Opinion
No. HHB CV09 5012898
December 14, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiffs bring this civil action against the defendant with whom they had a contract for homeowners insurance. They claim that their house was condemned and demolished by the City of Bristol and that the defendant is obligated but has failed to pay them for the damage. The defendant has moved for summary judgment, citing a clause in the insurance policy that excludes claims resulting from actions pursuant to ordinances or laws that regulate, among other things, demolition of property. Because there is not a material disputed issue of fact about Bristol's demolition of the property, summary judgment for the defendant is appropriate in this case.
THE FACTS
On May 7, 2008, Guy Morin, Chief Building Official for the City of Bristol, and Officer Thomas Lavigne of the Bristol Police Department inspected the property at 384 Fall Mountain Road, Bristol. The building was vacant and unsecured. It appeared to Morin and Lavigne that the property was in severe disrepair. Morin issued an emergency condemnation order, and he and Lavigne posted yellow police tape around the building. Morin also posted a Condemnation Notice on the building, which among other things, served as a notice that the building was not safe and that persons were prohibited from entering the structure.
Morin determined that the property was owned by the defendant Melanie Church Dlugokenski who had an address in Terryville, CT. On May 8, 2008, Morin sent a letter on City of Bristol Building Department letterhead to the defendant describing his findings — that the rear eastern section of the building had partially collapsed, that a portion of the floor was rotted through, that a concrete bearing wall had failed — and he notified her in the letter that the structural defects posed an imminent and immediate danger to anyone attempting to occupy the building. Morin stated that he was issuing an immediate emergency order of demolition of the structure pursuant to the Connecticut State Building Code (2005 Supp.) § 116 and 116.4. The letter invited the defendant to contact Morin with any questions. The Mayor and the Corporation Counsel of Bristol were copied on the letter.
On the same day May 8, 2008, Morin sent a letter to LaTourneau Builders describing the state of the building and confirming that he had issued an emergency demolition order under the emergency authority of the State Building Code. Morin requested LaTourneau to demolish the structure and stated that the City of Bristol would pay LaTourneau.
Thereafter Morin sent a certified letter to the defendant, return receipt requested, confirming the condemnation order, and he received a signed return receipt. Between May 13, 2008, and June 2, 2008, Morin caused the site to be abated for asbestos, cleared of its contents, and surveyed by the demolition company.
On June 11, 2008, Morin accompanied Richard Ziegler, a professional engineer retained by an insurance company, on an inspection of the property. Ziegler wrote a report agreeing with Morin's findings concerning the reasons for the condemnation order. Beginning on June 16, 2008, and ending on June 18, 2008, LaTourneau Builders demolished the structure pursuant to the direction of the City of Bristol Building Department.
In opposing summary judgment, the defendant Donald Dlugokenski has filed an affidavit, the only evidence in opposition. Donald Dlugokenski states that he has an equitable ownership interest in the property pursuant to a "life use agreement" with his ex-wife, the defendant Melanie Church Dlugokenski. He disputes that the demolition occurred solely on June 16 through June 18, 2008, but rather claims to have observed some earlier deconstruction efforts by LaTourneau Builders who were using a backhoe on the property on May 8, 2008. Donald Dlugokenski states in his affidavit that the actual demolition occurred in stages over a five-week period. He states his opinion that the City of Bristol did not follow proper procedures in issuing the condemnation and demolition orders. He does not dispute that Morin is the City of Bristol Building Official or that the demolition was accomplished pursuant to an order of the City of Bristol.
THE LANGUAGE OF THE INSURANCE POLICY
The plaintiffs claim in their civil action to be covered by a policy of insurance issued by the defendant Hartford Insurance Company. Although the complaint states that the policy is appended to the complaint, the file does not contain the policy as an appendix to the complaint and the marshal's return makes no mention of having served any such appendix with the summons and complaint. The plaintiffs have not appended to their papers in opposition to summary judgment the policy under which they claim coverage. Rather the defendant has produced a policy of insurance which the affidavit of the defendant's representative indicates was taken out by Donald Dlugokenski for the dwelling at 384 Fall Mountain Road, Bristol. That policy contains the following language on Form HO 00 03 04 91, page 8 of 18, as amended by Form HO 01 06 11 99, page 3 of 4, regarding Section I — Exclusions:
Section I — Exclusions . . . We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
1. Ordinance or Law, meaning any ordinance or law: a. Requiring or regulating the . . . demolition . . . of property, including the removal of any resulting debris.
THE LAW OF SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education. 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the moving party is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the 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). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
DISCUSSION
The plaintiffs maintain that there are two sets of material facts in dispute. The first is whether the City of Bristol followed the appropriate procedures in gaining access to the property for its initial inspections and its subsequent demolition. The second is whether the demolition occurred according to the time frame set forth in the defendant's business records that are appended to its papers in support of summary judgment. The plaintiffs also assert that LaTourneau Builders was not licensed to perform the demolition work for which it was hired by the City.
The plaintiffs have included no evidence in support of their argument that the City of Bristol failed to follow the appropriate procedures in issuing the condemnation order. Nor have the plaintiffs cited any law regarding this claim. Indeed the papers opposing summary judgment contain no legal citations of any kind. In deciding a motion for summary judgment, the court cannot credit unverified and unsupported allegations in a pleading or a memorandum of law. And the affidavit of Donald Dlugokenski makes it apparent that he is not competent to offer an expert opinion about the legality of the City's actions.
Moreover, even if it were to turn out that the City of Bristol did not follow all due process procedures in condemning and demolishing this structure — a proposition for which the plaintiffs offer no factual support — it is undisputed that the City of Bristol did, in fact, issue such an order and caused it to be carried out. There is nothing to suggest that this was done except under color of law; indeed the plaintiffs concede this in their memorandum.
More importantly, for the Ordinance or Law exclusion in the insurance policy to apply, the insurance policy does not require that all lawful procedures be followed by the governmental entity carrying out the demolition. The policy does not even say that the condemnation order must be lawful. The policy exclusion merely says that the damage must be "caused directly or indirectly" by an ordinance or law regarding the demolition of property.
As for the arguments that the structure was actually demolished over a period of weeks rather than over a three-day time frame, or that the demolition contractor was unlicensed, these are disputed facts that are not material to a decision on this motion. The undisputed fact is that the City of Bristol, rightly or wrongly, issued a condemnation and demolition order, pursuant to which the property of the plaintiffs was damaged. The insurance policy excludes coverage in such a situation.
CONCLUSION
The material undisputed facts show that the damage claimed by the plaintiffs is excluded from coverage under the insurance policy provided by the defendant. The defendant is entitled to judgment as a matter of law. The Motion for Summary Judgment is granted.