Authored by: Joseph Ciollo

Superior Court – Underinsured Motorist Coverage – Summary Judgment

In Bartolf v. Government Employees Insurance Company, the plaintiff sought Underinsured Motorist (“UIM”) benefits after being injured in an accident.  The plaintiff lived with his parents at the time of the accident.  GEICO filed a motion for summary judgment and argued that the plaintiff was not an insured under his parents’ policy and that the plaintiff was not entitled to UIM motorist benefits because at the time of the accident he was operating a vehicle that he owned and was insured under his own insurance policy.  It was uncontested that the GEICO policy only covered the three vehicles owned by the plaintiff’s parents, that none of those vehicles had any connection to the underlying accident, and that the plaintiff owned the vehicle involved in the underlying accident, which vehicle was insured by the plaintiff through his own underinsured motorist policy.  GEICO relied on the UIM coverage part of the policy which defined “insured” for purposes of that coverage.  The plaintiff argued that the policy language relied upon by GEICO was vague and ambiguous and further relied upon a different definition of “insured” found in the Liability coverage part of the policy.  The Court agreed that the definition of “insured” relied upon by GEICO mandated the outcome of the dispute, and further cited to the “Other Insurance” provision within the UIM coverage part as additional support for GEICO’s position.  The motion for summary judgment was granted.

Superior Court – Duty to Defend – Dog Bite Claim

In Certain Underwriters at Lloyd’s, London Subscribing to policy number 19PN-00375 v. Krasniqi Properties LLC et al, the plaintiff insurer filed a declaratory judgment action and moved for summary judgment, seeking a declaration that the plaintiff had no obligation to defend or indemnify its insured an underlying personal injury action.  The applicable liability insurance policy stated that coverage did not apply to “ ‘personal injury’…for any loss caused by an animal.”  The defendants argued that first, Connecticut’s concurrent cause doctrine applies, and second, the injured party’s claim for negligent infliction of emotional distress (“NIED”) was independent and separate from the other claims and unrelated to the injury caused by an animal.  As to the defendants’ second argument, they specially asserted that the conduct alleged that is related to the NIED claim occurred prior to the dog bite injury.  For example, the allegations of failure to remove the dog from the premises or failure to warn the injured party about the dog occurred prior to the dog bite injury.  However, the Court was not persuaded by these arguments and found that the NIED claim still related to the physical injury alleged to have occurred by the subject animal  The defendants made the alternative argument regarding the concurrent cause doctrine, specifically that it covered dog related injuries in a situation where it is claimed that a preceding, efficient cause, set the chain in motion for the dog injuries to result. The defendants also argued that the fact that the policy did not include an anti-concurrent cause (“ACC”) provision was a basis for the Court to afford the concurrent cause doctrine extra weight.  Generally, ACC provisions are interpreted to mean that where a loss results from multiple contributing causes, coverage is excluded if the insurer demonstrates that any of the concurrent or contributing causes of loss are excluded by the policy.  However, as the plaintiff correctly argued, a failure to include an ACC provision is not the only way to contract around the efficient proximate cause doctrine.  Instead, parties may contract around the efficient proximate cause doctrine through express and unambiguous contractual language evidencing their intent to do so.  In the present case, this is what the plaintiff did by excluding from coverage any ““ ‘personal injury’…caused by an animal.”  Since all counts of the complaint in the underlying case set forth a fact pattern that relied on and specifically related to a loss that was caused by an animal, the Court agreed with the plaintiff’s coverage position and granted the motion for summary judgment.

Superior Court – Property Loss – Resident Premises and Heat Exclusion

In Krusiewicz v. Kemper Independence Insurance Company, the plaintiff was the owner of property which had sustained substantial damage after pipes located on the second floor burst.  The defendant insured the property.  The defendant denied the plaintiff’s claim of loss on two grounds: 1) that the plaintiff did not reside at the “resident premises” at the time of the loss, and 2) that the plaintiff did not use reasonable care to maintain heat in the building, shut off the water or drain the water system.  Although the policy did not define “where you reside,” at trial the Court considered evidence of multiple factors to determine residency.  In or around 2014, the plaintiff had purchased another residence in a different town.  The evidence also included facts such as planned renovations at the insured premises, where the plaintiff maintained her voting and vehicle registration addresses, where the plaintiff receive mail, where the plaintiff slept and ate her meals, where the plaintiff maintained her vehicle, and where the plaintiff kept toiletries, clothing and furniture.  Upon consideration of all factors, the Court found that the plaintiff did not reside at the insured premises at the time of the loss or at any time during the policy period.  The policy excluded loss caused by, inter alia, freezing of a plumbing system or by discharge, leakage or overflow from within the system caused by freezing.  However, the exclusion did not apply if the insured used reasonable care to maintain heat in the building or shut off the water supply and drained all systems of water.  On the issue of heat maintenance, the evidence included water and gas bills showing minimal to no water use for the two months prior to the loss, despite the average temperature for both months to be under freezing.  In addition, according to the plaintiff’s restoration expert, the pipes broke because they froze.  The Court observed that the pipes froze because the plaintiff failed to maintain heat and failed to drain water from the system.  The Plaintiff testified that prior to the loss, she set the thermostat at 58 degrees, and would visit the property every two weeks for a cursory inspection, making sure it was heated and, on occasion, running the water in one or both of the two bathrooms.  In considering all of the evidence, the Court found that the plaintiff did not exercise reasonable care to maintain heat in the building, shut off the water supply or drain the system.  The Court found in favor of the defendant.