Opinion
No. FST CV 11 6008823 S
September 13, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (105.00)
I. Background
The revised complaint of the plaintiff Amica Mutual Insurance Company (Amica) alleges that Amica insured the premises at 7 Hervey Street in Greenwich, Connecticut owned by John Mihalec, and at the relevant times, leased to the defendants Andrew Muldowney and Kalynn Tupa. Amica alleges that due to the defendants' breach of several terms of the lease and negligence over $40,000.00 of damage occurred to the premises from frozen pipes and a cracked radiator. Amica alleges it paid this amount, less a deductible, to the landlord, and is subrogated to, and the assignee of, Mihalec's rights of recovery.
The defendants have moved to strike all four counts of the complaint (negligence and beach of contract counts against each defendant). The motion contends that there is no express agreement between the landlord (Mihalec) and the defendants that the landlord's insurer has a right of subrogation for losses paid to its insured, and according to Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28 (2006), Amica's claim must fail unless there is such an express subrogation agreement. Id. 37-39.
Amica opposes the motion to strike asserting that the circumstances of this case are a classic example of where the equitable right of subrogation, as recognized in Wasko v. Manella, 269 Conn. 527 (2004), arises and the facts of the agreement between landlord and the defendants are sufficiently different as to make Middlesex Mutual Assurance Co. v. Vaszil, supra, inapplicable.
II. Discussion
The court is cognizant of the well recognized rules for determining motions to strike, and those rules will be applied here. The operative Amica complaint makes certain allegations about the defendants' actions and the contents and provisions of the lease agreement between the landlord and the defendants which, for the purposes of this motion, are assumed to be true. Additionally, a copy of the lease dated April 2, 2009 and in effect from April 29, 2009 through April 30, 2010 is attached to and made a part of the pleadings. The complaint makes the following relevant allegations about the lease:
1) the defendants were to pay for heating oil and use the heating system in a prudent fashion;
2) the defendants were not to negligently damage the premises;
3) the defendants were to pay for personal liability insurance for their own and the landlord's benefit insuring the property damage up to $1 million;
4) during vacancy of the premises of 14 days or more the heat should be maintained at 60 degrees.
Complaint ¶¶ 4-8. In addition, the lease provided that if the defendants made the premises unfit or unlivable, the defendants had the duty to make or pay for the necessary repairs. Lease § 11(b).
The complaint also alleged that the defendants left the premises vacant for approximately two weeks, returning January 5, 2010 to find the pipes frozen and the radiator damaged. It is further alleged that during their absence the heating oil had run out and the temperature had been set at 50 degrees.
In Middlesex Mutual Insurance Co. v. Vaszil, supra, the Connecticut Supreme Court noted that in an earlier case, DiLullo v. Joseph, 259 Conn. 847 (2002), it had embraced the proposition that there was no right of subrogation against a tenant by a landlord's insurer absent a " specific agreement to the contrary." (Emphasis in original.) Middlesex Mutual Assurance, supra, 279 Conn. 37. The court went on to note that the lease in that case did not "remotely inform the defendant that they would be liable to their landlord's insurer" for fire damages to the landlord's building; the lease neither informed the tenants to insure their own apartment nor "the need to obtain insurance in the amount sufficient to cover the value of entire multiunit apartment building." Id. Finally, the Middlesex Mutual Assurance court said the lease it was dealing with suggested the landlord would not pay anything should the tenant do damage to the premises in derogation of the lease terms. Id., 38-39. While the last referenced statement of the Connecticut Supreme Court is murky, it is crystal clear that the lease in this case, especially the provision that the defendants were required to obtain $1.0 million in insurance, is so markedly different as to remove this case from controlling purview of Middlesex Mutual Assurance. If the premises were made unfit by the defendants the lease between Mihalec and the defendants specifically required the defendants to make the repairs or to pay for the repairs if made by others. The lease provision requiring the defendants to maintain a minimum of $1.0 million liability insurance for their own and landlord's benefit in the care of property damage, is an explicit warning of potential liability to the landlord. These two provisions, on their face, put the defendant on notice that they would be liable for the damage they caused through negligence or breach of contract. Furthermore, the defendants were informed of the need for them to obtain insurance apparently sufficient to cover the value of the leased premises and certainly sufficient to cover the damage done here.
In DiLullo v. Joseph, the Connecticut Supreme Court made clear that its decision only established a "default" rule, and tenants and landlords were always free to allocate risks and insurance coverages as they saw fit in their lease.
Unlike the situation here, the tenants in Middlesex Mutual Assurance were being asked to reimburse the insurer for expenses incurred from damage to rental units other than the tenants' unit.
The court finds that the lease executed by the defendants put them on notice that they would be liable for more than just the rent and security deposit under certain circumstances, and the lease terms are sufficiently explicit in that regard that neither DiLullo v. Joseph, supra, nor Middlesex Mutual Assurance are not a bar to the action as pleaded. Further, the court finds that the economic waste concern articulated in DiLullo, supra, 259 Conn. 854, which can arise if each tenant in a multi-unit rental property is required to obtain insurance to cover the potential losses of the landlord is ameliorated substantially where, as here, the defendants are the only tenant of the property.
The motion to strike is denied, for the reasons stated above.