Authored by: Joseph Ciollo
Superior Court – Business Interruption – Summary Judgment
In Paolo Pavano et al v. Main Street Assurance Co. et al, the plaintiffs’ landscaping business was performing work on a customer’s property when a negligent driver collided with and damaged vehicles and equipment owned by the plaintiffs. The defendant insurance company promptly settled the property damage claims but refused coverage for business interruption losses claimed by the plaintiffs’ resulting from the loss of use of a dump truck that was damaged in the accident. The applicable insurance policy provided coverage for the loss of business income due to the suspension of operations caused by “loss of or damage to property at the described premises” noted in declarations page. There was no claim that the “described premises” included the location where the accident occurred. In the ensuing lawsuit, the plaintiffs alleged that defendants, an insurance company and insurance agent, misrepresented the insurance coverages that were in place to protect the plaintiffs’ landscaping business. More specifically, the plaintiffs claimed that the defendants provided positive assurances that the business would have business interruption insurance should vehicles or equipment owned by the business be damaged or destroyed at a location distant from where the business typically stored such vehicles and equipment. The plaintiffs also alleged that the insurance company neglected to send copies of the insurance policy in question at any time after it was initially issued in 2015 thereby denying the plaintiffs the opportunity to review the specific terms of their coverage for an extended period of time. The plaintiffs also alleged that the insurance company pursued a subrogation claim against a tortfeasor liable to the plaintiffs in a manner that would have impeded the plaintiffs’ right to recover from said tortfeasor. The defendants filed a motion for summary judgment on all counts of the complaint. As for the count alleging breach of contract against the insurance company, the plaintiffs did not rely on the actual written insurance contract and instead referenced matters outside the contract such as the representations on the insurance company’s website and declarations pages, as well as the representations of the insurance agent. The Court granted the motion on the breach of contract count. As for the count alleging violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) and the Connecticut Unfair Insurance Practices Act (“CUIPA”) against the insurance company, the Court partially granted the motion on the basis that the plaintiff failed to submit evidence to create an issue of fact as to whether the alleged conduct represented a general business practice. However, the Court denied that part of the motion directed to the plaintiff’s CUTPA / CUIPA claims regarding alleged misrepresentations of coverage contained in the declarations page and promotional material found on the insurance company’s website upon which the plaintiffs allegedly relied in purchasing the policy. As for the count alleging negligence against the insurance agent, the Court denied the motion on the basis that the plaintiffs created a genuine issue of material fact as to whether or not the agent was negligent. As for the count alleging CUTPA / CUIPA violations against the insurance agent, the Court granted the motion on the basis that the plaintiffs failed to create an issue of fact that any incomplete or inaccurate statements of the defendant regarding the extent of the business interruption coverage were purposefully or intentionally false.
Superior Court – Uninsured Motorist Coverage – Summary Judgment
In Rich v. Amica Mutual Ins. Co. et al, the plaintiff claimed to have sustained personal injuries as a result of a motor vehicle accident and filed suit against Amica for Uninsured Motorist (“UM”) benefits. The plaintiff alleged that he was operating a motor vehicle on a highway when an unidentified motor vehicle was traveling in the same direction. He alleged that a metal object detached from said unidentified motor vehicle that disabled a vehicle in the left lane directly in front of the plaintiff’s motor vehicle. The plaintiff evaded the disabled vehicle and a three-vehicle accident occurred. The plaintiff alleged that the collision was caused by the negligence of the unidentified driver from whose vehicle the metal object detached. Amica filed a motion for summary judgment on the basis that the plaintiff could not prove that his injuries were caused by the negligence of an unidentified motorist. The applicable insurance policy provided that if there is no physical contact with the vehicle causing the accident, the insured must prove by a fair preponderance of the evidence that the injuries resulted from the negligence of an unidentified motorist. Within the available evidence, none of the involved motorists were able to confirm that a metal object in fact detached from an unidentified vehicle. A state trooper responding to the accident scene confirmed that he had observed a metal object under the disabled vehicle. However, he could not provide any factual basis on