In Gottlieb v. Fidelity National Title Insurance Company, the plaintiff filed a two-count complaint against her insurer alleging breach of contract and breach of the covenant of good faith and fair dealing. In a separate action, the plaintiff had been sued by her neighbors, who alleged that the plaintiff used an easement that existed on the neighbors’ property in a manner that went beyond the scope of the easement. The plaintiff’s property abutted the neighbors’ property, which was burdened by an easement for the benefit of the plaintiff’s property. The plaintiff sought to recover attorney’s fees that she incurred in defending the lawsuit filed by the neighbors. The insurer filed a motion for summary judgment. Within the subject title insurance policy, the covered risks section stated, in pertinent part, “When someone else has a right to limit your use of the land.” The plaintiff argued that this language obligated the insurer to defend her because according to her, the neighbors’ disputed the plaintiff’s title or rights to use or occupy a portion of the property that was deeded to the plaintiff. The Court noted that pursuant to the definition of an easement, it is a non-possessory right to enter onto the land of another. The Court further observed that no party in the factual scenario of the underlying lawsuit was attempting to limit the plaintiff’s use of her own land or the easement. Rather, the neighbors’ alleged trespass and nuisance as to their land (the neighbors’ land) and the plaintiff’s use of the easement was over and beyond what was allowed under the provisions of the easement. The neighbors did not dispute the plaintiff’s title or rights to the easement. There was no dispute over the existence of the easement, but only that the plaintiff had used the easement in a manner that exceeded its scope. The coverage determination of the initial claim was to be measured solely by the allegations of the submitted complaint, and not upon anything that occurred during the trial. The Court found there was no genuine issue of material issue of fact that existed as to whether the insurer had a duty to defend the plaintiff in the underlying lawsuit and that the terms of the policy were clear and unambiguous. The motion for summary judgment was granted.
Author by : Joesph R. Ciollo
U.S. District Court – Material Misrepresentation – Summary Judgment
In Union Mutual Fire Ins. Co. v. Krajewski et al, the insurer filed a complaint for declaratory judgment seeking a declaration that it had no duty to defend or indemnify its insured in connection with a separate underlying action filed by homeowners for damages arising out of incomplete and deficient home improvement work performed by the insured. The insurer filed a motion for summary judgment and argued that it had no duty to defend or indemnify the insured due to material misrepresentations made within the application for insurance, and due to the insured’s failure to cooperate with the insurer’s requests for information, documents and examinations under oath. The insured did not appear in the declaratory judgment action but the homeowner plaintiffs in the underlying action appeared and opposed the motion for summary judgment. The insurer presented evidence that the insured misrepresented that he performed masonry work only, did not have any incidental operations, did not have any employees, did not subcontract work, did not perform any demolition or excavation operations, and did not use scaffolding, cranes, or heavy equipment. The insurer argued that these misrepresentations induced it to issue the insurance policy that it would not have issued had it known the truth about the insured’s business. The homeowners argued that the insurer was not prejudiced by the misrepresentations made by the insured. The Court agreed that misrepresentations were material and were such that the policy was rendered void. The Court found that the misrepresentations were not “innocent” in nature. The motion for summary judgment was granted on the basis of the material misrepresentations and the policy being void. The Court did not reach the issue of the insured’s failure to cooperate with the insurer.
U.S. District Court – Personal and Advertising Injury – Exhibitions and Related Marketing Exclusion
In Norbriga et al v. Clear Blue Specialty Ins. Co., the plaintiffs were professional models who alleged that their images, likenesses, and advertising ideas appeared without their consent in advertising materials for an adult entertainment venue. The plaintiffs filed suit against the venue and reached a settlement through which they were assigned any rights, remedies and claims the venue had against the venue’s insurer. The plaintiffs then filed suit against the insurer for breach of contract, violations of the Connecticut Unfair Trade Practices Act and Connecticut Unfair Insurance Practices Act, and seeking a declaratory judgment that the insurer had an obligation to defend and indemnify the venue in the underlying action. The insurer moved for judgment on the pleadings on the plaintiffs’ declaratory judgment claim, arguing that because the venue’s conduct fell under a coverage exclusion for “exhibitions and related marketing” (the “ERM exclusion”), there was no duty to defend or indemnify. The insurer also moved for summary judgment on the plaintiffs’ remaining claims. After a detailed analysis, the Court held that the ERM exclusion was neither illusory nor ambiguous as to its exclusion of injuries arising from advertising for “promotional events,” and thus excluded coverage for the venue’s alleged injuries, as pursued by the plaintiffs. In rejecting the plaintiff’s argument of illusory coverage, the Court found there to be a clearly defined subset of personal and advertising injuries where coverage would apply, rendering it non-illusory. The Court also found that the ERM exclusion for “promotional events” unambiguously applied to the advertisements at issue in the present case. The motion for judgment on the pleadings was granted. Also, in large part due to the Court’s finding of no coverage, the motion for summary judgment on the remaining claims was also granted.
Superior Court – Duty to Defend – Summary Judgment
