1049 ASYLUM LTD. v. KINNEY PIKE INS., INC. ET AL.

2005 Ct. Sup. 13355-ae
No. CV 02 0816344Connecticut Superior Court Judicial District of Hartford at Hartford
October 26, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE KINNEY PIKE INSURANCE, INC.’S MOTION FOR SUMMARY JUDGMENT #172
LOIS TANZER, JUDGE.

FACTS
On June 26, 2003, the plaintiff, 1049 Asylum, Limited Partnership (1049 Asylum), filed an eleven-count complaint against defendant Kinney Pike Insurance, Inc. (Kinney Pike) and two co-defendants.[1] The complaint alleges in part negligence, breach of contract and negligent misrepresentation against Kinney Pike. The complaint arises out of an insurance claim that followed damage to 1049 Asylum’s commercial property. 1049 Asylum alleges that Kinney Pike, as an insurance broker for 1049 Asylum, made a number of misrepresentations that 1049 Asylum relied upon, resulting in the acquisition of an insurance policy that was inadequate to cover 1049 Asylum’s losses after the property sustained damage. On August 28, 2003, Kinney Pike filed an answer and seven special defenses. The answer denies 1049 Asylum’s allegations of negligence, breach of contract and negligent misrepresentation, and the special defenses allege in part that 1049 Asylum’s injuries were caused by its own negligence.

On March 29, 2005, Kinney Pike filed a motion for summary judgment accompanied by a memorandum of law. In support of the motion, Kinney Pike submitted a number of depositions, a copy of the insurance binder, an affidavit of their expert witness and other supporting documents. On June 10, 2005, 1049 Asylum filed an objection to Kinney Pike’s motion for summary judgment accompanied by a memorandum of law. In support of the objection, 1049 Asylum submitted depositions, a copy of the insurance policy, and other supporting documents.

The following facts are undisputed. Prior to July 28, 2000, a representative for 1049 Asylum contacted Kinney Pike for help in procuring an insurance policy for a building the partnership was preparing to purchase in Hartford, Connecticut. This representative had done CT Page 13355-af business with Kinney Pike for several years. Kinney Pike obtained an insurance binder from Peerless Insurance Company (Peerless) with an effective date of July 31, 2000, with a coverage limit of $5 million. At 1049 Asylum’s request, that limit was lowered to $2.5 million and a new binder was issued. Kinney Pike warned 1049 Asylum’s representatives of the risks of lowering the limit on the policy. On December 28, 2000, a burst pipe in the building flooded the basement, resulting in significant damage. A claim was submitted to Peerless for the loss.

Peerless adjusted the loss, and determined that the value of the building was $7.488 million. Concluding that the building was underinsured, Peerless assessed a 37% coinsurance penalty to the damage calculations. They then issued payments to 1049 Asylum in the amount of $39,382.32. A final payment of $18,681.72, which came with a stipulation that acceptance of the payment would constitute a full resolution of the claim, was not cashed or deposited by 1049 Asylum, which then commenced the present action.

DISCUSSION
“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 fact 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 no real issue to be tried.” (Citations omitted.) 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). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.)Martel v. Metropolitan District Commission, 275 Conn. 38, 46 (2005). “Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 46-47. CT Page 13355-ag

“[T]he `genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence.” (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).

“`Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” Id.
379. “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

Kinney Park argues that it is entitled to summary judgment on the grounds that 1049 Asylum’s claims are not ripe. “The justiciability of a claim is related to its ripeness. The basic rationale [of the ripeness doctrine] is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . .” (Internal quotation marks omitted.) Forcier v. Sunnydale Developers, 84 Conn.App. 858, 865, 856 A.2d 416 (2004). “[A court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 536, 871 A.2d 380 (2005).

