Opinion
CV166011084S
04-27-2018
David R. Roy v. Covenant Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Farley, John B., J.
MEMORANDUM OF DECISION
Farley, J.
In this insurance dispute involving crumbling concrete basement walls at the home of the plaintiff, David R. Roy, the defendant, Covenant Insurance Company (" Covenant" ), has moved for summary judgment on the plaintiff’s complaint. The complaint seeks a declaratory judgment requiring Covenant to provide insurance coverage for damage to the plaintiff’s basement. Covenant provided homeowners insurance coverage to the plaintiff from September 1, 2014 to September 1, 2015. Covenant denies that its policy provides coverage for the claimed loss, but moves for summary judgment on the grounds that the plaintiff failed to comply with the policy’s suit limitation provision and, alternatively, that the loss occurred prior to the inception of its policy period. The court agrees the undisputed material facts establish that the plaintiff’s suit was not commenced within eighteen months after the plaintiff’s loss as the policy requires and that Covenant is not precluded from enforcing that provision. The court therefore enters summary judgment in favor of Covenant.
FACTS AND PROCEDURAL BACKGROUND
The following material facts are either undisputed or construed favorably to the plaintiff. The plaintiff built his home in Stafford Springs, Connecticut in 1998. In the spring of 2014 he noticed some cracks on the exterior of the house on the wall underneath his chimney. He considered these cracks an " isolated" problem that could be resolved with some concrete, patch and he proceeded to repair the cracks himself. In August 2014, the plaintiff noticed more cracking, this time on the inside walls of the unfinished portion of his basement after moving some stored items that had previously obscured his view of the wall. He perceived a substantial difference between the cracking he observed earlier in the year on the outside of the wall and the interior cracks he discovered in August. He undertook to investigate this condition, which led him to conclude in September 2014 that his basement walls are deteriorating as a result of a chemical compound in the aggregate material used to mix the concrete. This condition, he alleges, will inevitably lead the basement walls to fall in and ultimately the " entire home will fall into the basement." The plaintiff proceeded to report " a claim for coverage of the loss" with Covenant on September 22, 2014. He also reported the claim to his prior insurer, Liberty Mutual Fire Insurance Company (" Liberty Mutual" ), and has a pending lawsuit against Liberty Mutual. Roy v. Liberty Mutual Fire Insurance Company, Superior Court, judicial district of Tolland, Docket No. CV-15-6009410-S. He maintains that Covenant is obligated to cover his loss pursuant to the " collapse" coverage included in the policy.
The plaintiff’s complaint alleges that he first noticed the interior cracking in August 2014. His deposition testimony is equivocal on the subject, indicating that he first noticed the interior cracking in August or September of 2014. Because the court resolves Covenant’s motion on the basis of the suit limitation provision and employs the date upon which the plaintiff reported the loss as the latest possible trigger date for that provision, it is unnecessary to address the significance of this discrepancy.
Covenant arranged for an inspection of the plaintiff’s property on October 17, 2014 and a report on that inspection was prepared dated November 15, 2014. There was no further action on the claim until plaintiff’s counsel provided Covenant with a letter of representation date June 4, 2015. Covenant acknowledged that letter on June 8, 2015, stating the file was being reviewed " for assignment to counsel." On June 22, 2015, plaintiff’s counsel inquired concerning the status of Covenant’s investigation and, in a response dated June 30, 2015, Covenant advised that it had retained counsel and all further inquiries should be directed to that attorney. On December 29, 2015 Covenant’s attorney contacted plaintiff’s counsel seeking to schedule another inspection. The record before the court indicates that a second inspection did not occur until January 1, 2017, after this litigation began. Covenant made no denial of coverage prior to the commencement of this action, nor is there any evidence that it indicated that there would be coverage.
Covenant indicates in its reply brief that the inspection was actually performed in January 2016.
