Opinion
No. FST CV 11 6008598 S
June 13, 2011
MEMORANDUM OF DECISON
In this subrogation action, the plaintiff, Middleoak Mutual Assurance Company, has brought suit against the defendants, Sandra DeJesus, Onix DeJesus and Omar DeJesus. Presently at issue is the defendant's motion to strike plaintiff's complaint (#101). The plaintiff's complaint alleges the following facts that are relevant to the disposition of the motion to strike. On June 9, 2006, the defendant Sandra DeJesus entered into a one-year written lease with Michael Smeriglio and Rosa Smeriglio (the Smeriglios) to rent one unit in a two-unit building located at 598 Fairfield Avenue in Stamford. The plaintiff insurance company insured the subject premises. Sandra DeJesus resided at this location with her two sons, the co-defendants Onix DeJesus and Omar DeJesus. On June 1, 2010, the Smeriglios and Sandra DeJesus mutually agreed to extend the term of the lease and create a year-to-year tenancy. The plaintiff alleges that this "extension explicitly incorporated the terms and conditions of the original lease" dated June 9, 2006. The complaint alleges that the June 9, 2006 lease contained the following pertinent provisions:
The plaintiff's pleadings are not consistent on the spelling of the plaintiff's name. The plaintiff both spells its name as "Middleoak Mutual Assurance Company" and "Middleoak Mutual Insurance Company." This memorandum will use the spelling "Middleoak Mutual Assurance Company" because that is the spelling used on the summons, and, therefore, is the official spelling in the courthouse records.
"You [the tenant] agree to provide and pay for public liability insurance in your and our mutual benefit in an amount not less than $300,000 for bodily injury and property damage in our [sic] about the Dwelling. You will provide us with proof of such insurance." Section 4 (I).
"You [the tenant] agree to not willfully or negligently destroy, deface, damage, impair, or remove any part of the Dwelling or permit anyone else to." Section 4 (f).
"You [the tenant] will not permit any activity in the Dwelling which creates an unusual risk of fire or other hazard." Section 8.
CT Page 13123
"You will pay us all lost rent and other damages or costs we may incur because of your broken promises. These costs may include . . . the costs of redecorating or making repairs." Section 13.
The full lease between the Smeriglios and defendant Sandra DeJesus dated June 9, 2008 was not attached to the complaint. Only the above-quoted portions were alleged in the complaint.
On July 11, 2010, a fire occurred at the subject premises. Following an investigation, the Stamford assistant fire marshal determined that the defendants had used a charcoal grill the previous evening and that the fire was caused by the improper disposal of unextinguished charcoal briquettes in a trash can on the side of the building. The property suffered $179,826.61 in damages, which were paid by the plaintiff in accordance with the insurance policy between the plaintiff and the Smeriglios. As a result of these payments made to its insured, the plaintiff alleges that the Smeriglios have subrogated and assigned all of their rights of recovery to the plaintiff. Accordingly, the plaintiff's four-count complaint alleges the following causes of action: (1) breach of contract against Sandra DeJesus; (2) negligence against Sandra DeJesus; (3) negligence against Onix DeJesus and (4) negligence against Omar DeJesus.
On April 12, 2011, the defendants filed a motion to strike the plaintiff's complaint, as well as a supporting memorandum of law. The defendants move to strike the complaint on the ground that "a subrogation claim against a tenant by a landlord's insurer must allege a specific agreement between the landlord and tenant that the landlord's insurer has a right to subrogation against the tenant for the losses paid to its insured." (Emphasis in original.) On April 18, 2011, the plaintiff filed a memorandum of law in opposition to the defendants' motion. The parties appeared before the court and argued this matter at short calendar on June 6, 2011.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006).
In the memorandum of law in support of their motion to strike, the defendants argue that the plaintiff has failed to plead sufficient facts that would allow it to proceed with this subrogation action. Specifically, the defendants point to the holdings from two Connecticut Supreme Court cases, DiLullo v. Joseph, 259 Conn. 847 (2002) and Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28 (2006), where the Supreme Court disallowed such subrogation actions because there was no clear language in the lease agreement that would allow the landlord's insurance company to bring a subrogation lawsuit against a tenant. In response, the plaintiff argues that this motion to strike should be denied because it has alleged sufficient facts to establish breach of contract and negligence causes of action and that the defendants' argument is more appropriately addressed on a motion for summary judgment as opposed to a motion to strike.
