New London Cnty. Mut. Ins. Co. v. Zachem

• Decision Date: 20 August 2013
• Docket Number: No. 34538.,34538.
• Citation: 145 Conn.App. 160,74 A.3d 525
• Parties: NEW LONDON COUNTY MUTUAL INSURANCE COMPANY v. Karleen ZACHEM et al.
• Court: Connecticut Court of Appeals

145 Conn.App. 160

74 A.3d 525

NEW LONDON COUNTY MUTUAL INSURANCE COMPANY

v.Karleen ZACHEM et al.

No. 34538.

Appellate Court of Connecticut.

Argued March 13, 2013.

Decided Aug. 20, 2013.

Theodore W. Heiser, Chester, with whom was Catherine H. Heiser, Chester, for the appellants (defendants).

Susan L. Miller, West Hartford, with whom, on the brief, was Margaret A. Casey, for the appellee (plaintiff).

ROBINSON, ALVORD, and PELLEGRINO, Js.

ROBINSON, J.

The defendants, Karleen Zachem and Phyllis Knutson, appeal from the trial court's declaratory judgment holding that the plaintiff, New London County Mutual Insurance Company, has no duty to provide coverage under an insurance policy with the defendants for a claimed loss arising from an explosion and fire. The defendants claim that the court improperly concluded that their loss was excluded from coverage under a vandalism exception in the policy based on its erroneous determinations that (1) the defendants' property had been vacant for more than thirty consecutive days at the time of the explosion and fire, and (2) an “ensuing loss” provision in the policy was inapplicable as an alternative basis for coverage. We affirm the judgment of the trial court.

We first set forth the following procedural history and relevant facts, which either are undisputed or were found by the trial court. The defendants are the owners of real property located on Route 2 in Preston (premises). A single family house and a freestanding garage were located on the premises; the defendants maintained the house as a rental property. The plaintiff issued an insurance policy to the defendants that included coverage for the house and the garage. The section of the insurance policy entitled “Perils Insured Against,” provides in relevant part: “We insure against risk of direct loss to propertydescribed in Coverages A [Dwelling] and B [Other Structures] only if that loss is a physical loss to property.” ¹ Following that provision is a list of exceptions to coverage, which provides in relevant part: “[W]e do not insure loss ... caused by ... vandalism and malicious mischief, theft or attempted theft if the dwelling has been vacant for more than [thirty] consecutive days immediately before the loss” (vandalism exception). The policy also contains the following provision related to the list of exceptions to coverage, including the vandalism exception: “[A]ny ensuing loss to property described in Coverages A and B not excluded or excepted in this policy is covered” (ensuing loss provision). The policy does not contain definitions for the terms “vacant” or “ensuing loss.”

A property loss occurred at the premises on September 11, 2008, while the insurance policy between the parties was in full effect. An unidentified intruder stole copper pipes from the house, including breaking and removing a copper propane gas line that led to a clothes dryer in the basement of the house.² The basement filled with propane gas, which ultimately exploded and caused a fire that destroyed the house.

No one had resided at the house since July, 2007,³ although Peter Knutson ⁴ periodically visited to do remodeling or maintenance work. He also stored equipment and materials related to his fencing business in the unattached garage. No one was living at the house at the time of the claimed loss, and the house was not suitable for habitation at that time. The fire marshal who investigated the fire reported that the house did not show any signs of recent occupation at the time of the gas explosion.

The defendants filed a claim for coverage of their loss with the plaintiff. The plaintiff took the position that, pursuant to the terms of the policy, it was not liable because the claimed loss was caused by vandalism or theft, and the subject premises had been vacant for more than thirty consecutive days immediately preceding the loss. The plaintiff then filed this declaratory judgment action asking the court for a ruling that it had no duty to provide coverage for the defendants' claimed loss arising from the September 11, 2008 explosion and fire. The parties filed cross motions for summary judgment, which the court denied. The matter proceeded to a one day trial to the court, following which the court asked for supplemental briefing.

On March 29, 2012, the court issued a memorandum of decision. The court found on the basis of relevant case law and the evidence presented that the subject premises had been vacant for more than thirty consecutive days at the time of the explosion and fire and, accordingly, that the defendants' loss fell squarely within the vandalism exception in the insurance policy. The court also rejected the defendants' argument that the explosion and fire was an “ensuing loss” and, thus, a covered loss under the policy despite the vandalism exception. The court determined that the defendants failed to meet their burden of establishing that the policy's ensuing loss provision was applicable in the present case. The court rendered a declaratory judgment holding that the plaintiff was not liable for the loss suffered by the defendants. This appeal followed.

“The general principles that guide our review of insurance contract interpretations are well settled. [C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo.... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract.... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy.... 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.... Under those circumstances, the policy is to be given effect according to its terms.... When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result....

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading.... Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.” (Internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 309 Conn. 1, 9–10, 68 A.3d 1121 (2013).

“Finally, a trial court's resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard.... Such a finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [A] finding is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 90, 961 A.2d 387 (2009).

I

The defendants first claim that the court concluded that their loss was excluded from coverage pursuant to the policy's vandalism exception on the basis of an erroneous determination that their house had been vacant for more than thirty consecutive days at the time of the claimed loss. In particular, the defendants argue that the term “vacant” as used in the policy's vandalism exception is ambiguous and that in determining whether the subject premises was vacant, the court applied an overly restrictive definition that was inconsistent with the parties' intent. We do not agree.

To determine the common, natural, and ordinary meaning of an undefined term, it is proper to turn to the definition found in a dictionary. See DeCarlo & Doll, Inc. v. Dilozir, 45 Conn.App. 633, 648–49, 698 A.2d 318 (1997). Random House Webster's Unabridged Dictionary defines “vacant” as “having no contents; empty” and, with regard to a dwelling specifically, as “having no tenant and devoid of furniture, fixtures.” Random House Webster's Unabridged Dictionary (2d Ed. 2001). Similarly, Webster's Third New International Dictionary defines “vacant” as that term pertains to premises as “premises which are not lived in and from which the furniture and fixtures have been removed.” Webster's Third New International Dictionary (2002). As noted by the trial court, Black's Law Dictionary defines “vacant” as generally meaning “empty; unoccupied.” Black's Law Dictionary (9th Ed. 2009).⁵ Although no appellate court in this state has had the opportunity to construe the term “vacant” in the context of an insurance policy exception to coverage, our research reveals that courts in other jurisdictions that have considered the very issue now before us have applied a definition very similar to the definition applied by the trial court, and which, although not binding on this court, we find persuasive and consistent with the aforementioned dictionary definitions. See, e.g., American Mutual Fire Ins. Co. v. Durrence, 872 F.2d 378, 379 (11th Cir.1989) (loss excluded from coverage under vacancy clause of homeowner's policy because house “lacked amenities minimally necessary for human habitation”); Estes v. St. Paul Fire & Marine Ins. Co., 45 F.Supp.2d...