The plaintiff commenced this lawsuit on July 28, 2016. His complaint alleges that " [a]t some point between the date on which the basement walls were poured and the month of September 2014, the basement walls suffered a substantial impairment to their structural integrity." The plaintiff alleges that he first learned of this substantial impairment in September 2014, shortly after the Covenant policy went into effect. He alleges that " [b]y notifying the defendant of the condition, the plaintiff made a timely claim for coverage of the loss in accordance with the terms of the homeowner’s polic[y] issued to him by the defendant." Although at the time the plaintiff commenced this suit, Covenant allegedly had " made no decision with respect to coverage," the plaintiff alleges that he " fully expect[ed] that the defendant will deny coverage for his claim."
Covenant’s policy provides that " [t]his policy applies only to loss in Section I or ‘bodily injury’ or ‘property damage’ in Section II, which occurs during the policy period." The policy also includes the following suit limitation provision applicable to Section I:
Section I of the policy provides property coverages, while Section II provides liability coverages.
No suit or action on the policy for the recovery of any claim may be sustained in any court unless all the requirements of the policy have been complied with and the suit or action is commenced within 18 months after the loss.
Covenant has moved for summary judgment claiming first that the plaintiff failed to commence this lawsuit within 18 months after the loss and, alternatively, that the loss occurred prior to the inception of its policy period. The plaintiff opposes summary judgment, arguing that Covenant’s continued investigation of the claim and its failure to issue a denial of coverage preclude its effort to enforce the suit limitation provision. Alternatively, the plaintiff argues that the suit limitation provision is ambiguous as applied to a progressive loss such as this one, because his loss is ongoing and it is reasonable to interpret the policy such that the limitation period does not begin until the loss is complete.
Covenant argues that, based on the plaintiff’s observation of the exterior cracks in the spring of 2014 and the interior cracks in August 2014, the loss could not have occurred during its policy period. The court does not reach this issue and takes judicial notice that in Roy v. Liberty Mutual Fire Insurance Company, supra, the court held that the same issue, i.e., whether the loss occurred during the Liberty Mutual policy period or during Covenant’s, was a question of fact.
DISCUSSION
I. Summary Judgment Standards
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
II. Insurance Policy Interpretation
An insurance contract is interpreted by the court according to " the same general rules that govern the construction of any written contract." (Internal quotation marks omitted.) Johnson v. Connecticut Ins. Guaranty Assn., 302 Conn. 639, 643, 31 A.3d 1004 (2011). Thus, " [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." (Internal quotation marks omitted.) Id. If the policy’s terms are " clear and unambiguous," then that language " must be accorded its natural and ordinary meaning." (Internal quotation marks omitted.) Id. If the terms of the insurance policy are " ambiguous," however, meaning " reasonably susceptible to more than one reading," then ambiguity " must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) Id. " The court must conclude that the language should be construed in favor of the insured unless it has ‘a high degree of certainty’ that the policy language clearly and unambiguously excludes the claim." Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009), citing Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992).
" 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." (Internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, 311 Conn. 29, 37-38, 84 A.3d 1167 (2014), quoting Johnson v. Connecticut Ins. Guaranty Ass’n, supra, 302 Conn. 643. " [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 796. Nevertheless, " [c]ontext is often central to the way in which policy language is applied; the same language may be found both ambiguous and unambiguous as applied to different facts ... Language in an insurance contract, therefore, must be construed in the circumstances of a particular case, and cannot be found to be ambiguous or unambiguous in the abstract ... In sum, the same policy provision may shift between clarity and ambiguity with changes in the event at hand ... and one court’s determination that a term ... was unambiguous, in the specific context of the case that was before it, is not dispositive of whether the term is clear in the context of a wholly different matter." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, Inc., supra, 41-42.
III. Covenant’s Right to Enforce the Suit Limitation Provision
" Since a provision in a fire insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance." Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189. Although Covenant’s policy is not a fire insurance policy, the rule applies with equal force to a homeowner’s policy. Holmes v. Safeco Insurance Company of America, Superior Court, judicial district of New Haven, Docket No. CV-12-6032368-S, (April 16, 2015) (60 Conn.L.Rptr. 268), aff’d 171 Conn.App. 597, 157 A.3d 1147 (2017). Nonperformance may be excused based on impossibility of performance, waiver and estoppel. Vincent v. Mutual Reserved Fund Life Ass’n, 74 Conn. 684, 51 A. 1066 (1902); Bocchino v. Nationwide Mutual Fire Insurance Company, 246 Conn. 378 (1998) (" any excuse for failing to bring an action within an insurance policy’s contractual period of limitation must have its source in contract law" ).
