Opinion
No. 126905
September 7, 2006
MEMORANDUM OF DECISION
This case involves a suit brought by the plaintiff, Audrin Desardouin, against the defendant, State Farm Fire Casualty Company, claiming a breach of contract. After a trial held on April 25, 2006, the defendant and the plaintiff filed their post-trial briefs on May 9 and May 11, 2006, respectively.
In his complaint, the plaintiff alleges, inter alia, that he is an owner of a men's retail shop and that he purchased from the defendant a policy of insurance to protect against accidents and loss of business, personal property and inventory pursuant to an insurance policy numbered 97-BA-9443-1. The plaintiff alleges further that he experienced damage to approximately 34 men's suits that rendered the suits a complete loss. It was undisputed at trial that the damage to the suits was caused by insects. The plaintiff, however, alleges that he notified the defendant of the loss, the loss was covered under the policy, and the defendant refused or neglected to make payments in accordance with the terms of the policy.
In its special defense and post-trial brief, the defendant states, inter alia, that the insurance policy language unambiguously excludes coverage for insect damage and, accordingly, judgment should enter in its favor.
The gravamen of the plaintiff's post-trial brief is that the defendant should be estopped from denying coverage because the defendant did not deliver the policy to the plaintiff and that the application for insurance should constitute the written agreement between the parties.
A plaintiff's right to recover has traditionally been based on the allegations made in his complaint . . . Modern procedure has come a long way from the day when slight variances were fatal to a cause of action. This is reflected in our rule of practice as a code state that immaterial variances shall be wholly disregarded. Practice Book § 134 [now § 10-22]. It is said we have an established liberal practice in regard to immaterial deviations from the allegations of the complaint . . . A variance in the factual aspect of a case which does not prejudice the opponent, and which does not change the theory of the cause of action, should not under ordinary circumstances be allowed to make voidable an otherwise sound judgment . . . Of course, a variance which alters the basic nature of a complainant's cause of action cannot be condoned. In other words, [a] plaintiff may not allege one cause of action and recover upon another . . .
(Citations omitted; internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., 58 Conn.App. 694, 700, 755 A.2d 293 (2000).
Accordingly, this court will only consider the evidence and testimony of the parties as it relates to the plaintiff's breach of contract claim as articulated in count one of the complaint.
On December 22, 2005, the court, Jones, J., granted the defendant's motion for summary judgment as to count two of the plaintiff's complaint alleging a violation of CUIPA and/or CUTPA.
From the evidence, including the testimony of witnesses, exhibits of the parties, and the reasonable inferences from the same, as well as taking into consideration the credibility of the witnesses, the court makes the factual findings as stated above.
Conclusions of Law
An insurance company may, pursuant to policy provisions, restrict the authority and powers of an agent, unless the company has by its words or conduct enlarged the agent's authority. O'Connor v. Metropolitan Life Ins. Co., 121 Conn. 599, 604-05, 186 A. 618 (1936); see also Peoples Savings Bank of New Britain v. T.R. Paul, Inc., Superior Court, judicial district of Hartford, Docket No. CV 97 0571700 (January 27, 2000, Beach, J.), citing Weeks v. Mutual of New York, 601 So.2d 998 (Ala.App. 1991) (life insurer not liable for misstatements of agent made outside of the agent's authority); Columbia Mutual Casualty Ins. Co. v. Ingraham, 320 Ark. 408, 896 S.W.2d 903 (1995) (oral agreement to insure by a soliciting agent is not enforceable); CT Page 16443 Fowler v. Prudential Property Casualty Co., 214 Ga.App. 766, 449 S.E.2d 157 (1994) (an agent's oral misrepresentation regarding a grace period for payment does not bind the insurer where he had no actual authority to do so and the policy clearly provided that there was no grace period); Sarnafil, Inc. v. Peerless Ins. Co., 418 Mass. 295, 636 N.E.2d 247 (1994) (where a policy is clear and unambiguous, an insured business is not entitled to rely on an agent's statement to the contrary). "Where such a provision [limiting the authority of an agent] is inserted in a policy the insured cannot bind an insurer by means of a waiver through the act of the agent beyond the authority conferred on him under the terms of the policy as so enlarged." O'Connor v. Metropolitan Life Ins. Co., supra, 121 Conn. 605.
Moreover, any oral exchange between an insurance agent and a prospective insured cannot be regarded as part of the insurance contract made between the parties. See Boston Camping Distributor Co. v. Lumbermens Mutual Casualty Co., 361 Mass. 769, 772, 282 N.E.2d 374 (1972) (where plaintiff told insurance broker that "he wanted insurance coverage from A to Z, second to none . . ." to which the broker replied that he would definitely comply, the court found that this verbal exchange looked toward the making of a contract but "cannot be regarded as part of the contract that was made"); see also Dewyngaerdt v. Bean Ins. Agency, 151 N.H. 406, 855 A.2d 1267 (2004) (where the court found, in a negligence action, that a plaintiff's request for "full coverage" did not place an insurance agent under a duty to determine a client's full insurance needs, to advise the insured about coverage, or to determine what coverage the insured should purchase).
Conclusion
In view of the foregoing, the court must find the issues in favor of the defendant and judgment enters accordingly.