Opinion
FSTCV166027990S
11-07-2016
Sally Kellogg v. Middlesex Mutual Assurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Donna Nelson Heller, J.
The plaintiff Sally Kellogg commenced this action, returnable March 29, 2016, against the defendant Middlesex Mutual Assurance Company. In her seven-count amended complaint, filed April 14, 2016 (#102.00), the plaintiff asserts claims for breach of contract (first count); breach of the covenant of good faith and fair dealing (second count); negligence in settling claim (third count); violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., arising from a violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. (fourth count); negligent infliction of emotional distress (fifth count); promissory estoppel (sixth count); and violation of CUTPA, arising from the defendant's conduct in the sale and administration of the insurance policy at issue.
On April 27, 2016, the defendant filed a motion to dismiss, together with a supporting memorandum of law (#103.00; #104.00). The plaintiff filed a memorandum of law in opposition to the motion to dismiss on May 24, 2016 (#105.00). The defendant filed a reply memorandum on June 3, 2016 (#106.00).
The parties were before the court on the July 11, 2016 short calendar. The court heard argument from counsel and reserved decision at that time. For the reasons set forth below, the defendant's motion to dismiss is denied.
I
The plaintiff alleges the following in the first count of her amended complaint, for breach of contract: The plaintiff is the owner of an historic house located at 4 Lewis Street, in the Green Historic District, in Norwalk, Connecticut. The house was a Greek Revival style, single-family residence, built around 1846. It had 3, 423 square feet of total living area, with a 439 square foot open porch. The house was maintained as an historic house and listed on the National Registry of Historic Places. It was owned by members of the same family, remaining in its original condition, except for some minor items, until the plaintiff purchased it on May 30, 2002. The plaintiff occupied the house as her home thereafter until the casualty loss described below.
The plaintiff purchased a " Restorationist" insurance policy (the policy) on the house and its contents from the defendant when she bought the house on May 30, 2002. The policy provided unlimited coverage for damage to the house, without deduction for depreciation. The policy also covered damage to the contents of the house, including furniture, clothing, and personal items, in the amount of $641,500 and loss of use. The policy was renewed annually. It was in effect on March 13, 2010, the date of loss.
Shortly after the plaintiff purchased the policy, the defendant sent an antique home specialist to inspect the house. Following the inspection, the specialist sent a letter, dated August 28, 2002, which identified the historic and unique built-in features of the house. The letter enclosed a pamphlet and brochure describing the Restorationist insurance policy, which provided that any casualty loss would be adjusted so as to restore the property to its historic condition--i.e., that the " goal is to make it like old again."
During a severe storm on March 13, 2010, a large tree fell against the house, breaking in the middle and landing across the entire roof. The tree penetrated the roof in several places, causing extensive water damage and spreading dirt, dust, grime and debris throughout the house. The house was damaged from the roof to the first floor. The foundation was undermined, and much of the contents of the house was damaged. As a result, the house was uninhabitable, forcing the plaintiff to live elsewhere until sufficient repairs were completed and the contents repaired or replaced.
The plaintiff reported the casualty loss to the defendant. The defendant sent one or more adjusters to the house. Partial temporary repairs were made to the house, and some minor cleaning was provided.
The defendant's adjuster and a representative of an environmental testing company, engaged by the defendant, caused further loss and damage when they poked holes in the original ceilings of the house, which contained asbestos. By making holes in the ceiling, they allowed the asbestos to be released and spread throughout the house. They did not patch the holes adequately and they failed to clean or contain the asbestos that they released.
In accordance with the policy, the plaintiff submitted a proof of loss for the damage to the house only, in the amount of $1,695,746, on November 1, 2011. The plaintiff submitted a proof of loss for the contents of the house and personal property, in the amount of $411,366, on November 10, 2011.
