Opinion
No. CV08-5004885 S
July 28, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#122)
On June 5, 2008, the plaintiff, Vale Properties, LLC, filed a two-count complaint against the defendants, All American Environmental Services LLC (All American), Courtney E. Pastor as Guarantor for All American, and Nautilus Insurance Group LLC (Nautilus). On January 12, 2010, the plaintiff filed a revised amended complaint, which is the operative complaint. The defendant Nautilus filed a motion for summary judgment and a memorandum in support on February 22, 2010. In response, the plaintiff filed a memorandum in opposition on April 12, 2010, to which Nautilus filed a reply on May 6, 2010. The matter was heard at short calendar on May 10, 2010.
DISCUSSION
"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.) Rodriguez v. Testa, 296 Conn. 1, 6, 993 A.2d 955 (2010).
"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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "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 lawn entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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.) Id., 11.
I EVIDENCE
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
"Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.2d 194 (2005). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material." (Internal quotation marks omitted.) Karwowsky v. Fardy, 228 Conn.App. 480, 485, 984 A.2d 480 (2009). The court, however, may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
Nautilus argues that the policy does not provide liability coverage for All American. Specifically, the policy clearly and unambiguously is between Nautilus and its insured, J.C. Pastor Son, providing commercial general liability coverage for J.C. Pastor Son to pay "those sums that the insured becomes legally obligated to pay as damages because of . . . property damages to which this insurance applies." Accordingly, Nautilus argues that a clear review of the declaration page identifies only J.C. Pastor Son as an insured, and nowhere in the declaration page or the policy itself is All American listed as an additional insured. In support of its motion, Nautilus submits a copy of the request for leave to amend complaint/motion to cite in new party and amended complaint of July 10, 2009, a copy of the plaintiff's revised and amended complaint of January 12, 2010, and a certified copy of the commercial policy issued by Nautilus to J.C. Pastor Son.
The plaintiff argues that Nautilus provided the plaintiff with a certificate of liability insurance which states that liability insurance coverage was being provided by Nautilus for All American, referencing the plaintiff as the certificate holder. Accordingly, the plaintiff argues that an issue of material fact exists as to whether All American was the entity insured by the defendant Nautilus. In support of its opposition, the plaintiff submits an uncertified copy of the lease between the plaintiff and All American; an uncertified copy of the certificate of liability insurance; an uncertified copy of a letter, dated April 14, 2008, from Attorney John Jowdy to Attorney William Donaldson; and two uncertified business inquiries from the Connecticut secretary of state's website.
Nautilus replies that the plaintiff has failed to support its objection to Nautilus' motion for summary judgment with admissible evidence which may be considered by the court under Connecticut law. Alternatively, Nautilus argues that All American was never a named insured and/or additional insured under the policy issued by Nautilus. Specifically, Nautilus was never requested to add All American as an insured to the subject policy, Pastor's agent never had authority to bind coverage for the subject policy, and the unauthenticated certificate of liability produced by the plaintiff does not confer liability coverage under the subject policy. In support of its reply, Nautilus submits an affidavit by Amy Nechamkin, a senior litigation specialist employed by Nautilus.
"[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.) Gianetti v. Anthem Blue Cross Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).
In the present case, as to the defendant's evidentiary submissions, the request for leave to amend complaint/motion to cite in new party and amended complaint, as well as the revised and amended complaint, are admissible as court documents. Additionally, the commercial policy is certified, and is further authenticated by the affidavit submitted with the reply brief. Moreover, because the plaintiff fails to object to any of the evidence presented by the defendant Nautilus, any objection is deemed waived and the documents are admissible within the court's discretion. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). The defendant, however, does object to any and all of the plaintiff's evidentiary submissions as none of them are properly certified, authenticated, or otherwise admissible. The plaintiff failed to file an authenticating affidavit, and merely submitted uncertified copies of the lease, the certificate of liability insurance, the letter, and the two business inquiries. Accordingly, the only evidence that may be considered by the court are the defendant's submissions in support of the motion for summary judgment.
II INSURANCE CONTRACT
"The standard of review of the terms of an insurance contract is also well settled. Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant 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 . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted." (Citations omitted; internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381-82, 713 A.2d 820 (1998).
In the present case, Nautilus issued a commercial liability insurance policy to J.C. Pastor Son bearing policy number NC-764577 with a policy period of March 14, 2008 to March 14, 2009. The insured listed on the policy was J.C. Pastor Son. There were no additional insureds listed, and no documents were submitted attempting to modify the insurance contract, as submitted, in any way. Accordingly, on the face of the insurance contract, All American is not an insured under the policy, under which the plaintiff has attempted to include the defendant Nautilus in the action. As the plaintiff's claim against Nautilus in the present action hinges on All American being its insured, viewing the evidence in the light most favorable to the plaintiff, Nautilus has met its burden of proof in demonstrating the absence of any genuine issues of material fact. Further, the plaintiff's evidentiary submissions are inadmissible and, accordingly, will not be considered by the court. As mere argument, absent evidence, cannot create an issue of material fact, the plaintiff fails to meet its burden showing the existence of a disputed factual issue.
CONCLUSION
As the defendant Nautilus has met its burden of proof in demonstrating the absence of any genuine issues of material fact and the plaintiff has failed to show the existence of any genuine issues of material fact, the court grants Nautilus' motion for summary judgment.