It is undisputed in this case that: Covenant’s policy requires that any suit or action on the policy be commenced " within 18 months after the loss" ; the plaintiff reported the loss to Covenant on September 22, 2014; and the plaintiff commenced this action on July 28, 2016, more than 18 months after he reported the loss. If it is presumed that the loss had occurred at or prior to the time the plaintiff reported it, and that there is no valid excuse for the plaintiff’s failure to comply with the terms of the suit limitation provision, that contractual condition bars the plaintiff’s claim and requires the entry of summary judgment in favor of Covenant. The plaintiff, however, challenges the notion that the plaintiff’s awareness of a loss triggers the suit limitation provision under circumstances involving progressive property damage. He also maintains that Covenant’s investigation and its failure to issue a denial of the claim prior to the alleged expiration of the suit limitation period bars the enforcement of that provision.
In support of his argument that Covenant’s continued investigation of the claim and its failure to issue a denial of the claim precludes enforcement of the suit limitation provision, the plaintiff relies upon Tufaro v. Allstate Property & Casualty Insurance Company, Superior Court, judicial district of Fairfield, Docket No. CV-08-5014934-S, (May 14, 2010) (50 Conn.L.Rptr. 102) and Roy v. Metropolitan Property and Casualty Insurance Company, 98 Conn.App. 528, 909 A.2d 980 (2006). In Roy, the plaintiff made a claim for damage to her dwelling and to her personal property following a firearm explosion in her home on December 15, 2001. The defendant insurance company sent a letter to the plaintiff telling her that her personal property claim was not covered and enclosing a check for the " undisputed" damages to the dwelling. The plaintiff submitted an affidavit stating she inferred from this letter that the company had yet to make a determination as to any disputed claims. She also received another letter from the defendant, after the suit limitation period had expired, indicating that the defendant was still investigating the claim. The court held these facts raised a triable issue whether the defendant had " waived its right to enforce the one-year limitation provision in the policy." Id., 533.
In Tufaro, the court denied summary judgment sought on the basis of a three-year suit limitation provision in an automobile insurance policy. The plaintiff’s claim for uninsured motorist benefits remained open when the limitations period expired, although the defendant had told the plaintiff six months after the accident that it was " still investigating whether the other vehicle was uninsured, but, that if Allstate determined that it was uninsured, then the uninsured motorist will probably kick in." The claim was the subject of numerous contacts between the plaintiff’s attorney and Allstate concerning her ongoing medical treatment and, five days before the limitations period expired, Allstate contacted the attorney looking for a final medical report and disability rating. The report and rating finally came from the plaintiff’s physician two months after the limitations period expired and, subsequently, Allstate asserted the suit limitation provision as a defense to the plaintiff’s lawsuit seeking uninsured motorist benefits. The court denied summary judgment, citing Roy for the proposition that " where there is evidence that an insurer is still investigating a claim and evidence that the insurer did not reject the claim within the time limit for filing suit, a genuine issue of material fact exists as to whether the insurer waived its right to enforce the time limit." Acknowledging this " seems to be a thin reed on which to rest a claim of waiver," the court cited support from " an authoritative treatise," 17 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 238.67, p. 238-93 (" Couch" ). Id.
