Opinion
No. CV 08 5009740
May 24, 2011
MEMORANDUM OF DECISION
Facts and Procedural History
Before the court is the only remaining count of the plaintiff, Richard Shenkman-Tyler's, action against the defendant, Central Mutual Insurance Company (CMIC). The relevant facts and procedural history were recited in Shenkman-Tyler v. Central Mutual Ins. Co., 126 Conn.App. 733, 12 A.3d 613 (2011). "This matter stems from the destruction by fire of a beach home (property) owned by Tyler, the plaintiff's former wife, and insured by Central Mutual. Tyler took title to the property in her name on August 24, 1995. At all relevant times, the property was insured by Central Mutual. Tyler initiated a marital dissolution action against the plaintiff on July 19, 2006. On March 5, 2007, while the marital dissolution action was pending, the property was destroyed by fire. The plaintiff was arrested on May 10, 2007, on charges of arson and reckless endangerment in relation to the fire that destroyed the property." Id., 736.
On October 10, 2008, the plaintiff filed this action against the defendant. See id., 737. The plaintiff's four-count complaint related to Central Mutual's handling of the insurance claim on the property and alleged breach of contract, breach of the covenant of good faith and fair dealing, violation of CUTPA, and negligent infliction of emotional distress. The entire complaint was dismissed by the trial court, Cosgrove, J., because Tyler was awarded sole ownership and title to the property and all proceeds relating to the insurance claim on the property in the marital dissolution proceeding. Therefore, the trial court found that any interest that the plaintiff may have had under the insurance contract had been assigned to Tyler by way of the judgment in the dissolution proceeding, and the plaintiff lacked standing to bring the claims. See id.
The Appellate Court affirmed the trial court's decision as to counts one through three of the plaintiff's complaint. "[T]he order in the marital dissolution proceeding not only awarded Tyler all rights to receive proceeds under the insurance policy, but also assigned all of the plaintiff's interests in the insurance policy to Tyler and thereby extinguished all of the plaintiff's rights under the insurance policy. Because the plaintiff no longer has any interest under the insurance policy, he no longer has any `specific, personal and legal interest' in the subject matter of the first three counts in the contract action and has, therefore, failed to demonstrate that he has standing to bring those claims. The court properly concluded that the plaintiff lacked standing to bring counts one through three of the contract action, and its judgment granting Central Mutual's motion to dismiss is affirmed as to those counts." Id., 743.
The Appellate Court concluded, however, "that the plaintiff has standing to bring his claim for negligent infliction of emotional distress . . . Unlike the other counts in the plaintiff's contract claim, the plaintiff's alleged aggrievement under the fourth count is not related to his interest in the insurance policy, but, rather, relates to Central Mutual's conduct toward the plaintiff when investigating the claim for coverage for the damage to the property as a result of the fire. Specifically, the plaintiff alleged in that count of his complaint that Central Mutual's conduct in failing `to evaluate the fire loss objectively' and `refus[ing] coverage under the policy on the basis [that he] is alleged to have intentionally caused the fire without having conducted any independent investigation of the origin and cause of the fire' has caused the plaintiff emotional distress." Id., 743-44.
The Appellate Court further explained: "[T]he claim of negligent infliction of emotional distress is based on Central Mutual's conduct toward the plaintiff and whether such conduct caused him emotional distress that was severe enough that it might cause him illness or bodily harm. The plaintiff's standing to bring his claim of emotional distress is not in fact or law contingent on his interests under the insurance policy. Rather, the plaintiff has established aggrievement and, thus, standing by alleging that Central Mutual's conduct toward him relating to the manner in which it conducted its investigation of the insurance claim on the property negligently caused him direct harm, i.e., emotional distress . . . The fact that all of the plaintiff's interests under the insurance policy were awarded to Tyler did not affect the plaintiff's standing to bring count four of the contract action alleging negligent infliction of emotional distress. To establish standing, the plaintiff need not prove the existence of any such interest. We conclude that the plaintiff has standing to bring a claim of negligent infliction of emotional distress and that the court improperly granted Central Mutual's motion to dismiss this count." (Citation omitted.) Id., 744-45.