In DiLullo v. Joseph, supra, 259 Conn. 847, the insurer of a leased premises brought an action against the defendant tenant for negligently causing a fire. There was no agreement between the parties that the defendant would obtain fire insurance for the premises or that the defendant would reimburse the plaintiff for any fire damage that occurred on the property. When affirming the trial court's granting of summary judgment in favor of the defendant, our Supreme Court stated that "public policy convinces us that it would be inappropriate to create a default rule that allocates to the tenant the responsibility of maintaining sufficient insurance to cover a claim for subrogation by his landlord's insurer. Such a rule would create a strong incentive for every tenant to carry liability insurance in an amount necessary to compensate for the value, or perhaps even the replacement cost, of the entire building, irrespective of the portion of the building occupied by the tenant . . . This duplication of insurance would, in our view, constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants . . . We think that our law would be better served by having the default rule of law embody this policy against economic waste, and by leaving it to the specific agreement of the parties if they wish a different rule to apply to their, or their insurers', relationship." (Citation omitted.) Id., 854.
The Supreme Court further elaborated on the scope of this rule in Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 28. In Vaszil, the plaintiff insurance company brought a subrogation action against a tenant for his negligence in causing a fire at the residential property of the plaintiff's insured. The trial court granted summary judgment in favor of the defendant because there was no language in the lease between the landlord and the tenant that expressly allowed for such an action. The Appellate Court reversed the trial court's decision, with one dissenting vote, because the terms of the parties' lease "demonstrate[d] the defendants' expectations that the tenant would be liable to the landlord for damage caused to the premises, thereby making subrogation appropriate." Middlesex Mutual Assurance Co. v. Vaszil, 89 Conn.App. 482, 484 (2005). On appeal, the Supreme Court reversed the Appellate Court. It stated that: "As the majority in the Appellate Court implicitly acknowledged, the lease in the present case does not contain the word subrogation or any other express language indicating that the plaintiff, as the landlord's insurer, had the right to proceed against the defendants for damage negligently caused to [the landlord's] property. Because DiLullo demands an express agreement between a landlord and a tenant for the landlord's insurer to bring a successful action against a negligent tenant, in her dissenting opinion, Judge Dranginis noted, `[t]hat acknowledgment alone is sufficient to affirm the judgment of the trial court. The majority, however, has scrutinized the contract to infer an agreement between [the landlord] and the [defendants] regarding subrogation. DiLullo does not permit the inference of such an agreement. At best, the lease is ambiguous as to a tenant's responsibility for damage negligently caused.'" Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 36.
The lease in Vaszil included the following relevant provisions:
"5. CARE OF APARTMENT. You will keep the [a]partment, surrounding areas and all fixtures and appliances in a clean and safe condition . . . You will not destroy or damage any part of the [a]partment . . .
"8. DAMAGE TO APARTMENT. You will not have to pay rent for any time that your use and enjoyment of the [a]partment is substantially affected because the [a]partment or the building is damaged by fire or other casualty. However, you will pay rent if you caused the damage or destruction or if you continue to occupy any portion of the [a]partment. Your rent shall be reduced by the decrease in the fair rental value of the [a]partment. If any part of the [a]partment or building is damaged by fire or other casualty, we shall have the right to cancel this lease . . .
"11. REMOVAL OF PROPERTY. When this lease ends, you will leave the [a]partment and remove all your property and the property of others and leave the [a]partment in good and clean condition and repair any damage caused by yourself or others . . .
"13. DEFAULT . . . If you do not do any of the things you promise to do under this lease, you will pay us the amount that we pay to do the things that you did not do . . .
"16. SECURITY DEPOSIT . . . If you are in default under this lease, we may use the security deposit to pay the rent or other money you owe us under this lease . . ." Middlesex Mutual Assurance Co. v. Vaszil, supra, 279 Conn. 31-32 n. 2.
As further stated by the Supreme Court: "The lease in the present case does not remotely inform the defendants that they would be liable to their landlord's insurer for any casualty fire damages to the landlord's building. It informs them neither of the need to insure only their apartment, nor of the need to obtain insurance in an amount sufficient to cover the value of the entire multiunit apartment building. Rather, the only mention of insurance in the lease is the provision prohibiting them as tenants from bringing anything into their apartment that would cause the landlord's insurance rates to increase. This provision, however, implies that the landlord has procured casualty and property insurance and, by operation of the principle inclusio unius est exclusio alterius, suggests that only the landlord is expected to carry insurance. Therefore, the lease in the present case not only fails to put a tenant on notice that the landlord's insurer has a right of subrogation for any loss benefits paid, it also neglects to put a tenant on notice that he or she should obtain insurance coverage for a catastrophic loss, in other words, a loss extending beyond the tenant's individual apartment." (Emphasis in original.) Id., 37-38. Therefore, the Supreme Court concluded that "[t]hese provisions and the reasonable inferences drawn therefrom are far from an express agreement between the landlord and tenant that the landlord's insurer has a right to subrogation for losses paid to its insured and, indeed, they compel a contrary conclusion. Accordingly, the plaintiff's reliance on these various disparate provisions or any combination thereof to create an express agreement allowing the right to subrogation by the landlord's insurer fails." (Emphasis in original.) Id., 39.
