A and R Enterprises, LLC v. Sentinel Insurance Company, Ltd., 011221 CTCA, AC 42774

Docket Nº:AC 42774
Opinion Judge:CRADLE, J.
Party Name:A AND R ENTERPRISES, LLC v. SENTINEL INSURANCE COMPANY, LTD.
Attorney:Matthew J. Forrest, for the appellant (plaintiff). Joseph M. Busher, Jr., for the appellee (defendant).
Judge Panel:Bright, C. J., and Lavine and Cradle, Js.
Case Date:January 12, 2021
Court:Appellate Court of Connecticut

A AND R ENTERPRISES, LLC

v.

SENTINEL INSURANCE COMPANY, LTD.

No. AC 42774

Court of Appeals of Connecticut

January 12, 2021

Argued October 29, 2020

Procedural History

Action to recover damages for breach of an insurance contract, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Hon. Robert B. Shapiro, judge trial referee; judgment for the defendant, from which the plaintiff appealed to this court. Affirmed.

Matthew J. Forrest, for the appellant (plaintiff).

Joseph M. Busher, Jr., for the appellee (defendant).

Bright, C. J., and Lavine and Cradle, Js. [*]

OPINION

CRADLE, J.

In this action seeking recovery of the cost to repair a motor vehicle that was damaged in an accident, the plaintiff, A & R Enterprises, LLC, appeals from the judgment of the trial court, rendered after a court trial, denying its claim for the full cost of the repairs on the ground that the insured, Creative Electric, LLC (insured), which assigned its rights to the plaintiff, failed to comply with the voluntary payment provision of the insurance policy pursuant to which the plaintiff sought recovery from the defendant, Sentinel Insurance Company, Ltd. On appeal, the plaintiff claims that the trial court erred by (1) concluding that the recovery of the full cost of the repairs was precluded by the insured's failure to comply with the voluntary payment provision and (2) rejecting its claim that the defendant's reliance on that provision constituted an improper attempt to steer the insured to the defendant's preferred auto body repair shop in violation of General Statutes § 38a-354 (b). We affirm the judgment of the trial court.

The following factual and procedural history, as set forth by the trial court in its memorandum of decision, is relevant to the resolution of the plaintiff's claims on appeal. ‘‘The plaintiff . . . commenced this action for breach of an insurance policy against the defendant . . . in June, 2016, seeking damages in the amount of $3278.58 for repairs made to a motor vehicle owned by [the insured] in June, 2015. The plaintiff is the assignee of [the insured].

‘‘The plaintiff alleges that, on May 7, 2015, [the insured's] vehicle was damaged in a one vehicle accident and the vehicle was covered by a commercial automobile insurance policy issued by the defendant. [The insured] entered into a contract with the plaintiff to complete all reasonable and necessary repairs. The plaintiff alleges that it completed all reasonable and necessary repairs for a total cost of $9681.84, of which only $6403.26 was paid by the defendant. The plaintiff claims that a balance of $3278.58 remains due and owing from the defendant. It also alleges that the defendant's failure to pay for the repairs is an attempt at ‘steering' its insured to an auto body shop other than the plaintiff's by placing financial pressure on the insured to choose another repair facility.

‘‘In response, the defendant admits that it issued an auto insurance policy to [the insured] and that the policy covered the damaged vehicle. The defendant generally denies all other allegations or leaves the plaintiff to its proof. In addition, the defendant set forth various special defenses, including, in its fourth special defense, that the plaintiff's claim is barred by applicable policy language providing that no one may bring legal action against the defendant until there has been full compliance with the terms thereof . . . and there has not been full compliance with all such terms, in that consent was not obtained before the obligations and expenses claimed by the plaintiff were incurred.

‘‘The defendant relies on [§] IV.A.2.b (1) [of the policy, known as the voluntary payment provision], which provides, under Business Auto Conditions, that the defendant ‘has no duty to provide coverage under this policy unless there has been full compliance with the following duties,' including that an insured ‘must . . . [a]ssume no obligation, make no payment or incur no expense without our consent, except at the ‘‘insured's'' own cost.' ''1

Following a one day trial and the submission of post-trial briefs by the parties, 2 the court, on March 19, 2019, issued a memorandum of decision, in which it found in favor of the defendant on its special defense that the insured failed to comply with the provision of the insurance policy that required it to incur no expense without the defendant's consent. Specifically, the court found: ‘‘The alleged loss occurred on May 7, 2015. [The defendant's appraiser, Harry] Bassilakis went to the plaintiff's repair facility in Torrington . . . on June 24, 2015, where he met with the insured and inspected the vehicle. He discussed the scope of repairs with the plaintiff's representative, Randall Serkey. While they agreed on the scope of damage, no agreement was reached on the total cost of repairs. Bassilakis provided the defendant's estimate and explained to the insured and to Serkey that the defendant was in a nonagreed position with the insured's body shop of choice and that it was solely the insured's choice as to where to have the vehicle repaired. He advised that a letter [stating this position] would be issued.

‘‘By letter issued the next day, June 25, 2015 . . . the defendant advised the insured that it had been unable to reach an agreed price with the plaintiff, the ‘repairer of your choice.' The defendant offered the sum of $4981.42 plus the insured's deductible of $500 as sufficient to repair the vehicle ‘at a repair shop located reasonably convenient to you.' Its claim representative asked the insured to contact her to discuss how it wished to proceed. . . .

‘‘While the plaintiff argues that this letter was drafted and sent after the insured had signed a repair contract with the plaintiff . . . evidence of agreement between the plaintiff and the insured does not evidence consent by the defendant. The defendant's position that it did not agree with the plaintiff's price was clearly stated. The plaintiff's arguments that the insured had a reasonable expectation that the defendant would cover the cost of the repairs which the insured incurred and that [it] is reasonable that an insured would believe that he was acting with the defendant's knowledge and consent, are unfounded. The insured did not have the requisite consent from the defendant.'' (Citations omitted.) On that basis, the court rendered judgment in favor of the defendant. This appeal followed.

I

The plaintiff first claims that the trial court erred when it denied recovery of the full cost of repairs to the insured's vehicle on the ground that the insured failed to comply with the voluntary payment provision of the insurance policy3 because (1) it did not consider whether the defendant was prejudiced by the insured's noncompliance with that provision, (2) voluntary payment provisions are applicable only to expenses incurred prior to the insurer being notified of the claim of loss, (3) it failed to apply the ‘‘rule of contra proferentem against the [defendant] where the consent provision [was]...

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