This case was remanded for further proceedings. On April 5, 2011, the defendant filed a motion for summary judgment as to the negligent infliction of emotional distress count. The plaintiff filed his memorandum in opposition on April 20, 2011, and the defendant filed its reply on April 21, 2011. The parties appeared for oral argument on April 25, 2011.
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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"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 law, entitle him to a judgment as a matter of law. 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 . . . 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In count four, the plaintiff alleges: "CMIC . . . breached its duty to the plaintiff and instead has acted in bad faith towards the plaintiff in that the defendant CMIC: failed to evaluate the fire loss objectively; failed to make reasonable investigation to determine the plaintiff's legal and/or equitable interest in the property and/or his rights under the policy of insurance; refused coverage under the policy asserting that the plaintiff has no insurable interest in the subject property without having a factual or legal basis for doing so and/or knowing that said assertion is in contravention with Connecticut law and insurance law generally; failed to make an adequate investigation of the origin and cause of the subject fire; refused coverage under the policy on the basis the plaintiff is alleged to have intentionally caused the fire without having conducted any independent investigation of the origin and cause of the fire and/or without adequate supporting evidence . . . CMIC knew or should have known that its conduct involved an unreasonable risk of causing the plaintiff emotional distress . . . CMIC's actions did cause the plaintiff emotional distress, which distress has or will likely lead to illness or physical harm to the plaintiff."
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Shenkman-Tyler v. Central Mutual Ins. Co., supra, 126 Conn.App. 744.
In Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003), the Supreme Court recognized a claim for negligent infliction of emotional distress arising from an insurer's fire loss investigation. In that case, the jury found that the defendant-insurer's investigation was improperly motivated, in that the defendant's independent fire expert was motivated to find arson in order to ensure his continued employment by the defendant, and that the plaintiff had been referred to as a black man and a "son of a bitch." See id., 445. Significantly, the plaintiff was never charged with any crime associated with the loss. See id., 436 n. 4. In short, "the defendant's arson investigation had been hasty, incomplete and ill-reasoned." Id., 444-45.
In light of this evidence, the court concluded: "[T]here was sufficient evidence that the plaintiff's distress was reasonable in light of the defendant's conduct. The defendant conducted an arson investigation to establish whether the plaintiff had engaged in conduct that was criminal. Moreover, there was evidence from which the jury could have inferred that the defendant's investigation was not only shoddy, but that it possibly was influenced by racial sterotypes. We conclude that there was sufficient evidence to support a finding that the defendant's conduct created an unreasonable risk of causing the plaintiff's emotional distress and that the plaintiff's distress was foreseeable." Id., 447-48.
Here, the defendant argues that it is entitled to summary judgment because the state's investigation, which resulted in the plaintiff's arrest, limited its investigation into the fire loss and further, that its reliance on the state's investigation was appropriate. The defendant has presented the court with the following evidence in support of its motion.
In his March 29, 2011 affidavit, Thomas Madigan, attests: "I am a fire investigator and was retained by CMIC on March 5, 2007, to investigate the cause of a fire loss that occurred on March 5, 2007, at property known as 29 South Washington Street, in East Lyme . . . On March 6, 2007, I began my investigation into the loss of the fire by traveling to the site of the loss to make inspection . . . On arrival at the scene, I observed the extent of the damage was significant . . . By the time of my inspection, the public authorities, including local fire marshal and the assistant state's attorney, had determined the fire was `suspicious' and these officials regarded the scene of the loss as a `crime scene.' . . . In so regarding the site of the loss, the state's attorney was in the process of seizing evidence, rendering limited access to the scene by me . . . By early May 2007, I was advised that Mr. Shenkman had been charged with causing the subject loss, and at that point he was not accessible for interview . . . As the only person on site at the time of the loss, Mr. Shenkman was the principal witness and an interview was essential to a proper investigation . . . The inability to interview Shenkman together with the limitations imposed on access to available evidence precluded my proceedings further with an investigation . . . My investigation concluded with Shenkman's arrest on arson charges, but the results of my investigation to that point and information received by state and local law enforcement officials suggested that Shenkman purposely set the fire."
