Opinion
MMXCV156013249
10-04-2016
Lawrence Winkler v. Liberty Mutual Insurance Corporation et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#151)
Elpedio N. Vitale, J.
Pursuant to P.B. § 17-44 et seq., the defendants Liberty Mutual Insurance Corporation (" Liberty") and Sandra Mosley move for summary judgment on the plaintiff's complaint. The defendants contend that they are entitled to summary judgment because " there is no genuine issue of material fact that the insurance contract at issue in this action was not breached, the plaintiffs [do] not have an actionable claim for the breach of duty of good faith and fair dealing and [the defendants] did not violate the Connecticut Unfair Trade Practices Act through the Connecticut Unfair Insurance Practices Act, pursuant to Connecticut General Statutes § 38a-816(1)."
The defendant submitted a memorandum of law in support of the motion, and attached exhibits which included an affidavit from the defendant Sandra Mosley, a copy of the insurance policy central to this action, excerpts of the deposition of the plaintiff, Lawrence Winkler, and an affidavit from Kevin Bougle, a claims adjuster employed by the defendant Liberty.
The plaintiff objects and argues that genuine issues of material fact exist as to whether the defendants breached the insurance contract, breached the duty of good faith and fair dealing, or misrepresented that the coverage in the policy (insurance contract) would be sufficient in light of a loss or that the coverage would exceed the policy limits in violation of C.G.S. § § 38a-815, 38a-816(1) and 42-110b et seq. The plaintiff also contends that the instant motion " although dressed in the clothing of a motion for summary judgment" . . . is in fact a motion to strike the complaint as insufficient to state a cause of action" and is thus procedurally improper.
The plaintiff submitted a brief in opposition to the motion, and attached exhibits, including an affidavit from Lawrence Winkler, excerpts from the deposition of Lawrence Winkler, an affidavit from Daniel Winkler, excerpts from Daniel Winkler's deposition, a copy of the insurance policy at issue, excerpts of the deposition of Sandra Mosley, and other documents pertaining to the insurance contract.
The defendants submitted a reply brief. Oral argument on the matter was heard of July 11, 2016.
Nature of the Proceedings
In his complaint, the plaintiff alleges that he contacted the defendant Liberty through its agent the defendant Sandra Mosley to inquire about obtaining insurance for 595 Maple Shade Road, Middletown, Connecticut with the buildings and personal property thereon that he was considering purchasing. (Complaint, ¶ 6.) The defendants offered to insure the dwelling for $190,000 and an outbuilding for 10 percent of that amount. (Complaint, ¶ 7.) After the plaintiff questioned the amount of coverage for the outbuilding, the defendants offered to insure the outbuilding for $65,000 and assured the plaintiff that this coverage was adequate. (Complaint, ¶ ¶ 8-12.) The plaintiff requested coverage of $250,000 for his personal tools and equipment and the defendants offered coverage of $142,500 stating that this coverage would provide replacement cost and was adequate to protect the plaintiff's personal property. (Complaint, ¶ ¶ 13-14.) The defendants also represented to the plaintiff that its policy would provide coverage for the plaintiff's vehicle under the circumstances the plaintiff described to them. (Complaint, ¶ ¶ 15-16.) The defendants issued a policy to the plaintiff, which was in full force and effect on November 23, 2013, when a fire substantially damaged the plaintiff's property. (Complaint, ¶ ¶ 18-21.) The loss suffered by the plaintiff greatly exceeded the coverage provided by the defendants. (Complaint, ¶ 23.) The defendant Liberty evaluated the fire damage to the outbuilding at more than 77 percent above the amount of coverage provided under the policy. (Complaint, ¶ 24.) The plaintiff alleges that Liberty has refused and continues to refuse to pay benefits to which the plaintiff claims he is entitled. (Complaint, ¶ 29.)
In the First Count of his complaint, the plaintiff alleges that the defendant Liberty breached its agreement in failing and refusing to honor its obligations under its policy of insurance. (Complaint, First Count, ¶ 31.) The Second Count of the plaintiff's complaint alleges that the defendant Liberty, acting through Mosley, misrepresented the benefits, advantages, condition or terms of the policy and thereby breached its covenant of good faith and fair dealing. (Complaint, Second Count, ¶ 31.) In the Third Count, the plaintiff alleges that the defendants' misrepresentations violated CUIPA, General Statues § § 38a-815 and 38a-816(1). (Complaint, Third Count, ¶ 32.) The Fourth Count incorporates the allegations of Paragraph 31 of the Third Count and further alleges that the defendants violated CUTPA, General Statutes § § 42-110b et seq. and, as a result, the plaintiff suffered an ascertainable loss. (Complaint, Fourth Count, ¶ ¶ 33-34.)