After Vaszil, a number of Superior Courts have considered subrogation cases brought by a landlord's insurance company against a tenant. In Vermont Mutual Ins. Co. v. Landy, Superior Court, judicial district of Hartford, Docket No. CV 04 4001536 (August 2, 2006, Tanzer, J.) ( 41 Conn. L. Rptr. 765), the court granted summary judgment in favor of the defendant tenant when the lease agreement provided as follows: "Tenant agrees to keep, save and hold harmless Landlord from any and all damages and liability for anything and everything whatever arising from, or out of, the occupancy by or under Tenant, and from any loss or damage arising from any fault or negligence of tenant, Tenant's agents, servants or employees, or of any failure on the Tenant's part to comply with any of the covenants, terms and conditions herein contained. Tenant, at Tenant's own expense, agrees to procure comprehensive public liability insurance protecting both the interest of Tenant and Landlord, and to furnish Landlord with certificates or memoranda of the same." (Internal quotation marks omitted.) Id., 766-67.
When interpreting this contractual language, Judge Tanzer stated that "[t]here is no express language in that paragraph that informs the defendant that it would be liable to its landlord's insurer, the plaintiff herein, for any casualty fire damages to the landlord's building. The lease does not contain any express provision of subrogation; the word `subrogation' does not appear in the lease. Further, there is ambiguity in that the landlord maintains the fire insurance and all risk insurance while the defendant is required to maintain liability insurance naming the landlord as a coinsured. As in [Vaszil] these provisions imply that the landlord has procured casualty and property insurance. Furthermore, these provisions suggest, when read in conjunction with [the subject paragraph] of the lease, which requires only that the defendant procure comprehensive liability insurance, that only the landlord will carry the property and casualty insurance . . . The portion of [the subject paragraph] requiring the tenant to procure comprehensive public liability insurance protecting both the interest of Tenant and Landlord, quoted above, does not inform the defendant of the need to obtain all risk insurance in an amount sufficient to cover casualty to the value of the entire premises. Moreover, the requirement that the tenant's liability insurance protect the interest of the landlord appears contrary to a suggestion that the landlord's insurer enjoys the right of subrogation, as the landlord might well be subject to defenses under the liability policy. The plaintiff subrogee stands in the shoes of the landlord and would be subject to the same defenses." Id., 767.
Similarly, Judge Corradino has granted summary judgment in favor of defendant tenants when the lease read as follows: "The tenant further agrees that it will at all times indemnify the landlord and save it harmless from any and all claims for injury or damage sustained upon the leased premises to the person or property of any person other than tenant unless said damage or injury be caused by or due to the negligence of the landlord and that it will at its own expense carry public liability insurance in the amount of a million dollars with such companies as may be satisfactory to the landlord. Said policies shall name the landlord as additional parties. The tenant shall provide the landlord with proof of said insurance." (Internal quotation marks omitted.) Valley Forge Ins. Co. v. Ceramic Fun Time, Superior Court, judicial district of New Haven, Docket No. CV 08 50024921 (March 25, 2010, Corradino, J.) ( 49 Conn. L. Rptr. 552, 554). As stated by Judge Corradino, "[t]he language of this clause talks of `damage upon the leased premises' not `to' the premises and it can be read as not directed at any damage caused to the landlord but to persons other than the landlord or tenant. More to the point the tenant is required to secure `public liability insurance' not property insurance. It is as if the drafter was aware of DiLullo's concern with economic waste and created the lease agreement with a recognition of the limitations of the case's holding in mind . . . Or to put it another way, even if the language of [the subject lease clause] were to be read to require the tenant to hold the landlord harmless for damage to the property, underlining the common-law right of the landlord to sue the tenant, this has nothing to do with the separate question of whether the landlord's insurer has subrogation rights." Id. Consequently, Judge Corradino granted summary judgment in favor of the defendants on both the plaintiff's negligence and breach of contract claims.
In the present case, the sections of the lease agreement that are quoted in the complaint do not contain the word "subrogation" or otherwise indicate that the landlord's insurance company would have the right to bring a subrogation action against the defendants. At most, these paragraphs indicate that the defendants needed to obtain "public liability insurance" in the amount of $300,000 for "[the tenants'] and [the landlord's] mutual benefit." Paragraph thirteen of the lease could be construed as mandating that the defendants would have to indemnify the Smeriglios. However, there is no clear language informing the tenant that the landlord's insurer would enjoy a right of subrogation. Such disclosing information is required by our Supreme Court in Vaszil. For the reasons stated above, the defendants' motion to strike the plaintiff's complaint is granted.