The plaintiff alleges that the defendant delayed in adjusting and paying the plaintiff's claim for damage to the house for several reasons. It failed to recognize its obligation to restore the house as an antique, historic house and provided adjusters who were unfamiliar with the reconstruction and restoration of such a house. It refused to recognize structural damage. It refused to rebuild the roof to its historic specifications, instead suggesting a roof design that used modern construction and was not compatible with the original design. It failed to restore the chimney; failed to engage an architect or engineer to restore or " square" the building that had been dislodged by the falling tree; failed to provide for restoration of the foundation; failed to take into account asbestos damage throughout the house; failed to consider other locations of asbestos; and failed to adequately provide for the removal of lead paint. It allowed the interior of the house to deteriorate by not promptly and adequately providing for repairs. It made inadequate offers of as low as $70,000 for restoration of the house, despite estimates submitted by the plaintiff in excess of $1,500,000. It required the use of non-historic material and methods to repair the damage. It made multiple inadequate monetary offers notwithstanding clear information concerning structural and physical damages and the cost of repair, replacement, and restoration, and, in general, it did not adjust or pay the claim in accordance with the policy. In addition, the defendant stopped paying the rent for the plaintiff to live elsewhere. It arbitrarily denied further payment for loss of use and occupancy.
The adjustment and payment of the claim for the loss of personal property and contents was also delayed because the defendant failed to adequately and properly provide for the cleaning and restoration of clothing and other porous materials; refused to account for the likelihood of asbestos contamination, rendering some personal property useless; denied the plaintiff access to the house due to the asbestos for a period of time, preventing the development of an adequate inventory; refused to pay for the disposition of clothing and other porous personal property which had a propensity to contain asbestos or were otherwise damages; failed to pay for contents, including personal property, draperies, rugs, pictures, cloth furnishings, clothing, bric-a-brac and the like; and failing to adequately compensate the plaintiff for the loss of her personal property and the contents of the house.
The defendant invoked the appraisal arbitration process under the policy on January 11, 2012. Each party appointed an appraiser, and an umpire was appointed. The appraisal arbitration process included the repair, replacement, and restoration of the house and the personal property and contents.
After several months, an appraisal arbitration award (the award) was issued in two separate documents. The award with respect to the damage to the house was in the amount of $578,587.64 for the replacement or restoration costs, reduced to $460,170.16 for the actual cash value loss to the building after depreciation. The award for the contents and personal property was $79,731.68 for the actual cash value loss.
The plaintiff alleges that the award was inadequate in several respects: it failed to provide for repair and restoration of the house, an historic home; it failed to carry out the terms of the policy; it failed to award the replacement or restoration cost of the house; it failed to provide adequately for the removal of asbestos and lead paint; it deducted depreciation from the award; it failed to provide for historic restoration in a number of respects; it failed to award for an upgrade of electric service to comply with the building code; it failed to provide any or adequate compensation for the replacement and restoration of numerous rooms in the house; it omitted several items of loss or damage; it failed to provide for the repair of the fireplaces in the house; it failed to provide for repair of the foundation; it failed to provide for the cleaning, restoration or disposal of personal property significantly damages by asbestos, dirt, water, dust, grime, and debris; it failed to pay for the cost of replacement of the contents; and it failed to compensate the plaintiff adequately for her loss.
On September 18, 2013, the plaintiff filed an application to vacate the award, styled Sally Kellogg v. Middlesex Mutual Assurance Company--Middletown, CT, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-13-6019847-S. A court trial on the plaintiff's application to vacate the award commenced on September 22, 2014. On February 5, 2016, following an eight-day trial, the court (Tierney, J.T.R.) vacated the award and remanded the matter for a new arbitration hearing in accordance with the terms and conditions of the policy. The defendant appealed the decision to the Appellate Court on February 19, 2016. While the appeal is pending, the plaintiff is left with a severely damaged house, that she cannot occupy, and no ability to repair and restore it. The contents of the house have been in containers in the rear of the property since March 13, 2010, the date of loss.
In her application, the plaintiff claimed that the appraisal arbitration award was the result of the appraisal arbitration panel's imperfect performance of its duties in the following respects: the award failed to address all of the losses that the plaintiff sustained; the award imperfectly applied the wrong standard under the policy by making substantial deductions for depreciation; the award was not completed within the time permitted by statute; and the award decided matters outside the scope of the submission. The plaintiff also claimed that the appraisal arbitration panel failed to make a mutual, final, and definite award and otherwise conducted its duties in a manner contrary to law. Sally Kellogg v. Middlesex Mutual Assurance Company--Middletown, CT, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV13-6019847-S (#100.31).