its origin; nor could he identify the object. Significantly, the trooper was unable to even identify the metal object as a vehicle part. In addition, he had no personal knowledge as to when the metal object actually entered the roadway. The plaintiff’s contention as to a metal object becoming detached from another vehicle was determined to be inadmissible lay witness opinion testimony. As to the various theories of negligence which the plaintiff set forth concerning the conduct of an unidentified motorist, he did not submit evidence to support any of these allegations. Specifically, the plaintiff provided no evidence that the alleged metal object at issue detached from an unidentified vehicle, much less that it detached due to a negligent act of its operator. The only evidence presented by the plaintiff that a metal object may have been in any way associated with an unidentified non-contact vehicle was a statement by the operator of the disabled vehicle captured on the state trooper’s body camera footage. While at the accident scene and asked what happened, the operator stated “something fell out of a truck.” After observing that the statement may be admitted as a hearsay exception, the Court concluded that it was nonetheless insufficient to defeat summary judgment. The statement did not contain any specific description of the “something” that the operated stated “fell out of a truck.” Significantly, the operator did not make any statement that something detached from the truck as alleged by the plaintiff. Even if it could be inferred from the trooper’s testimony and the operator’s statement on the body camera footage that the metal object that disabled her vehicle and was observed underneath her vehicle had fallen from a truck, the operator did not make any observations that would support the notion that the object fell as a result of any negligent act by the operator of the vehicle. Notably, when deposed, the operator testified that at the accident scene she had assumed that the object “fell out of a truck” but did not have any personal knowledge of the same. Ultimately, the Court found no evidence that the operator of an unidentified vehicle, through his or her actions did anything or failed to do something to cause the metal object to be on the road. Amica’s motion for summary judgment was granted.
U.S. District Court – Discovery – Communications With Insurance Representatives
In Geenty v. Pasta Technologies Group SRL et al, the plaintiff filed a product liability suit for injuries sustained when using a machine designed, manufactured, and installed by the defendant, Pasta Technologies Group SRL (“Pasta Tech”). Pasta Tech then filed a third-party complaint against The Dennis Group, Inc., (“Dennis”) for indemnification and contribution alleging that Dennis negligently modified the machine after Pasta Tech installed it. Plaintiff did not file a direct claim against Dennis. Dennis filed a motion to compel which sought information about insurance coverage Pasta Tech might use to pay a potential judgment in the plaintiff’s favor. Pasta Tech disagreed with the position taken by its Italian insurer regarding the applicable coverage limit and retained counsel to pursue the issue in Italy against that insurer. Dennis’ motion to compel specifically sought communications between Pasta Tech’s coverage counsel and the insurer as well as the written notice provided by Pasta Tech to its insurance broker regarding this action. Dennis argued that the insurance information was relevant to determining whether Pasta Tech could satisfy a potential judgment because, if not, liability could be reallocated to Dennis. However, the Court noted that Connecticut law does not permit post-judgment reallocation of liability among parties to a product liability case. The Court found that Dennis’ concern that Pasta Tech’s liability to the plaintiff could be reallocated to Dennis was misplaced. Not only could there be no post-judgment reallocation of fault as between Pasta Tech and Dennis, but also Dennis had no potential joint and several liability because the plaintiff had not directly sued Dennis. According to the Court, the only arguable relevance of Pasta Tech’s insurance information was to assist Dennis, in the context of global settlement discussions, in assessing whether Pasta Tech had the means to pay a potential damages award—if not, then Dennis’ potential indemnification or contribution exposure to Pasta Tech theoretically could be lessened. Pasta Tech had already disclosed its insurance policy, declarations page, and coverage letter, which the Court found to be adequate to meet Dennis’ need under the circumstances. The Court noted that further investigation into coverage disputes occurring in Italy appeared to be a costly distraction with incremental benefit, at most, and so was not proportional to the needs of the case. The motion to compel was denied, although Pasta Tech was ordered to produce a copy of any letter from the insurer formally revising its position regarding the amount of insurance coverage applicable to the action and/or a copy of any decision by a proper authority establishing the applicable amount of coverage.