These cases, particularly Roy, provide some foundation for the view that a mere failure to deny a claim within the suit limitation period might be sufficient to establish an implied waiver of the suit limitation provision. The plaintiff in this case goes even further, citing Couch, arguing that a denial of a policyholder’s claim within the suit limitation period is prerequisite to an insurer’s assertion of the suit limitation provision as a defense. The difficulty with the plaintiff’s position is that, while it may reflect the view of some courts in other states, as portrayed in Couch, it is not consistent with Connecticut Supreme Court decisions on this subject. In Boyce v. Allstate Insurance Company, 236 Conn. 375, 673 A.2d 77 (1996), for example, the defendant had continued to investigate a fire loss after the suit limitation period expired and did not formally deny the claim until long after that date had passed. The court first held that a non-waiver provision in an insurance policy is not dispositive of the question whether there may be a valid excuse for non-compliance with the suit limitation provision short of an express waiver. Id., 383-85. The court went on to conclude, however, that the facts of the case were insufficient to support a claim that the insurer was equitably estopped from asserting a defense based on that policy condition. If the bright line rule advanced by the plaintiff applied in Connecticut, the court could not have reached this conclusion in Boyce. Instead, Boyce required evidence supporting a theory of equitable estoppel in order to avoid the effect of a suit limitation provision in an insurance policy. See also Hanover Insurance Company v. Fireman’s Fund Insurance Company, 217 Conn. 340, 351-52, 586 A.2d 567 (1991) (failure to respond to demand prior to expiration of suit limitation period was not a basis for estoppel); Mendoza-Molostvov v. Vigilant Insurance Company, 392 F.Supp.2d 254 (D.Conn. 2005) (" an insurance company’s denial of a claim after the one-year limitations period has passed does not act as a waiver of the limitations clause or as a basis for estoppel against the insurance company’s enforcement of the clause" ); Knapp v. New London County Mutual Insurance Company, Superior Court, judicial district of New Haven, Docket No. CV-12-6034028-S (June 1, 2015) (60 Conn.L.Rptr. 203) (insurer’s participation in settlement negotiations is not a basis to estop the insurer from enforcing a suit limitation provision).
There is no argument that Covenant made an express waiver of the suit limitation condition in this case and no evidence in the record to support such an argument. In light of Boyce, however, there is also no merit to Covenant’s argument that the non-waiver provision in its policy precludes the plaintiff’s assertion of an implied waiver or estoppel in this case.
While there can be an analytical distinction drawn between implied waiver and estoppel, the two " are so similar that they are nearly indistinguishable." Hanover Insurance Company v. Fireman’s Fund Insurance Company, 217 Conn. 340, 351-52, 586 A.2d 567 (1991).
" We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury ... Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotations and citations omitted.) Boyce v. Allstate Insurance Company, supra, 236 Conn. 385-86.
In this case, what Covenant did was investigate the claim without ever issuing a denial of coverage within the suit limitation period. There is no evidence, however, that Covenant made any representations that would tend to lead the plaintiff to believe the claim would be paid or that Covenant would not require compliance with the suit limitation provision. The only information conveyed to the plaintiff by Covenant was that the matter was being referred to Covenant’s counsel. Although plaintiff’s counsel periodically inquired about the claim, there is no evidence that either he or the plaintiff ever asked Covenant whether compliance with that provision would be required. Covenant’s silence on these issues does not establish a basis upon which estoppel may be claimed. " It is well settled that silence will not operate as estoppel absent a duty to speak." Hanover Insurance Company v. Fireman’s Fund Insurance Company, supra, 217 Conn. 350; Boyce v. Allstate Insurance Company, supra, 236 Conn. 386-87. The mere fact that Covenant investigated the claim is insufficient to raise an inference that, by doing so, it intended to lead the plaintiff to believe it would not require compliance with the policy conditions, including the suit limitation provision.
Even if merely investigating the claim were sufficient to raise an issue of fact as to Covenant’s intent, there is no evidence that the plaintiff actually relied upon Covenant’s inspection activities, or its silence, to forbear from bringing suit within the limitation period. There is no affidavit and no deposition testimony submitted to take this proposition beyond the realm of pure speculation. It is essential for an estoppel not only that the estopped party " do or say something ... the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." Novella v. Hartford Accident & Indemnity Company, 163 Conn. 552, 563, 316 A.2d 394 (1972). Here there is no evidence that the plaintiff’s failure to bring suit in a timely fashion was influenced by Covenant’s investigation of the claim. In fact, when he did file suit the plaintiff did not allege he had been under the impression that Covenant would deny his claim. He alleged that he " fully expects that the defendant will deny coverage for his claim."