The defendants contend that the plaintiff requested, and received limits of $65,000 for other structures on the insured property. (Exhibit A.) Although the plaintiff claims that he initially requested $250,000 in coverage for his personal property, Liberty offered, and the plaintiff accepted $142,500 in coverage for personal property. (Exhibit A.) According to the defendants, the plaintiff also executed an application for homeowners insurance dated August 2, 2013 which specifically outlined the policy limits applicable to each category of coverage. Specifically, the application clearly indicated limits of $65,000 for other structures on the insured location Coverage B and $142,500 for personal property Coverage C. (Exhibit A-1.) These limits are also outlined in the policy of insurance issued to the plaintiff. (Exhibit A-2.) The defendants argue the plaintiff was offered, and accepted, limits of $65,000 for other structures and $142,500 for personal property and these limits were paid in full to the plaintiff following the fire loss of the barn. (Exhibit C ¶ ¶ 9-10.)
Discussion
Familiarly with the case law and arguments of the parties is presumed, and need not be generally repeated. " Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is not a real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
" 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Little v. Yale University, 92 Conn.App. 232, 234-35, 884 A.2d 427 (2005) (emphasis in original; citation and internal quotation marks omitted.) See also Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994) (" Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of an issue").
" Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . to establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . such assertions are insufficient regardless of whether they are contained in a complaint or brief. Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226 (1995).
" To defeat a motion for summary judgment, the nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
I.
Procedural Posture
The plaintiff argues preliminarily that the instant motion for summary judgment is procedurally inappropriate in that each of the defendants are " challenging the sufficiency of the complaint to allege a breach of contract." The plaintiff cites to Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005) in support of that argument. The defendants cite to the same case in opposition to said claim. Larobina, supra, set forth the parameters for the use of summary judgment in lieu of a motion to strike for challenging the legal sufficiency of a pleading.
American Progressive Life and Health Ins. Company of New York v. Better Benefits, LLC, 292 Conn. 111, 971 A.2d 17 (2009) further expounded on the principles articulated in Larobina . The court in American Progressive, supra, contrasted the differences distinguishing the procedural devices of summary judgment and a motion to strike. It concluded by stating the following:
The use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.)
In light of these competing concerns, in Larobina, we set forth the following parameters to clarify our case law: '[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.' . . . [Summary judgment is permissible to] challenge the legal sufficiency of the complaint when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice. A plaintiff should not be allowed to argue to the trial court that his complaint is legally sufficient and then argue on appeal that the trial court should have allowed him to amend his pleading to render it legally sufficient. Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him . . . To rule otherwise would permit trial by ambuscade." (Internal quotation marks omitted.) Id. at 121-22.
The plaintiff herein did object to the use of summary judgment to contest the sufficiency of the complaint. However, the plaintiff did not in his brief, or at oral argument, unlike the issue raised in American Progressive, supra, argue in the alternative that if this court determined any count in the complaint was legally insufficient, such claim could be amended. The plaintiff argued only that genuine issues of material fact existed as to each count so as to render summary judgment inappropriate. This point is critical given the following language in American Progressive :
The rule that we set forth in Larobina does not bar a litigant from pursuing arguments in the alternative. In other words, a party does not waive its right to replead by arguing that the pleading is legally sufficient, but offering, if the court were to conclude otherwise, to amend the pleading. Therefore, the defendants' conduct did not indicate that they were " waiving the right to replead if the legal issue is decided against them." (Internal citations marks omitted.) Id. at 124.
Nothing in the plaintiff's brief or oral argument suggested as an alternative argument that plaintiff wished to, or had the ability to, replead in the event of a determination by the court that any count of the complaint was legally insufficient.
For the foregoing reasons, the court will therefore consider the defendants' claims as raised pursuant to a motion for summary judgment, based on the court's determination that the plaintiff's conduct resulted in a waiver of his procedural claim. The record does not reflect a claim by the plaintiff that he wished the opportunity to replead if the court determined the counts at issue are legally insufficient.
II.
Summary Judgment as to Defendants Liberty Mutual and Sandra Mosley
A. Breach of Contract (Count One)
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Internal quotation marks omitted.) Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. and Associates Radiology, P.C., 130 Conn.App. 823, 832, 25 A.3d 707 (2011). " It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citations omitted; internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, 114 Conn.App. 290, 294, 970 A.2d 730 (2009). Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction. See, e.g., Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509-10, 363 A.2d 1055 [(1975), overruled in part, Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991)]; A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1996). The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy. Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283, 278 A.2d 796 (1971). If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. Weingarten v. Allstate Ins. Co., supra, 169 Conn. at 509, 363 A.2d 1055. However, " [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted." Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716 (1954); see also 4 [S.] Williston, Contracts (3d Ed. [1961]) § 621." (Internal quotation marks omitted.) Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); see Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990).