In support of this contention, Kinney Pike cites to Tri-State Contracting, LLC v. Ferguson McGuire, Inc., Superior Court, judicial district of Tolland, Docket No, CV 03 0080812 (September 10, 2003, Sferrazza, J.) (35 Conn. L. Rptr. 453). In that case, the plaintiff’s suit against the insurance broker for failing to provide coverage was deemed not ripe for adjudication because the claim was directly contingent upon an action for a declaratory judgment by the defendant against the plaintiff. Here, Kinney Park alleges that because the Boyden Company, a co-defendant and 1049 Asylum’s real estate manager, is entitled to coverage under the policy, 1049 Asylum’s claim is not ripe for CT Page 13355-ah adjudication. Kinney Park, however, fails to provide any evidence that 1049 Asylum’s claim against it is contingent on any pending judgment by or against Boyden Company. Therefore, 1049 Asylum’s claim is ripe.

Kinney Pike further moves for summary judgment on the grounds that 1049 Asylum produced no evidence of negligence since Kinney Pike procured the requested coverage; that Kinney Pike did not owe a duty to procure coverage not requested by 1049 Asylum; and that even if there was a duty, it was not breached.

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Coun. 442, 446, 476 A.2d 582 (1984). “Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . .” (Citations omitted; internal quotation marks omitted.)Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

An insurance broker “owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss.” Ursini v. Goldman, 118 Conn. 554, 559, 173 A. 789 (1934). “[T]he duty imposed on an insurance broker to procure insurance . . . simply requires the broker to act reasonably and without delay to try to obtain the requested coverage . . .” Preston v. Chartkoff, Superior Court, judicial district of Ansonia-Milford, Docket No. 02 0071112 (January 30, 2004, Lager, J.).

The evidence shows disputes of fact as to whether Kinney Pike acted reasonably to obtain the requested coverage. Depositions of witnesses indicate disputes of fact as to whether the insurance policy it procured for 1049 Asylum was the one specifically requested. The parties’ experts disagree as to the preferred method of insurance for 1049 Asylum, and whether this type of insurance was available at the time the policy was procured. The evidence also shows disputes as to whether 1049 Asylum understood what the term “actual cash value” meant in their particular policy, whether or not this was sufficiently explained to them and what, if any, duty Kinney Pike had to explain it to them. Such disputes should be weighed by a trier of fact.

Kinney Pike also moves for summary judgment on the grounds that 1049 CT Page 13355-ai Asylum’s failure to read the procured insurance policy requires summary judgment. “[T]he general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable business prudence off his guard in the matter.” Ursini v. Goldman, supra, 118 Conn. 562. In Ursini, it was held that the court was “correct in leaving to the jury . . . determination as to whether the plaintiff, under all the circumstances, was chargeable with such want of diligence in not informing himself as to the contents of the policy as to charge him with knowledge thereof.” Id. 563. Sufficient evidence exists to leave to the determination of a jury whether or not 1049 Asylum’s representative was misled or put “off his guard” as to various terms in the procured insurance policy.

Finally, Kinney Pike moves for summary judgment on the grounds that 1049 Asylum has failed to establish genuine issues of fact for its claims of negligent misrepresentation and breach of contract. “[E]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth, . . . The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Citations omitted; internal quotation marks omitted.)Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73, 873 A.2d 929 (2005). There is conflicting evidence in this case about what the procured policy contained, whether or not it was the type of policy specifically requested by 1049 Asylum, whether it was similar to others that 1049 Asylum had procured from Kinney Pike in the past, and how Kinney Pike went about soliciting insurance companies for coverage. Based on evidence of discussions between 1049 Asylum and Kinney Pike, as well as the depositions of both expert witnesses, there are disputes of fact about whether there was negligent misrepresentation and it is for a trier of fact to determine if the reliance on the statements in question were justified.

For the foregoing reasons, Kinney Pike’s motion for summary judgment is denied. CT Page 13355-aj

[1] The other co-defendants to the complaint are Peerless Insurance Company and The Boyden Company. Judgment was entered on March 20, 2005 as to the Boyden Company. Peerless has filed a separate motion for partial summary judgment in this matter.

CT Page 13355-ak

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