Moreover, none of the communications between Covenant and plaintiff’s counsel reflect any attempt on the plaintiff’s part to find out whether Covenant was going to require compliance with the suit limitation, or even whether it was going to accept or decline coverage. The communication reflects only a recognition on the plaintiff’s part that the claim was in the " investigation stage" and that " little in the way of substantive investigation" had actually taken place between September 2014 and June of 2015. There was a request for inspection by Covenant on December 29, 2015 and no evidence of what took place between that time and the expiration of the 18-month limitations period, at the latest, on March 22, 2016. " [I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotations and citations omitted.) Boyce v. Allstate Insurance Company, supra, 236 Conn. 385-86. The plaintiff was represented by an attorney who was in contact with Covenant and its attorney many months in advance of the expiration of the suit limitation period. Yet there is no evidence that any effort was made to discern Covenant’s coverage position before the limitations period expired, nor any evidence that the plaintiff attempted to find out whether Covenant would require compliance with the suit limitation condition. The only evidence on these issues is that when he did file suit, in the absence of any indication from Covenant, the plaintiff " fully expect[ed]" Covenant would deny the claim. No claim of estoppel can proceed on this record. Id.; Voris v. Middlesex Mutual Assurance Company, 297 Conn. 589, 603 n.10, 999 A.2d 741 (2010); Hanover Insurance Company v. Fireman’s Fund Insurance Company, supra, 217 Conn. 350; Novella v. Hartford Accident & Indemnity Company, supra, 163 Conn. 563.
See Section IV below.
The court concludes there is no genuine issue of material fact underlying the plaintiff’s claim that Covenant is precluded from enforcing the suit limitation provision in its policy.
IV. Application of the Suit Limitation Provision to Progressive Property Damage Claims
The plaintiff maintains that the suit limitation provision is ambiguous as applied to these circumstances and that it should be construed in his favor to conclude that his suit is timely. The plaintiff relies upon Strauss v. Chubb Indemnity Insurance Company, 771 F.3d 1026 (7th Cir. 2014) in support of this position. In Strauss, a defect in the plaintiffs’ home that was present from the time the home was constructed in 1994 allowed water to infiltrate and damage the home. The defendant insured the home from 1994 to 2005, but the damage was not discovered until October 2010. The plaintiffs brought suit in October 2011, within one year after they discovered the damage. The defendants’ policies only covered " occurrences that take place while this policy is in effect" and required that any action on the policy be commenced " within one year after a loss occurs." The dilemma for the plaintiffs was that proving the loss occurred sometime between 1994 and 2005 would appear to make it impossible to claim they were in compliance with the suit limitation provision. The court, applying Wisconsin law, concluded both that the loss occurred within the defendant’s policy periods and that the suit limitation provision was ambiguous " as applied to a progressive loss and can entirely reasonably be interpreted to mean after a loss completes." Id., 1035.
The plaintiff also relies upon this court’s instructions to the jury in Musgrave v. Twin City Fire Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-15-6009840-S (November 7, 2017) (Transcript of Proceedings), wherein the court followed the Seventh Circuit’s decision in Strauss when instructing the jury on a similar suit limitation provision. It was acknowledged by the plaintiff in Musgrave, however, that in light of the court’s application of a manifestation trigger of coverage in that case, without this instruction on the suit limitation a directed verdict would have been required. The court reserved decision on the defendant’s motion for directed verdict and would have had to revisit this instruction in the event that the jury returned a plaintiff’s verdict in Musgrave . The jury returned a verdict for the defendant, however, avoiding the necessity of rendering a final ruling on this issue.
The first issue addressed by the court in Strauss was whether the defendant’s policies were triggered at all by the plaintiffs’ loss. The defendant argued that a " manifestation" trigger of coverage applies to first-party property damage claims, such that the loss is said to occur at the time it is discovered or reasonably should be discovered (becomes " manifest" ), and the policy issued by the insurer on the risk at the time of manifestation is the only policy that must respond to the loss. If the court adopted this theory, the plaintiffs’ suit would have been timely but not covered under the defendants’ policies. The plaintiffs argued that a " continuous" trigger theory should apply, such that " all policies in effect from the time the loss begins to the time the loss manifests owe coverage." Id., 1030. The court adopted the plaintiffs’ trigger position, relying on the policy’s definition of " occurrence," which included a statement that " [c]ontinuous or repeated exposure to substantially the same general conditions unless excluded is considered to be one occurrence." Id., 1032-33. This left the unresolved question, however, how the loss could have occurred at least six years prior to the commencement of suit and the plaintiffs could also be found in compliance with the one-year suit limitation provision.