Our jurisprudence makes clear, however, that " [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied." Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309-10, 524 A.2d 641 (1987); Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). Indeed, " 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." Plainville v. Travelers Indemnity Co., 178 Conn. 664, 675, 425 A.2d 131 (1979); Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289 (1935).
The plaintiff has not identified a provision in the insurance contract that was breached or is ambiguous. It is apparently undisputed that the defendant Liberty Mutual has paid the full limits of the insurance policy at issue. " A breach of contract means doing something proscribed by a contract or not doing something required by a contract . . . a mere assertion of a position or a claim inconsistent with a contractual representation is not a breach of the contract when the assertion itself is not actually precluded by any provision in the contract . . . a breach of contract action cannot be maintained when the [plaintiff] cannot identify any contract provision breached by the defendant's conduct." Keller v. Beckenstein, 117 Conn.App. 550, 560-61, 979 A.2d 1055 (2009).
B. Breach of Covenant of Good Faith and Fair Dealing (Count Two)
" [E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 693, 10 A.3d 61, 75 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011). " [T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144, (2000).
" [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290, (2007). " Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563-64, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). " Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of in the implied covenant of good faith and fair dealing is legally insufficient." Alexandru v. Strong, 81 Conn.App. 68, 81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
In Count Two of his complaint, the plaintiff asserts that the alleged misrepresentation by the defendants occurred prior to the execution of the contract. As such, the allegations fail to satisfy the requirements necessary to allege a breach of the covenant of good faith and fair dealing. " Because the challenged conduct underlying the plaintiffs' complaint thus took place at the negotiation and execution stage, rather than at the performance stage of their contracts, the defendant owed the plaintiff no duty of good faith and fair dealing. In the absence of any other identifiable conduct that occurred subsequent to the contracts' formation and arose independent of the defendants' initial misrepresentations, we conclude that the plaintiffs have alleged insufficient facts upon which to base a claim for breach of the duty of good faith and fair dealing." Macomber v. Travelers Property & Cas. Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002). Additionally, as noted previously, the defendant Liberty Mutual fulfilled the terms of the written policy issued to the plaintiff.
C. CUIPA/CUTPA Claims (Counts Three and Four) C.G.S. § § 38a-815, 38a-816(1), 42-110b et seq.
" [T]he legislature has manifested an intention to make insurance practices the subject of two regulatory statutes, CUIPA and CUTPA." Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986). CUTPA prohibits " unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce"; General Statutes § 42-110b(a); while " CUIPA . . . forbids any person engaged in the business of insurance in this state from engaging in any unfair method of competition or in any unfair or deceptive act or practice . . ." (Internal quotation marks omitted.) Mead v. Burns, supra, at 657. " CUTPA affords a cause of action to [a]ny person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by Section 42-110b . . . including a violation of [CUIPA]." (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 645, 804 A.2d 180 (2002). " In order to sustain a CUIPA cause of action under CUTPA, a plaintiff must allege conduct that is proscribed by CUIPA." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 625, 910 A.2d 209 (2006).
Under CUIPA, " § 38a-816(1) prohibits misrepresentations and false advertising of insurance policies. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. at 794. " Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. at 626.
General Statutes § 38a-816 states, in relevant part: " The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance . . . Misrepresentations and false advertising of insurance policies. Making, issuing or circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement, sales presentation, omission or comparison which . . . Misrepresents the benefits, advantages, conditions or terms of any insurance policy . . ."
Plaintiff claims that defendant Mosley, as an agent of Liberty Mutual, misrepresented the terms and conditions of the policy to the plaintiff during sales presentations. As a result, according to the plaintiff, she and Liberty have violated the General Statutes § 38a-816. " There must be a justifiable reliance on the misrepresentation for a plaintiff to recover damages . . . The basic element of a claim for misrepresentation, however, is whether there was a misstatement . . . Without a misrepresentation, there can be no justifiable reliance." (Citations omitted; internal quotation marks omitted.) WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV05 4003327, (May 31, 2007, Rubinow, J.), reversed in part on other grounds, 109 Conn.App. 605, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008).
The defendant Liberty Mutual argues that the statements made by its agent, the defendant Mosley, were not misrepresentations, but " qualitative statements" immune to liability.
The plaintiff points to " inconsistencies between Mosley's deposition testimony and her affidavit, as well as [other] facts" as establishing a genuine issue of material fact as to the actual nature of those statements.
" [W]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact . . . It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . . . It is only when the witnesses are present and subject to cross examination that their credibility and the weight to be given to their testimony can be appraised." (Citation omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 497-98, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). In addition, " the function of the trial court is only to determine whether there is genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing." Yanow v. Teal Industries, Inc., 178 Conn. 262, 269, 422 A.2d 311 (1979).
For the foregoing reasons, the Motion for Summary Judgment is granted as to Counts One and Two and denied as to Counts Three and Four.