on July 24, 2017. The plaintiff did not respond to the request for admissions and still has not done so. Pursuant to Practice Book § 13-23(a), the request for admissions are deemed conclusively admitted.
The plaintiff, in an attempt to create a genuine issue of material fact, attached three affidavits to its memorandum of law in opposition. " A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents." Practice Book § 17-45. " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). " [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). " An affidavit is defined as a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." (Internal quotation marks omitted.) Master Electric Supply Co., Inc. v. Keiser, Superior Court, judicial district of Fairfield, Docket No. CV-03-0406473-S (May 11, 2004, Dewey, J.) (37 Conn.L.Rptr. 47, 47).
Two of the three affidavits have not been signed or notarized and, therefore, the court will not consider them. The only affidavit that has been signed and notarized is that of Mr. John Zaleski, an employee of CW Contracting, LLC, which is a company hired by the plaintiff to maintain the property. This affidavit is dated September 15, 2017. The defendant served the plaintiff with its request for admissions on May 17, 2017, roughly four months earlier. (As noted the plaintiff has not responded to the request for admissions, and did not address or acknowledge its admissions in its memorandum in opposition.) The affidavit attempts to contradict the previously admitted facts, as well as sworn discovery responses. " [I]n considering a motion for summary judgment, [i]t is within the court’s discretion whether to accept or decline [to accept] ... supplemental evidence." (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, supra, 136 Conn.App. 715. The affidavit comes dangerously close to violating Practice Book § 17-48 as an affidavit made in bad faith. The defendant relied on the conclusive admissions in its motion for summary judgment, informed the court as such at short calendar, and has objected to the plaintiff’s affidavits that attempt to directly contradict the content of the admissions. For these reasons, the court will only consider the conclusive facts as established by the unanswered requests for admissions. See Larson v. Fazzino, 216 Conn. 431, 435, 582 A.2d 179 (1990) (plaintiff waived right to have requested admissions conclusively established against defendants because plaintiff failed to inform court of intended reliance on Practice Book § 239, now Practice Book § 13-23, and failed to object to evidence in direct contradiction); Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn.App. 390, 397, 899 A.2d 41 (2006) (defendant failed to respond to plaintiff’s request for admissions which were deemed admitted, and plaintiff informed court of reliance on admissions).
Practice Book § 17-48 states: " Should it appear to the satisfaction of the judicial authority at any time that any affidavit is made or presented in bad faith or solely for the purpose of delay, the judicial authority shall forthwith order the offending party to pay to the other party the reasonable expenses which the filing of the affidavit caused that party to incur, including attorneys fees. Any offending party or attorney may be adjudged guilty of contempt, and any offending attorney may also be disciplined by the judicial authority."
In light of the plain language of the policy and the unanswered request for admissions deemed admitted, there is no genuine issue of material fact that the subject property was vacant for the required sixty days under the policy, and therefore, State Farm is not liable.
Furthermore, a trial court may grant a motion for summary judgment on the ground that the opposing party failed to comply with the Practice Book by not filing an opposition within the time set forth in § 17-45. See Barile v. Lenscrafters, Inc., 74 Conn.App. 283, 286, 811 A.2d 743 (2002) (court granted defendants’ motion for summary judgment when plaintiff failed to file opposition papers in timely manner). The late filing of papers in opposition to a motion for summary judgment does not require the granting of the motion. See Martinez v. Zorich, 87 Conn.App. 766, 770 n.3, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005) (" [B]ecause the defendant did not demonstrate that the plaintiffs’ delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter, the court chose not to grant the defendant’s motion on that procedural ground"). Superior Courts have relied on Martinez to allow them discretion as to whether or not to consider late filed papers in opposition to a motion for summary judgment where no prejudice has been shown. Chamberlain v. Irving, Superior Court, judicial district of Tolland, Docket No. 4001394 (October 26, 2006, Hurley, J.T.R.); Tinian Trust Holdings v. International Paper Co., Inc., Superior Court, judicial district of Hartford, Docket No. CV-05-4007049 (August 12, 2005, Shapiro, J.). In light of the various mistakes made in this case in addition to the fact that the plaintiff’s opposition was filed late, it is this court’s discretion to not consider the plaintiff’s opposition.
CONCLUSION
For the foregoing reasons, there is no genuine issue of material fact that the subject property was vacant for sixty days prior to the water damage, and therefore, State Farm is not required to cover the loss.