The Strauss court concluded the plaintiffs’ lawsuit was timely because the language of the suit limitation was ambiguous as applied to a progressive loss. The policy required that a suit be filed " within one year after a loss occurs." The court contrasted that language with the language contained in Wisconsin’s statutory standard fire insurance policy, which requires the commencement of suit " within 12 months after the inception of the loss," language the defendant opted not to use. By not specifically triggering the provision with the " inception" of a loss, the court found the provision could reasonably be interpreted to require the commencement of suit within one year after the loss is " complete," or in the case before it, " at any point up until a year after that water infiltration damage halted." Applying this logic to the plaintiffs’ claim in this case, Covenant’s suit limitation provision would not be triggered until the plaintiff’s house literally falls into a pile of rubble.
The contrast drawn between the policy language in Strauss and Wisconsin’s statutory fire insurance policy language may also be drawn in Connecticut because the corresponding suit limitation language contained in Connecticut’s statutory fire insurance policy is required for a homeowner’s policy such as Covenant’s. General Statutes § 38a-308(b). Even so, the circumstances of this case are not analogous to the circumstances in Strauss where it was necessary to reconcile the court’s trigger of coverage analysis with the suit limitation provision. No such reconciliation is necessary when a manifestation trigger of coverage is employed in the context of a progressive first-party property damage claim. Where the loss is understood to occur simultaneously with its manifestation, the progressive nature of the loss does not implicate the dilemma confronted by the policyholder in Strauss where the court held a loss can occur under circumstances where a reasonable policyholder would be unaware of it.
The standard suit limitation contained in General Statutes § 38a-307 and in effect when Covenant issued its policy to the plaintiff required that suit be commenced " within eighteen months next after inception of the loss."
This court has previously determined that a manifestation trigger of coverage applies to first-party progressive property damage claims for crumbling concrete. Musgrave v. Twin City Fire Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-15-6009840-S (November 7, 2017) (Transcript of Proceedings); see also Kowalshyn v. Excelsior Insurance Company, United States District Court, Docket No. 3:16-cv-00148 (JAM) (D.Conn. February 13, 2018) (declining to apply a " multiple injury trigger" to a crumbling concrete claim); Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal.3d 674, 798 P.2d 1230 (1990); Mangerchine v. Reaves, 63 So.3d 1049 (La.App. 1 Cir., 2011), rehearing denied; C. Lantz, " Triggering Coverage of Progressive Property Loss: Preserving the Distinctions Between First-And Third-Party Insurance Policies," 35 Wm. & Mary L.Rev. 1801 (1994); D. Grand, " Nailing Down Occurrence Triggers for Property Damage in the Wake of Redevelopment- Why a Distinction Should Be Made Between First- and Third-Party Policies," 68 La. L.Rev. 605 (2008).
In this case the plaintiff certainly knew his loss had occurred by the time he actually reported the loss to Covenant and Liberty Mutual. He reported the loss weeks after the commencement of Covenant’s policy period, not years after the policy had expired. Moreover, he characterizes his loss under the Covenant policy’s coverage for collapse as a " substantial impairment of structural integrity" that occurred " at some point between the date on which the basement walls were poured and the month of September 2014." Even under the " multiple injury trigger" of coverage advocated by the plaintiff and described in his brief, the policies triggered are those in effect from the time of first exposure to the time of manifestation. See Security Insurance Company of Hartford v. Lumbermen’s Mutual Casualty Company, 264 Conn. 688, 697 n.12, 826 A.2d 107 (2007). The last policy arguably triggered in this case would be Covenant’s. Under the circumstances, construing the facts most favorably to the plaintiff, there appears to be no uncertainty as to the latest date upon which the plaintiff may be said to have suffered a " loss" - when he reported the loss to his insurers. Even if the damage gets worse as time goes by, there would be no further losses based on the progressive damage being done to the plaintiff’s home, if it is accepted that the plaintiff has already suffered a loss, as he alleges. See Brown v. State Farm Fire and Casualty Company, 150 Conn.App. 405, 413-14, 90 A.3d 1054, cert. denied, 315 Conn. 901, 104 A.3d 106 (2014) (a loss that is certain to occur or has already occurred is not fortuitous and thus not insurable).
