Opinion
No. CV 04 0072605
December 21, 2005
MEMORANDUM OF DECISION
Presently before the court is the defendant's motion for summary judgment on the complaint on the ground that there are no issues of material fact and the defendant is entitled to judgment as a matter of law, as the plaintiffs' personal property claim is limited to ten percent of the Coverage C limit in the subject insurance policy.
PROCEDURAL BACKGROUND
On April 19, 2004, the plaintiffs, John M. Zulick and Barbara Y. Zulick, filed a complaint against the defendant, Patrons Mutual Insurance Company of Connecticut The plaintiffs allege breach of the subject insurance policy in count one, and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA) and/or the Connecticut Unfair Insurance Practices Act, General Statutes § 38-815 et seq. (CUIPA) in count two.
John M. Zulick died on November 3, 2004 and the plaintiff moved to substitute Barbara M. Zulick, Executrix of the Estate, in place of the deceased. That motion was granted on August 22, 2005.
On April 29, 2005, the defendant filed an answer to the plaintiffs' complaint, denying liability in general, as well as raising two special defenses. In the first special defense, the defendant asserts that the subject insurance policy, in plain and unambiguous language, provides coverage to ten percent of the total coverage limit of $84,700.00, or $8,470.00, and that the defendant has remitted this sum. As a result, the defendant asserts that it cannot, as a matter of law, be in breach of the subject insurance policy. In the second special defense, the defendant asserts that its conduct was at all times in accordance with the advice of counsel and at no time violated CUTPA and/or CUIPA as a matter of law.
On June 6, 2005, the plaintiffs filed a motion for partial summary judgment on the defendant's first special defense. In that motion, the plaintiffs argued that the terms of the subject insurance policy were ambiguous and therefore should be construed in their favor. On August 5, 2005, the defendant filed a memorandum in opposition to the plaintiffs' motion for summary judgment with supporting documentation. In its memorandum of law, the defendant argued that the language of the subject insurance policy is clear and unambiguous concerning the extent of coverage in the present case. On August 22, 2005, this court, Riley, J., denied the plaintiffs' motion for partial summary judgment on the defendant's first special defense.
The defendant's memorandum in opposition to the plaintiffs' motion for summary judgment was filed concurrently with the defendant's present motion for summary judgment on the plaintiff's complaint.
On August 5, 2005, the defendant filed the present motion for summary judgment on the plaintiffs' complaint. The defendant's motion was accompanied by a supporting memorandum of law, as well as a copy of the plaintiffs' complaint, a copy of the subject insurance policy, the deposition testimony of the plaintiff, John M. Zulick, a copy of an insurance policy issued by New London County Insurance Company, and a property tax receipt.
The accompanying New London County Insurance Company policy and the property tax receipt are not authenticated and will not be considered on review of the present motion. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005) ("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.").
On August 19, 2005, the plaintiffs filed a memorandum in opposition to the defendant's motion for summary judgment. The plaintiffs did not include any supporting documentary evidence with the present motion. The plaintiffs incorporate into their present memorandum of law in opposition the memorandum of law they filed in support of their own motion for partial summary judgment dated June 6, 2005, including the documentary evidence accompanying that motion, which includes an affidavit of plaintiff, Barbara Y. Zulick, a copy of the subject insurance policy, and a letter from the law office of Nygren Nygren, Inc., addressed to Attorney Butera.
The copy of the insurance policy and the letter are uncertified. See supra, n. 2.
FACTUAL BACKGROUND
The following facts are undisputed. The plaintiffs own and reside on a parcel of land at 348 Lipps Road and own another parcel in close proximity at 296 Westford Road. The 296 Westford Road parcel is leased to unrelated tenants. A barn and carriage house are located on that parcel and the plaintiffs kept personal property in the structures. The plaintiffs were issued an insurance policy by the defendant and this insurance policy, the subject of the present dispute, was in effect during August 2002.
On August 27, 2002, a fire destroyed the barn and carriage house, causing a loss of $39,084.43 to the plaintiffs' personal property kept therein. Following the fire, the plaintiffs filed a claim under the subject insurance policy. In so doing, the plaintiffs complied with the requirements of the policy and in response to the plaintiffs' claim, the defendant offered $8,470.00, or ten percent of the total Coverage C limit, to the plaintiffs.
DISCUSSION Standard of Review on Summary Judgment
"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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 455-56, 870 A.2d 1048 (2005).
In the present case, the defendant moves for the summary judgment on the plaintiffs' complaint, raising two grounds. First, the defendant argues that there is no issue of material fact that the plaintiffs' personal property claim is limited to ten percent of the Coverage C limit in the subject policy of insurance. Second, the defendant argues that the present dispute regarding coverage does not constitute a violation of CUTPA and/or CUIPA as a matter of law.
