Opinion
No. CV05-4010471S
October 31, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#105)
On May 4, 2005, the plaintiffs, Bruce Tulgan, Deborah Applegate and Rainmaker Thinking, Inc. (Rainmaker), filed a single-count complaint against the defendant, St. Paul Travelers Connecticut Foundation, Inc. (Travelers), in which they seek to recover payment on an underlying judgment. In the complaint, the plaintiffs allege the following facts. Tulgan and Applegate are the owners of a legal two-family residence, located at 125 Lawrence Street, New Haven, Connecticut (premises). Tulgan and Applegate reside at the premises, and Rainmaker is a tenant of the premises. In Tulgan v. Malmquist, Docket No. CV 04 0490220, which involved a dispute concerning a contract to provide materials and services, Tulgan, Applegate and Rainmaker obtained a final judgment against all defendants in the amount of $59,518.86 in damages and $536.24 in costs. The defendants in the underlying action were insured by the Travelers against such damages at the time of the plaintiffs' suit.
On March 23, 2007, the defendant filed a motion for summary judgment on the grounds that: (1) the plaintiffs have "incorrectly brought suit against the wrong entity;" (2) the plaintiffs have "named the wrong insured, and therefore may not seek relief from the [p]olicy;" (3) the policy excludes all coverage for claims of defective workmanship; (4) the policy excludes all coverage for intentional acts; and (5) the plaintiffs' allegations do not constitute an "occurrence," as defined in the policy. The defendant has submitted a memorandum of law in support of the motion, as well as a copy of the underlying complaint and the insurance policy. On August 15, 2007, the plaintiffs filed a memorandum of law in opposition. The matter was heard on the short calendar on September 2, 2008.
Although the motion states that it is "[r]espectfully submitted" by Charter Oak Fire Insurance Company, the court construes this as an error on the part of the defendant's counsel, and will consider the motion to have been properly filed by the Travelers, the named defendant in this case.
"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.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question . . . construction of a contract of insurance presents a question of law . . ." (Internal quotation marks omitted.) Mitchell v. Medical Inter-Insurance Exchange, 101 Conn.App. 721, 725, 923 A.2d 790, cert. denied, 284 Conn. 903, 931 A.2d 265 (2007). "It is the function of the court to construe the provisions of the contract of insurance." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 784, 900 A.2d 18 (2006). The court must determine "what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . . [giving the] words . . . [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the insured . . ." (Internal quotation marks omitted.) Id., 784-85.
"If the words in the [insurance] policy are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties . . . There is no presumption that language in insurance contracts is inherently ambiguous." (Citations omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 545, 791 A.2d 489 (2002). "Whe[n] the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . ." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 760, 905 A.2d 623 (2006). The language of the contract "is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion." (Internal quotation marks omitted.) Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 559, 849 A.2d 368 (2004).
The named insured under the policy in question is Benjamin Wilson. Although the "insuring company" is listed as Charter Oak Fire Insurance Company, the policy was issued by the Travelers. The "Common Policy Conditions" portion of the policy explains in section I: "In return for payment of the premium, The Travelers agrees with the Named Insured to provide the insurance afforded by a Coverage Part forming part of this policy. That insurance will be provided by the company indicated as insuring company in the Common Policy Declarations by the abbreviation of its name opposite that Coverage Part."
The insurance policy provides that "[w]e will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss." The following exclusion is listed in section B: "3. We will not pay for loss or damage caused by or resulting from any of the following . . . c. Faulty, inadequate or defective . . . (2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling . . ." Such an exclusion "is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed . . . [T]he word `exclusion' signifies subject matter or circumstances in which the insurance company will not assume liability for a specific risk or hazard that otherwise would be included within the general scope of the policy." (Citations omitted; internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 588-89, 573 A.2d 699 (1990).
The relevant language in the policy is plain and unambiguous, and must be given its natural and ordinary meaning. The only reasonable interpretation of the exclusionary provision is that it specifically excludes from coverage any loss or damage arising out of faulty, inadequate or defective design, specifications, workmanship, repair, construction, renovation, remodeling, grading or compaction, or materials used in relation to those activities.
The nine claims made against Wilson in the underlying action all concern the unworkmanlike and substandard manner in which he performed the construction. The plaintiffs have failed to show that there are genuine issues of material fact. "The average policyholder could not reasonably reach a conclusion of coverage in the particular circumstances here in the light of and having in mind the language of the . . . [exclusionary provision]." (Internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co., supra, 214 Conn. 591. The defendant is entitled to judgment as a matter of law.
Counts nine through sixteen respectively allege: breach of contract; unjust enrichment; fraud/intentional misrepresentation; intentional misrepresentation/non-disclosure; negligent misrepresentation; negligent breach of contract; fictitious trade name; and a violation of the Connecticut Unfair Trade Practices Act, § 42-110a et seq. Count thirty-three alleges trespass.
For the reasons stated herein, the defendant's motion for summary judgment is granted.