Preka v. Vermont Mutual Insurance Co.
| Decision Date | 11 December 2017 |
| Docket Number | CV156024492S |
| Court | Connecticut Superior Court |
| Parties | David PREKA et al. v. VERMONT MUTUAL INSURANCE COMPANY |
UNPUBLISHED OPINION
Caption Date: December 8, 2017
On February 16, 2016, the plaintiffs, David Preka and Jody Preka, filed a four-count amended complaint (complaint) against the defendant, Vermont Mutual Insurance Company. This action arises out of a contract for homeowner’s insurance entered into by the parties. The plaintiffs allege breach of the insurance contract in count one; breach of the implied covenant of good faith and fair dealing in count two violation of the Connecticut Unfair Trade Practices Act General Statutes § 42-110a et seq. (CUTPA), in count three; and unjust enrichment in count four. The defendant seeks summary judgment on all four counts. On November 30, 2016, the defendant filed a memorandum of law (memorandum in support) and several exhibits in support of its motion.[1] On April 28, 2017, the plaintiffs filed a memorandum of law in opposition to the motion (memorandum in opposition) with exhibits, to which the defendant filed a reply and additional exhibits on May 5, 2017. The motion was argued and submitted on May 8, 2017. The court granted the motion by summary ruling on November 30, 2017, to be followed by this memorandum of decision. The court apologizes for the delay in ruling.
In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the nonmoving party. Heisinger v. Cleary, 323 Conn. 765, 776, 150 A.3d 1136 (2016). Statements that are merely conclusions are not evidence. Stuart v. Freiberg, 316 Conn. 809, 828-29, 116 A.3d 1195 (2015). Viewing the parties’ submissions in this light, the basic facts are as follows.
The plaintiffs suffered certain losses of personal property, including cash, in a burglary at their residence on December 1, 2014. The plaintiffs had, and had paid for, a homeowner’s insurance policy (policy) issued by the defendant. That policy provided that, among the insureds’ duties in the event of a loss, the defendant could require them to submit to examination under oath concerning their claimed losses. The plaintiffs made a claim for losses due to the burglary. The defendant scheduled, and gave notice to the plaintiffs of, their examinations under oath, to be conducted on March 31, 2015. The plaintiffs, by their attorney, told the defendant that they would not attend the examination, and they did not attend. On April 5, 2015, the defendant denied the plaintiffs’ claim because of their refusal to submit to the examination under oath.
Practice Book § 17-49 provides that summary judgment must be rendered if the pleadings, affidavits and any other proof submitted demonstrate 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. Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach on the basis of the evidence. Rieffel v Johnston -Foote, 165 Conn.App. 391, 404, 139 A.3d 729 (citing Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 [1995]), cert. denied, 322 Conn. 904, 138 A.3d 289 (2016). Another way to view the standard for granting a motion for summary judgment is that the court must find that all the evidence needed to make the required findings is before the court and that, without weighing the credibility of any of that evidence, the movant is entitled to judgment. See Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); Kopacz v. Day Kimball Hospital of Windham City, Inc., 64 Conn.App. 263, 267, 779 A.2d 862 (2001).
In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist; however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists. State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). The court views the evidence in the light most favorable to the nonmoving party. Id. In ruling on the present motion, the court’s function is to determine whether any issues of material fact exist, not to decide any such issues. Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012).
The defendant moves for summary judgment on the breach of contract claim in count one on the ground that the plaintiffs breached a material condition of their policy by failing to submit to an examination under oath and thereby forfeited their coverage. As the defendant correctly notes, generally an insured’s compliance with a cooperation provision (or a more specific examination under oath provision) in an insurance policy is a condition the breach of which discharges the insurer’s duty to pay out for covered claims; O’Leary v. Lumbermen ’s Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979); Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, 116 Conn.App. 417, 432, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009); and provides the insurer an absolute defense to an action on the policy. Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, 142 Conn.App. 390, 408, 70 A.3d 74, cert. denied, 309 Conn. 909, 68 A.3d 662 (2013). For the insurer’s duty to be discharged, however, the insured’s noncompliance must be substantial or material; a policy condition is not broken by a failure of the insured in an immaterial or unsubstantial matter. Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 133, 302 A.2d 284 (1972); Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 433. In other words, the insured is held to a standard of substantial compliance rather than strict compliance.
Conduct on the part of the insured that does not strictly comply with a given policy provision will be regarded as an immaterial or unsubstantial failure where the conduct is of such a nature as to not be included within the fair intendment of the requirements of that provision. Arton v. Liberty Mutual Ins. Co., supra, 163 Conn. 133-34; Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 116 Conn.App. 433. Ordinarily, whether a party to a contract substantially complied with, or materially breached, the contract is a question of fact for the fact-finder, to be decided in light of the particular facts and circumstances of the case. Pack 2000, Inc. v. Cushman, 311 Conn. 662, 685, 89 A.3d 869 (2014); O’Leary v. Lumbermen’s Mutual Casualty Co., supra, 178 Conn. 38-39. In some circumstances, however, the issue of whether certain facts amount to a breach of contract is a mixed question of law and fact- and sometimes it is wholly a question of law. See Stevens v. Pierpont, 42 Conn. 360, 361-62 (1875). An issue that ordinarily presents a question of fact may become a question of law when the mind of a fair and reasonable factfinder could reach only one conclusion; see, e.g., Grenier v. Commissioner of Transportation, 306 Conn. 523, 558, 51 A.3d 367 (2012) (issue of proximate causation); or where the undisputed subordinate facts require such conclusion as a matter of law. See, e.g., Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 171, 117 A.3d 876 (), certs. denied, 318 Conn. 902, 122 A.3d 631, 123 A.3d 882 (2015). Thus, an insurer’s motion for summary judgment does not necessarily fail merely because it involves a question of substantial compliance. Indeed, our Appellate Court has on several occasions upheld the granting of such a motion. See, e.g., Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, supra, 433-34 (); Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 147, 822 A.2d 341 (2003) (concluding that, as matter of law, insureds’ failure to appear for examination under oath was breach of material condition of policy and insurer was thus justified in denying their claim).
In the present case, there is no genuine dispute as to any of the relevant, subsidiary facts, namely, the existence of a policy condition requiring the plaintiffs submit to examination under oath at the defendant’s election, the defendant’s election to examine the plaintiffs under oath, and the plaintiffs’ failure to appear for the scheduled examinations.
To establish the existence of the particular policy condition at issue, the defendant submitted a copy of the insurance policy in effect at the time of the alleged burglary.[2] , [3] Section one of the policy addresses coverage for real and personal property and thus governed the plaintiffs’ underlying insurance claim. In the subsection entitled " SECTION I- CONDITIONS, " the policy enumerates the plaintiffs’ " [d]uties [a]fter [l]oss, " one of which was to " [s]ubmit to examination under oath" " [a]s often as [the defendant] reasonably require[d]." The policy also provides, in the same subsection: " No action can be brought unless the policy provisions have been complied with ..." The import of the foregoing provisions is plain and unambiguous: the plaintiffs were required under the policy to submit to examination under oath when...
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