Summary
implying that the action could continue under the Connecticut Insurance Guaranty Association Act if there were additional, solvent insurers
Summary of this case from Zurich Ins. Co. v. Crowley Latin Am. Servs., LLCOpinion
No. CV 03-0825419
March 8, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is a three-count complaint against the defendant, Home Depot, Inc., sounding in product liability to recover damages from a fire at plaintiff's home allegedly caused by a pipe cleaning product sold by Home Depot and manufactured by the Oatey Company, the claimed damages approximating $700,000.
On September 5, 2003, the defendant filed this motion for summary judgment on the ground that plaintiff's claim is actually a subrogation claim against an insured of an insolvent insurer and is, therefore, barred by General Statutes § 38a-838(ff), the Connecticut Insurance Guaranty Association Act.
I
Defendant claims that no genuine issue of material fact exists because General Statutes § 38a-838(6) prohibits subrogation claims against insolvent insurers; that it is undisputed that the defendant was named as an insured on the insurance policy of Oatey, the manufacturer of the allegedly defective product; that Oatey's policy was issued by Reliance Insurance Company (Reliance); that the Commonwealth Court of Pennsylvania declared Reliance insolvent on October 3, 2001; that the plaintiff filed a claim and received insurance proceeds for the fire damage from his insurer Encompass; and that Encompass filed a law suit against Oatey but withdrew it pursuant to General Statutes § 38a-838(6).
In support of its motion, the defendant submits a number of exhibits including: the affidavit of John H. McMillan, the Executive Vice President of Oatey, accompanied by a Vendor Buying Agreement with an attached document requiring Oatey to name the defendant as an insured on its liability insurance policy with Reliance. Under the Commercial General Liability Declarations of the Reliance policy for Oatey, there is a $1,000,000 personal injury and advertising injury limit, subject to the applicable aggregate limit.
II
In opposing this motion, the plaintiff must present evidence that demonstrates the existence of some disputed factual issue. "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 252-53 (2003). A material fact is a fact which will make a difference in the result of the case. Harp v. King, 266 Conn. 747, 778 n. 36, 835 (2003). The existence of the issue of material fact must be demonstrated by counter affidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the summary judgment is appropriate, assuming that the movant has met his burden of proof. DeCorso v. Watchtower Bible Tract Society of New York, 78 Conn. App. 865, 871 (2003). When a party files a motion for summary judgment and there are no contradictory affidavits, it is proper to decide the motion by looking only to the sufficiency of the movant's affidavits and other proof. Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 795 (1995).
At oral argument plaintiff did not contest the application of General Statutes § 38a-838 but focused on his claim that there is a genuine issue of material fact as to whether the defendant has any additional policies of liability insurance, other than the Reliance policy, and that discovery is necessary to resolve this issue.
Defendant has denied that it has any other insurance and that it is self-insured for claims under $1,000,000, similar to that of the plaintiff, and refers to the affidavit of Jim Bramlett, the defendant's Director of Risk Management, which states categorically that the defendant "does not have insurance from any third party to cover any settlement, judgment and/or verdict in this case if that settlement, judgment and/or verdict is one million dollars ($1,000,000) or less. Instead, [the defendant] will have to pay such costs out of its own assets." A subsequent affidavit by Mr. Bramlett avers that the defendant "has insurance coverage through American Home Assurance Company . . . and was obtained by [the defendant] to cover losses in excess of $1,000,000" and that the defendant's "umbrella or excess insurance coverage does not apply to claims valued at or below $1,000,000."
Even when viewed in the light most favorable to the plaintiff, there does not appear to be a question of material fact as to whether the defendant possesses an insurance policy covering damages for claims under $1,000,000. Defendant has submitted clear affidavits regarding its insurance coverage which have not been contradicted by any evidence to the contrary. Plaintiff's claim of any additional, undisclosed policies of insurance must be considered as speculative.
Since General Statutes § 38a-838 bars a subrogation claim against the insured of an insolvent insured, and the action in this case is a "covered claim" and there appears to be no material question of fact to be resolved, defendant's motion for summary judgment is granted.
Wagner, JTR