Ellis v. Covenant Insurance Co.

Full title: Lawrence ELLIS et al. v. COVENANT INSURANCE COMPANY

Court: Superior Court of Connecticut

Date published: Mar 8, 2018

CV166020645S (Conn. Super. Ct. Mar. 8, 2018)

Opinion

CV166020645S

03-08-2018

Lawrence ELLIS et al. v. COVENANT INSURANCE COMPANY

STEVENS, J.

UNPUBLISHED OPINION

OPINION

STEVENS, J.

Pending before the court is the defendant’s, Covenant Insurance Company, motion to amend its special defenses and counterclaim based on the argument that the amendment is warranted to conform the pleadings to the proof presented at the trial of this case. The plaintiffs, Lawrence Ellis (Ellis) and Debbie Ellis, have objected to the motion. For the following reasons, the motion is denied and the objection is sustained.

The complaint alleges that the plaintiffs have a homeowners insurance policy issued by the defendant, and that the defendant breached this policy by failing to provide insurance defense and coverage regarding a dog bite claim asserted against them by a Luz Frymus. In response, the defendant asserted special defenses and a counterclaim. The counterclaim seeks a declaration that the insurance policy is void. In the special defenses and the counterclaim, the defendant alleges that in acquiring the insurance policy in March 2012, Ellis falsely represented that he did not own a dog.

In contrast, the defendant’s motion to amend focuses on statements Ellis made to the insurance investigator who investigated the dog bite incident in 2014. During this investigation, Ellis told the investigator that he owned the dog that attacked Frymus. In the proposed amended special defenses, the defendant claims that Ellis’ statement that he owned the dog was a " material misrepresentation" because in his testimony at trial (and at his deposition), he stated that this statement was false because he did not own the dog. In the proposed amendment to the counterclaim, the defendant does not claim that this 2014 statement was false, but that it was made with an " intent to deceive."

The law is established that motions to amend the pleadings are governed by the reasonable exercise of the court’s discretion. Practice Book § 10-60. Amendments may be permitted at any time, and may be allowed even after trial in order to conform a variance between the allegations and the proof. Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957). " The factors to be considered include unreasonable delay, fairness to the opposing parties, and negligence of the party offering the amendment." Id.

In balancing these considerations with the defendant’s motion to amend, the court concludes that the motion should be denied. " Where a sound reason to amend is shown, the trial court must allow the amendment." Moore v. Sergi, 38 Conn.App. 829, 836, 664 A.2d 795 (1995). Here, the defendant has not offered any reason whatsoever why this amendment was not timely filed before the trial. Indeed, a good reason for the delay is not apparent, because the defendant must have known about the existence of Ellis’ statements at issue well before the trial, or well before the institution of this action. The law authorizing amendments in order to conform a pleading to the evidence does not exist to allow post-trial amendments that a party refrains from making prior to trial without any reason or justification.

Furthermore, when closely considered, the proposed amendments do not arise out of the same factual circumstances as the original pleading as the defendant contends. The defendant’s initial pleading was based on alleged misrepresentations made by Ellis in 2012 as part of the insurance application process. The proposed amendments are based on statements made in 2014 as part of the claim investigation. The proposed amendments are unrelated to the claims regarding the insurance application both in substance and time. Indeed, based on the defendant’s original special defenses and counterclaim, Ellis’ 2014 statements that he owned the dog were correct representations, not misrepresentations. Prior to trial, the plaintiffs could not have reasonably anticipated that the defendant would claim an " intent to deceive" based on statements that the defendant had previously maintained were true when made. The court rejects the defendant’s position that no prejudice or surprise to the plaintiffs is associated with the proposed amendments.

Contrary to the defendant’s argument, the Appellate Court’s decision in Moore v. Sergi, supra, 38 Conn.App. 829, does not support its position. In Moore, the trial court granted the defendants’ post-trial motion to amend their counterclaim, but as explained by the Appellate Court, the defendants were not negligent for failing to raise the claim earlier. Id., 838. The facts of the amendment arose from a " single group of facts" associated with the defendant’s original counterclaim and the defendants reasonably claimed that they first became aware of these facts during the course of the trial evidence. Id., 836-38. Neither of these situations exist in the present case.

Therefore, for these reasons, the defendant’s motion to amend is denied and the plaintiffs’ objection to the motion is sustained. Pursuant to the briefing schedule issued by the court, the plaintiffs shall file their post-trial brief within thirty days, the defendant shall file its post-trial brief within three weeks thereafter, and any reply by the plaintiffs may be filed within two weeks after that.

So ordered.