With these circumstances in mind, the court considers the terms of the Covenant policy and specifically the language of the suit limitation provision. The precise question raised is whether the policy is reasonably susceptible to an interpretation that, despite the insured’s awareness that a loss has occurred, where the damage is continuing no suit need be filed until eighteen months after the damage is complete. This question must be considered keeping in mind that " limitation periods on suits are designed to promote justice by preventing surprises through revival of stale claims, to protect defendants and courts from handling matters in which the search for the truth may be impaired by loss of evidence, to encourage plaintiffs to use reasonable and proper diligence in enforcing their rights, and to prevent fraud ..." Voris v. Middlesex Mutual Assurance Company, supra, 297 Conn. 599-600, quoting Zieba v. Middlesex Mutual Assurance Company, 549 F.Supp. 1318 (D.Conn. 1982).
The fact that the Covenant policy, unlike the statute, fails to distinguish between the " loss" and the " inception of the loss" seems more clarifying than confusing. Construed literally in circumstances such as those presented here, " inception of the loss" could mean the suit limitation period was triggered at the time of first exposure when the concrete was poured. Yet the insured was unaware of the loss for twenty years. Alternatively, under an " injury in fact" trigger of coverage the loss may have incepted at some undeterminable point between 1994 and 2014 when, as alleged, the plaintiff’s basement walls reached a state of " substantial impairment of structural integrity." Even under a manifestation theory, " inception of the loss" might be construed to mean something different than the date of manifestation. Thus, under " inception of the loss" language, there can be uncertainty over when the " loss" occurs and that may implicate potential incongruities between the trigger of coverage and an insured’s duties after a loss, such as the obligation to provide notice. Those problems are avoided, however, in the absence of the " inception of the loss" language, particularly when a manifestation trigger of coverage theory is applied to progressive property damage claims. Even though damage may occur over a lengthy period of time, the loss does not occur, and the insured’s duties after loss are not triggered, until a reasonable policyholder knows or should know that damage has taken place and the insurance company should be informed that a loss has occurred. At that point, the purposes underlying the suit limitation provision are implicated and the policyholder is fully capable of complying with that condition.
Under a " continuous" or " multiple injury trigger" things become even more confusing because loss has occurred under multiple policies, each with its own suit limitation provision.
The plaintiff has identified no cases from any jurisdiction, other than Strauss, that have construed the suit limitation provision in the manner in which the Strauss court did. The only court to address the Strauss court’s decision on the suit limitation provision distinguished it under policy language and circumstances that are not present in this case. B.S.C. Holding, Inc. v. Lexington Insurance Company, 625 Fed.Appx. 906 (10th Cir. 2015). It is even more significant, however, that the plaintiff’s interpretation of the suit limitation provision in this case would potentially lead to the filing of lawsuits years and perhaps decades after a loss is reported, rendering the suit limitation provision virtually meaningless. The court does not find the suit limitation to be ambiguous on its face or under the circumstances of this case. At a minimum, once an insured actually reports a loss, the insured’s obligations with respect to that loss are triggered. This includes the commencement of suit within eighteen months, which the plaintiff in this case did not do.
It is unnecessary in this case to distinguish between the date of manifestation and the date the loss was reported because it does not impact the outcome. That distinction, however, could be significant under different circumstances.
CONCLUSION
Based on the foregoing discussion, the court concludes that Covenant is entitled to summary judgment based on the plaintiff’s failure to comply with the suit limitation provision. Judgment shall enter accordingly.