As set forth in the memorandum of decision, the court found that the two majority arbitrators completely failed to recognize the historic nature of the house and manifestly disregarded the nature and terms and conditions of the policy, thus committing " action by which the rights of any party has been prejudiced" in violation of General Statutes § 52-418(a)(3). The court also held that the two majority arbitrators ignored governing legal principles and manifestly disregarded the law in violation of General Statutes § 52-418(a)(4). The court vacated the award on both grounds. Sally Kellogg v. Middlesex Mutual Assurance Company--Middletown, CT, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-13-6019847-S (Feb. 5, 2016, Tierney, J.T.R.) (#102.02) .
The appeal in the matter of Kellogg v. Middlesex Mutual Assurance Company--Middletown, CT, AC 38920 was transferred from the Appellate Court to the Supreme Court on October 18, 2016. It is presently pending before the Supreme Court. Kellogg v. Middlesex Mutual Assurance Company--Middletown, CT, SC 19803.
The plaintiff alleges that as a result of the defendant's continuing breach of the policy, she has suffered significant damages, including, but not limited to, the inability to occupy the house for more than six years; the inconvenience and loss of use of the house, which has forced her to live elsewhere; the inability to repair, restore, and replace the house and its contents due to the inadequacy of the award; the payment for certain items to the mortgagee or its representative without requiring that the funds be used for repair, replacement or restoration of the house; and the loss of her clothing, draperies, rugs, pictures, cloth furnishings, bric-a-brac and other personal property. The plaintiff has also sustained damages for the out-of-pocket costs she incurred in the adjustment process; the loss of government assistance and grants that could have been used to restore certain historic features of the house; the damage to her professional reputation as an interior designer; and the emotional distress caused by the years of delay in the process, which has left her homeless and unable to carry on her profession as an interior designer. In addition, the losses and damages and the interference with her interior design business caused the plaintiff to default on her mortgage, resulting in a mortgage foreclosure action, all to her further loss, damage and detriment.
In the second count of the amended complaint, for breach of the covenant of good faith and fair dealing, the plaintiff incorporates by reference the allegations of the first count and alleges that the defendant is in breach of its implied promise to perform the insurance contract and adjust the plaintiff's loss in good faith and with fair dealing toward the plaintiff.
In the third count of the amended complaint, for negligence in settling her claim, the plaintiff incorporates by reference the allegations of the first count and alleges that the defendant was negligent in administering the terms and conditions of the policy and failed to act with reasonable care under all of the circumstances.
In the fourth count of the amended complaint, for the defendant's violation of CUTPA based upon the defendant's violation of CUIPA, the plaintiff incorporates by reference the allegations of the first count and alleges that the defendant's actions violated CUTPA and CUIPA. The plaintiff further alleges that the defendant engaged in unfair claims settlement practices with such frequency as to indicate a general business practice, and it did not attempt in good faith to effectuate a prompt, fair, and equitable settlement of the plaintiff's claims.
In the fifth count of the amended complaint, for negligent infliction of emotional distress, the plaintiff incorporates by reference the allegations of the first count and alleges that as a result of the defendant's continuing course of conduct, it negligently inflicted emotional distress upon her.
In the sixth count of the amended complaint, for promissory estoppel, the plaintiff incorporates by reference the allegations of the first count and alleges that the defendant is estopped from denying its responsibility for the repair, restoration, and replacement of the house and its contents and for the plaintiff's loss of use of the house during the time that it has been uninhabitable.
The seventh count of the amended complaint is for the defendant's violation of CUTPA arising from its breach of contract in administering the policy. The plaintiff incorporates by reference the allegations of the first count and alleges that the defendant's conduct constituted an intentional and wanton violation of her contractual rights under the policy.
II
The defendant has moved to dismiss this action pursuant to the prior pending action doctrine or, in the alternative, because the plaintiff's claims are not ripe for the court's determination. The court will begin its discussion with the defendant's second argument, the issue of ripeness, because it raises a threshold question of subject matter jurisdiction.
A
" A motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-30. " [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727, 724 A.2d 1084 (1999). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citation omitted; internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
According to the defendant, the court lacks subject matter jurisdiction because the plaintiff's claims are not ripe for adjudication. " [R]ipeness is a sine qua non of justiciability . . ." American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384, 390 n.12, 704 A.2d 243 (1997), cert. denied, 244 Conn. 901, 710 A.2d 174 (1998). " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Citation omitted; emphasis in original; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). " Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Weiner v. Clinton, 100 Conn.App. 753, 757, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007). " An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction." (Citation omitted.) Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003).