In response, the plaintiffs first argue that genuine issues of material fact remain as to whether their personal property kept in the barn and carriage house were subject to the ten percent limitation. The plaintiffs next argue that genuine issues of material fact remain as to whether the conduct of the defendant relative to its treatment of similar claims violates CUIPA and/or CUTPA. Moreover, the plaintiffs argue that count two of their complaint is not ripe for summary judgment and request further discovery. See Practice Book § 17-47.
Practice Book § 17-47 provides: "Should it appear from the affidavits of a party opposing a motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as just."
Summary Judgment on Plaintiffs' First Count, Breach of Contract
As mentioned, the defendant argues that there is no issue of material fact that the plaintiffs' personal property claim is limited to ten percent of the Coverage C limit in the subject insurance policy. The subject insurance policy provides in relevant part: "We cover personal property owned by or in the care of an insured. Coverage for personal property usually on residential premises of an insured other than the insured premises is limited to 10 percent of the Coverage C limit." (Emphasis added.) The defendant argues that this language is unambiguous and means that the loss to the plaintiffs' personal property resulting from the fire in the barn and carriage house occurred on "residential premises" other than the "insured premises."
The defendant notes, and the plaintiffs do not dispute, that the "insured premises" under the subject insurance policy is 348 Lipps Road. Further, and also undisputed, is that 296 Westford Hill Road is a "residential premises" owned by the plaintiffs other than the insured premises. Regardless, the plaintiffs appear to argue that while the 296 Westford Hill Road parcel is a "residential premises," the destroyed barn and carriage house on that parcel are not included within the intended meaning of the term "residential premises." The issue presented in the present case is whether the barn and carriage house are within the contemplated meaning of "residential premises," and, therefore, subject to the ten percent limitation.
"Although [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . and, thus, ordinarily presents a question of fact when the language of the contract is clear and unambiguous, the court's determination of what the parties intended in using such language is a conclusion of law." (Citation omitted; internal quotation marks omitted.) Mount Vernon Fire Ins. Co. v. Morris, 90 Conn.App. 525, 541, cert. granted, 276 Conn. 907 (2005); see also QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001) ("It is the function of the court to construe the provisions of the contract of insurance.") "[A] contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The mere fact that a party contends otherwise, does not mandate a conclusion that ambiguity exists." (Citation omitted; internal quotation marks omitted.) Mount Vernon Fire Ins. Co. v. Morris, supra, 90 Conn.App. 541.
The term "residential premises" is not defined explicitly in the subject insurance policy.
The meaning of "residential premises" may be discerned, however, by looking to the insurance policy as a whole. See Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 705, 569 A.2d 1131 (1990) ("[A] court must interpret the insurance contract as a whole with all relevant provisions considered together.") Notably, the term "residence" is defined in the subject policy as a "one to four-family house, a townhouse, a row house or a one or two-family mobile home." Thus, the plaintiffs' contention that the term "residential premises" should be read to mean essentially the same thing as the term "residence" fails to "give operative effect to every provision in order to reach a reasonable overall result." O'Brien v. United States Fidelity Guaranty Co., 235 Conn. 837, 843, 669 A.2d 1221 (1996).
The subject policy itself employs the terms "residence" and "premises" distinctively, such as when it refers to a " residence on the Insured premises."
The plaintiffs' construction is not supported by case law. An insurance policy provision similar to the one at issue in the present case was addressed by the Supreme Court of West Virginia. See Mulledy v. West Virginia Insurance Company, 201 W.Va. 195, 197, 495 S.E.2d 566 (1997). In that case, the court rejected the plaintiff's argument that personal property located on residential premises other than the insured premises was subject to the ten percent limitation, whereas, other personal property was not so limited. Id. The court explained: "It is absurd to believe that the insurance company intended to insure property for $27,500.00 if it was on the street and exposed to the elements, but for only $2,750.00 if it was in residential premises, other than the insured premises, owned by the insured." Id. The point made by the Mulledy court is that personal property located on residential premises is more properly thought of as either entitled to ten percent of the total coverage limitation or entitled to no coverage whatsoever. If this court followed the construction advocated by the plaintiffs, it would lead to the anomalous result that personal property within a residence building owned by the insureds, other than their primary residence, would be entitled to ten percent of the total policy limit in coverage, but, for instance, the same personal properly left on the yard of that residence-building would be entitled to full coverage.
For the reasons above, the term "residential premises" is found to properly include the destroyed barn and carriage house located at the 296 Westford Hill Road parcel. Therefore, under the terms of the subject insurance policy in regards to provision Coverage C, the plaintiffs' personal property lost while on the 296 Westford Road parcel is entitled to ten percent of the total coverage limit, or $8,470.00. For the reasons above, the court grants the defendant's motion for summary judgment on the first count of the complaint, breach of contract, as there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.
As concerning the defendant's motion for summary judgment on the second count of the plaintiffs' complaint, summary judgment of the count is premature. See Practice Book § 17-47. For this reason, the count denies without prejudice the defendant's motion for summary judgment on the second count of the plaintiffs' complaint.