Additionally, the defendant provides the court with a March 18, 2009 letter to defendant's counsel from State's Attorney Michael Regan. This letter states: "I would contest any party's attempt to seek disclosure of our files or the files of any law enforcement agency regarding the arson that was alleged to have occurred on or about March 5, 2007 at 29 South Washington Street in the Town of East Lyme. That would include the testimony of any law enforcement officials. It is my claim that while the related criminal case . . . is pending that information is privileged."
It is well established that when a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] 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. 756, 795, 653 A.2d 122 (1995). Significantly, the plaintiff has not provided the court with any evidence to contradict what the defendant has presented to the court in support of its motion for summary judgment.
In his opposition brief, the plaintiff argues that he is entitled to a "presumption of innocence" and that that summary judgment would violate his due process rights. As to the latter argument, the plaintiff laments that summary judgment would violate "[a] fundamental premise of due process . . . that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved." (Internal quotation marks omitted.) He contends that he "should be given an opportunity to challenge the defendant's claim that he caused the fire loss . . . [and] has not had that opportunity, as this is still in the early stages of discovery."
Notably, in Tyler v. Shenkman-Tyler, 115 Conn.App. 521, 522, 973 A.2d 163 (2009), cert. denied, 125 Conn.App. 903, 10 A.3d 1110 (2010), the plaintiff argued that the court's denial of motions to continue his dissolution trial, until after the disposition of his pending criminal case, deprived him of the opportunity to present a defense to that action, thereby depriving him of his due process rights, because he invoked his privilege against self-incrimination. The Appellate Court rejected his contention stating: "With respect to the constitutional right not to be deprived of property without due process of law, [Shenkman-Tyler] fails to recognize that it was his decision not to testify at his dissolution trial. The court did not compel him to exercise his fifth amendment privilege, and the court did not compel him to forgo presenting a defense. Although he may have been faced with difficult choices under those circumstances, he was not deprived of a constitutional right." Id., 526.
Similarly here, the plaintiff overlooks the fact that he has refused to submit to an interview with the defendant's investigators; he has chosen to remain silent. Consequently, his own actions limited and hindered the defendant's investigation.
In light of the uncontradicted evidence presented by the defendant, the court finds that it is entitled to summary judgment. The defendant did not engage in a shoddy investigation into the fire loss that unfairly targeted the plaintiff and caused his emotional distress. There is no genuine issue of material fact regarding that conclusion. Rather, the evidence demonstrates that the defendant's ability to conduct an independent investigation into the fire was limited by the plaintiff's refusal to submit to an interview and the state's criminal investigation, which immediately and unequivocally focused on the plaintiff's alleged intentional setting of the fire. The affidavit of Thomas Madigan and the letter authored by State's Attorney Michael Regan clearly show that the defendant's investigators were denied access to other witnesses and additional evidence.
Further, the defendant's investigation did not unfairly target the plaintiff. The defendant reasonably relied on the thorough investigation conducted by state and local law enforcement, which focused solely on the plaintiff and culminated in his arrest two months after the fire. The present case is clearly distinguishable from Carroll, where the plaintiff, who was never charged with any crime associated with the loss, was the subject of an inept, hasty investigation that targeted him because of his race and other motivations on the part of the insurer and its investigators.
In sum, the defendant's claim for negligent infliction of emotional distress arising from the defendant's improper investigation into the fire loss must fail.
Conclusion
For all of the foregoing reasons, the defendant's motion for summary judgment is hereby granted.