" [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. at 86-87. The court lacks subject matter jurisdiction over a premature claim that is not ripe, and, therefore, not justiciable. American Premier Underwriters, Inc. v. National Railroad Passenger Corp., supra, 47 Conn.App. at 390.
The defendant contends that this action is premature, and thus not ripe, because all of the causes of action set forth in the amended complaint arise from the defendant's alleged improper conduct in the adjustment and appraisal arbitration process--a hypothetical claim that will not be determined until the defendant's appeal is decided. According to the defendant, if the decision of the trial court is reversed, there will be a valid and enforceable appraisal arbitration award in accordance with the terms of the policy, and, therefore, no basis for the plaintiff's claims. The defendant further argues that, even if the trial court's decision vacating the award is affirmed on appeal, the defendant's only obligation will be to submit to a new arbitration hearing, as required under the policy.
The defendant's argument references the Appellate Court, where the appeal was pending at the time. The appeal was not transferred to the Supreme Court until after the defendant's motion to dismiss was fully briefed and argued. As the appeal is now pending in the Supreme Court, this court will refer to the Supreme Court in its discussion of the ripeness issue.
In response, the plaintiff contends that this action is separate and distinct from her application to vacate the award, and the pending appeal has no bearing on whether her claims in this action are ripe. According to the plaintiff, if the Supreme Court affirms the decision of the trial court and orders a new arbitration, the causes of action set forth in the amended complaint would still remain subject to adjudication. Alternatively, if the Supreme Court reverses the trial court and reinstates the arbitration award, the only impact on this action would be with respect to her damages.
" Pursuant to Connecticut's ripeness jurisprudence, as long as it is clear that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable." (Citations omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. at 87-88. See, e.g., Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 719 A.2d 465 (1998); Grey v. Greenwich Hills Assn., Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019725-S, (Nov. 20, 2015, Tobin, J.T.R.); Cuevas v. Medina, Superior Court, judicial district of Litchfield, Docket No. CV-14-6010704-S, (Dec. 8, 2014, Moore, J.); and Benton v. Regency at Newtown Condominium Assn., Superior Court, judicial district of Danbury, Docket No. CV-14-6014975-S (Nov. 12, 2014, Doherty, J.) (59 Conn.L.Rptr. 290), .
Where the ripeness argument is raised in the legal malpractice context, Connecticut courts have held that " uncertainty as to damages should not automatically serve as bar to justiciability in a legal malpractice action where it has alleged that [the plaintiff] has been harmed by an attorney's past negligent conduct." Portanova & Rutigliano, P.C. v. Lynch, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029394-S (Apr. 10, 2013, Sommer, J.) , ; see also Mayer v. Biafore, Florek & O'Neill, 245 Corn. 88, 92, 245 Conn. 88, 713 A.2d 1267 (1998); Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 305, 975 A.2d 715 (2009); Weiner v. Clinton, supra, 100 Conn.App. at 760; Marshall v. Shanley, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022518-S, (Sept. 22, 2015, Lee, J.); Romprey v. Mainolfi, Superior Court, judicial district of New Haven, Docket No. CV-11-6016848-S, (Oct. 11, 2011, Zoarski, J.T.R.); and Beaver v. Monaghan, Superior Court, judicial district of New London, Docket No. CV-09-5010965-S (Sept. 11, 2009, Peck, J.) (48 Conn.L.Rptr. 465), .
In Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 69 (2008), a creditor brought an action against a debtor's attorney, alleging that the attorney acted improperly in representing the debtor. Both parties appealed from a judgment entered in accordance with a jury verdict in favor of the plaintiff. The defendant argued that the court lacked subject matter jurisdiction because the plaintiff's claims were not ripe for adjudication. More specifically, the defendant contended that the pendency of the bankruptcy proceedings, especially the bankruptcy trustee's ongoing efforts to recover an improperly transferred asset, meant that there was a possibility that the plaintiff would collect on its debt, the alleged loss of which formed the basis of its suit against the defendant, and thus rendered the plaintiff's claims speculative and uncertain and deprived the court of jurisdiction until the bankruptcy proceedings were concluded. The Supreme Court did not agree, observing that " [a]lthough the exact amount of the plaintiff's damages might have remained uncertain when it commenced this action, it nevertheless was abundantly clear that the plaintiff had sustained some damages . . ." (Emphasis in original.) Id. at 87. The court concluded " that even though the amount of the plaintiff's injury was not known with certainty, that circumstance did not render its claims against the defendant unripe and nonjusticiable." (Footnote omitted.) Id. at 89.
In Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 196 (1998), the plaintiff landowner brought an inverse condemnation action against the town of Groton, arguing that the zoning board of appeals' denial of the plaintiff's application for a variance, from which the plaintiff had also appealed to the Superior Court, deprived the plaintiff of any economically reasonable use of its property. The trial court granted the town's motion to dismiss the action for lack of subject matter jurisdiction. The Appellate Court affirmed. It found that the inverse condemnation action was not ripe because the plaintiff's administrative appeal from the denial of its variance request had not been resolved, and, therefore, the extent of the plaintiff's damages was unknown. The Supreme Court reversed, holding that " [a]lthough action by the Superior Court favorable to the plaintiff in the plaintiff's administrative appeal might eliminate the plaintiff's claim of compensation for a complete taking, the plaintiff might nonetheless be entitled to compensation for the temporary taking that wrongly denied the plaintiff's use of its property while the appeal was pending." (Footnote omitted.) Id. at 208.
In Grey v. Greenwich Hills Association, Inc., supra, Superior Court, Docket No. CV-13-6019725-S, the plaintiff brought various claims against a homeowners' association and a managing agent formerly retained by the homeowners' association. The plaintiff alleged, inter alia, that the board improperly found that her patio expansion project was in violation of the approvals which it had previously granted. The plaintiff further alleged that the managing agent had breached its contract with her to oversee the masonry work on the patio. The managing agent argued that the plaintiff had not sufficiently alleged a claim against it for breach of contract because there would be no breach unless and until the homeowners' association prevailed on its special defense and the court found the patio to be in violation. The managing agent argued that the plaintiff must await the outcome of her suit against the homeowners' association before she could maintain an action for breach of contract against the managing agent. The court did not agree. It held that " [i]n this case, the plaintiff clearly suffered an injury when, despite the [managing agent's] monitoring of her patio project, the board found that the project was in violation of the approvals which it had previously granted. There is no risk that the [managing agent] will have a judgment against it for damages in excess of those actually sustained by the plaintiff. Since the issues involving all parties will be tried together, the [managing agent] will have ample opportunity to demonstrate either that it did not breach the monitoring agreement or that any damages the plaintiff may have suffered were not the result of the [managing agent's] breach." Id.
In Cuevas v. Medina, supra, Superior Court, Docket No. CV-14-6010704-S, the plaintiff brought an action alleging that the defendants committed various torts against him as part of a scheme to defraud the creditors of a mutual client, including the plaintiff, and, more specifically, that he reasonably relied to his detriment on the defendants' fraudulent statements and/or negligent misrepresentations when he agreed to represent their mutual client in a Connecticut bankruptcy. The plaintiff sought compensatory damages, including his unpaid fees, as well as punitive damages and attorneys fees incurred in the litigation. The defendants argued that the claims were not ripe pending resolution of matters in the bankruptcy of the former client and the plaintiff's possible recovery on a New York state court judgment in his favor against the client. The court held that the claims were ripe even though the plaintiff might eventually collect the principal amount he sought to recover from the defendants if the New York state court judgment was satisfied. The court concluded that " the plaintiff seeks not only the amount of attorneys fees owed him by [the mutual client], but also punitive damages and attorneys fees pursuant to . . . CUTPA in this action. These additional damages are distinct from the underlying attorneys fees. Therefore, the plaintiff's claims are ripe for adjudication . . ." Id.
In Benton v. Regency at Newtown Condominium Assn., supra, 59 Conn.L.Rptr. 290, the plaintiffs brought various claims against a condominium association, including a claim for breach of contract, arising from the association's requiring the plaintiffs to remove a generator that they had installed before selling their unit, as well as its failure to provide certain documents to the plaintiffs. The defendants contended that the claim for breach of contract was not ripe because the claim was for a hypothetical injury that had not yet occurred and might never occur. They also argued that the claim for failure to provide documents was similarly not ripe because the plaintiffs did not suffer any injury, as they did not expend any money to receive those documents. The court rejected the defendants' argument that the plaintiffs had failed to allege any compensable claim because they had not suffered any actual loss. It found that " [t]he plaintiffs here have alleged an actual controversy between the parties that is beyond the mere hypothetical. The plaintiffs were initially given permission by the board to install a generator on the common lawn area. This permission, however, was later rescinded in part after the installation had already been completed. The plaintiffs, therefore, have an interest that has been adversely affected by the defendants with regard to their rights regarding the generator installation. Concerning the production of documents claim, the allegations indicate that the defendants refused to provide copies of relevant documents which, under [General Statutes] § 47-260, the plaintiffs were entitled to request and receive." Id. The court held that the breach of contract claim was ripe because the plaintiffs had suffered an actual injury, even if the exact scope of damages was uncertain. Id.
The court also considers the decision of the trial court in McCarthy v. Glenwood Place of Farmington Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV-15-6056934-S (Feb. 3, 2016, Noble, J.), to be instructive, although the defendant in that case sought dismissal on the grounds of mootness rather than ripeness. In McCarthy, the plaintiff asserted claims for breach of contract, common-law bad faith, unfair trade practices, violation of CUIPA, and negligence arising from the defendant's failure to pay insurance benefits after the plaintiff suffered a loss due to a discharge of water that damaged her condominium unit. The plaintiffs alleged damages included the cost of repairing her unit, the value of repair or replacement of personal property, additional living expenses, consequential damages, emotional distress, and punitive damages. The defendant moved to dismiss on the ground that the plaintiff's claims were moot because the insured, the condominium in which the plaintiff was a unit owner, had submitted a claim for coverage of damage and loss to a final appraisal, which resolved the plaintiff's claims. The court disagreed, finding that the defendant had not established that it lacked subject matter jurisdiction. In particular, the court determined that " [t]he plaintiff's claim for emotional distress, present in the fourth and eighth counts, as well as the extra contractual claims contained in the fifth, sixth and seventh counts, have not conclusively been established by the defendant to be the subject of the final appraisal." Id.
The plaintiff has asserted claims in this action against the defendant for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence in settling the plaintiff's claim, violation of CUTPA based upon the defendant's violation of CUIPA, negligent infliction of emotional distress, promissory estoppel, and violation of CUTPA based upon the defendant's conduct in connection with selling and administering the policy. In contrast, the plaintiff's claims in the proceeding to vacate the appraisal arbitration award arose from the majority arbitrators' errors and omissions, including their failure to recognize the defendant's obligation to restore the residence as an antique, historic house, their lack of familiarity with the reconstruction and restoration of such a house, and their inadequate award for such items as roof damage, chimney damage, asbestos damage, and damage to the plaintiff's personal property. Similarly, the defendant's preliminary statement of issues in the appeal concerns the rulings of the trial court with respect to the actions of the appraisal arbitration panel and its findings.
The court has taken judicial notice of the February 24, 2016 " Preliminary Statement of Issues" filed by the defendant in the Appellate Court before the appeal was transferred to the Supreme Court.
The court finds that the plaintiff's claims in this action were not before the appraisal arbitration panel. They are independent of the claims asserted in the proceeding to vacate the award, and they are not contingent on the outcome of the appeal now pending in the Superior Court. They are ripe for adjudication, and, therefore, they are justiciable. Accordingly, the court has subject matter jurisdiction. The defendant's motion to dismiss on ripeness grounds is denied.
B
The defendant has also moved to dismiss this action on the ground of prior pending action. " [A]ithough motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). A pending appeal, however, is not a prior pending action. See Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989) (" the plaintiff is correct in his assertion that a pending appeal is not a prior pending action within the meaning of the prior pending action doctrine"); see also Smigelski v. Kosiorek, Superior Court, judicial district of New Britain, Docket No. CV-10-6008157-S, (April 1, 2011, Young, J.) (" for purposes of application of the prior pending action doctrine, a case is no longer pending once it goes to judgment, whether or not an appeal is pending"). Accordingly, the defendant's motion to dismiss on the ground of prior pending action is denied.
III
For the reasons set forth above, the defendant's motion to dismiss (#103.00) is denied.